A.

Concept and Definition

1 The term and concept of 'war crimes' is not used uniformly. A wider approach defines war
crimes as all acts constituting a violation of the lawS or customs of war, irrespective of whether the
conduct is criminal (Werle and Jessberger [2014] 391l; US Army Military Manual, § 499, FM 27-10;
JS Pictet, ed, Geneva Convention I[1957] 351 ). The present contribution is based on a definition of
war crimes in stricto sensu: A war crime is any act, or omission, committed in an armed conflict
that constitutes a serious violation of the laws and customs of international humanitarian law and
has been criminalized by international treaty or customary law (Humanitarian Law, International).
This definition requires at least two conditions qualifying a conduct to a war crime. First, a violation
of international humanitarian law, and second, the criminalization of the conduct under treaty or
customary international law (Cassese (2013] 67 ). The applicability of the rules of international
humanitarian law implies that a war crime must be satisfactorily connected to an armed conflict
(Armed Conflict intermational; Armed Conflict, Non-International; Belligerency). The second
condition requires that customary or international treaty law must provide legal norms entailing
individual criminal responsibility for the perpetration of such a violation.
2 In contrast to crimes against humanity and genocide, crimes which are established as
independent crimes under international law, the concept of war crimes is based on the
accessoriness between the primary rules concerning prohibited acts under international
humanitarian law and secondary rules concerning the punishment of war crimes. This structure
underlies the dynamic character of the concept of war crimes, as it can be subject to change
(Bothe in Cassese/Gaeta/jones [2002] 381 ). While, within the classical understanding of
international law, violation of its rules by State officials or individuals only engage collective State
responsibility, the concept of war crimes goes beyond that principle and imposes liabilities upon
individuals as wel. War crimes can be prosecuted directy by International Criminal Tribunals or
indirectly by national courts. The decision depends on whether the jurisdiction of the international
court is primary or complementary to nationalcourts (see InternationalCriminal Law). As will be
shown, war crimes are not only restricted to international armed conflicts, they can also be
committed during non-international armed conflicts.

B. Historical Evolution of Legal Rules

1, Early Developments
3 The origins of war crimes can be found in the traditional laws of war, today called international
humanitarian law; these laws regulate the conduct of armed conflicts whose rules were derived
from international conventions and customary international law. The evolution of war crimes is part
of the progressive development and codification of international humanitarian law by promoting
individual criminal responsibility for serious violations committed under its norms. The idea of
individual criminal responsibility-that individuals under international law should be responsible for
serious violations of the laws of war and not only the belligerent State-is not an invention of the
20th century; it has developed in stages and goes back to the practice of trial and punishment for
those guilty of such violations in the medieval period (La Haye 104 ). One of the earliest examples
of an international prosecution in Medieval Europe is the 1474 trial of Peter von Hagenbach in
Breisach, Germany, which convicted von Hagenbach of murder, rape, perjury, and other crimes
against the 'laws of God and man' (Schwarzenberger 465 ). Von Hagenbach led a regime of
brutality and terror and committed numerous violent acts against the inhabitants of Breisach and
neighboring territories. A large coalition (France, Bern, Austria and the towns and knights of the
Upper Rhine)put these atrOcities to an end and installed an ad hoc tribunal consisting of 28 judges
from the allies. Even though the Hagenbach trial differed extensively from contemporary
developments of International Criminal Tribunals, it is often cited as the 'first reported international
war crime trial' (Bassiouni [1992] 197 ).
4 At the request of the United States President Abraham Lincoln, Francis Lieber, a Columbia
University professor of law, prepared the Lieber Code of 1863 ('Instructions for the Government of
Armies of the United States in the Field'), a text which represents the first attempt to codify the laws
of war. These instuc tions, applicable to the Union army during the American Civil War, established
the principle of individual criminal responsibility for comprehensive violations listed in the text, such
as pillage, rape, or abuse of prisoners (see Art. 44 Instruc tionsfor the Govemment of Armies of the
United States in the Field). Codified as a municipal law instrument, the prosecution of war criminals
was limited to Ameican Soldiers and only binding to them. Prior to the 19th century, the regulation
of the laws of war was a matter of national legislation (Meron 1 ). Nonetheless, the codification had
an enormous influence on the future evolution of the laws of war and the principle of criminalizing
violations of the laws and customs of war.

5 As a result of the Hague Peace Conferences (Hague Peace Conferences [1899 and 1907]), the
Hague Conventions of 1899 and 1907 were the first mutlateral agreements regulating the conduct
of war. However, they neither clarified nor limited the principle of individual crimrinal responsibility
and focused only on the rights and obligations of States as the classical subjects of international
law.

6 In 1919, the judicial prosecution of individuals who had comitted war crimes during Wortd War I
was reflected by the Commission on the Responsibility of the Authors of the War and on
Enforcement of Penalties that analysed the applicable legal norms and listed 32 offences involving
serious violations of the laws and customs of war (Commission on the Responsibility of the Authors
of the War and on Enforc ement of Penalties [1920] 14 AJIL 95).
7 The Versailles Peace Treaty (1919) (Treaty of Peace between the Allied and ASSociated Powers
and Germany [signed 28 June 1919, entered into force 10 January 1920] 225 CTS 188) was the first
international convention to provide specific regulation of individual criminal responsibility for
violations of international humanitarian law. Art 227 Versailles Peace Treaty included the
indictment and trial of the former Emperor of Germany and Art 228 (1) recogniz ed 'the right of the
Allied and Associated Powers to bring before military tribunals persons accused of having
committed acts in violation of the laws and customs of war.' To fulfill this provision the Versailles
(Art.
Peace Treaty obliged the govemment of the German Reich to hand over the accused persons
228 (2) and to Support the prosecution of the Allies (Art 230). However, no international tribunal
criminals and
was established. Instead, the allied powers relinquished their right to prosecute war
the Geman
accepted the compromise offered by the German government to hold the trials before
end, only 13
Reich Supreme Court in Leipzig (Bassiouni [2008] 34; Mc Cormack [1997] 49 ). In the to a judgment of
proceedings against alleged war criminals reached the trial stage, nine trials came
beginning of the
which none was fully executed (Werle and Jessberger (2014] 4). This disastrous
prosecution of war crimes was completed by the fact that the German Emperor was granted asylum
in the Netherlands and was never held individually accountable for his acts.
probably the recognition of
8 The crucial historical moment for the prosecution of war crimes was
Nuremberg
individualcriminal responsibility in a statement by the International Military Tribunal of punished
individuals can be
("IMT") that pointed out in 1946: "E]nough has been said to show that not by
are committed by men,
for violations of International Law. Crimes against international law
crimes can the provisions of
abstract entities, and only by punishing individuals who commit such
Military Tribunal for the Trial of
international law be enforced' Wudgment of the International
lst October 1946] 65). It was also
German Major War Criminals [Nuremberg 30th September and
'violations of the laws or customs of
the Charter of the IMT that defined war crimes in Art. 6 (b) as
of the Hague Regulations of
war.' In consideration of this provision, the IMT held that violations
recognized as war crimes under
1907 and the Geneva Conventions of 1929 'were already
international law' ((udgment 253). On the important question of
how the Hague and Geneva
tribunaldid 'not [find] necessary to
Regulations had generated customary international law, the recognized
decide' and simply stated that 'by 1939 these rules laid down in the convention were
by all civilized nations, and were regarded as being declaratory of the laws and customs of war
which are referred to in Article 6 (b) of the Charter Uudgment 254). Even though this finding was
not entirely justified, it is beyond controversy that the testimony of the IMT constituteda crucial
stepping stone in the recognition of individual criminal responsibility for war crimes committed
under international law. In contrast to the aftermath of World War I, the IMT and the International
Military Tribunal for the Far East in Tokyo ('IMTFE') prosecuted officials for their perpetration of war
crimes during World War ll (International Military Tribunals). Despite that, the problem of victor's
justice remained unresolved given that the practice of selective prosecution of the vanquished was
continued by these tribunals.

2. The Grave Breaches Regime of the Geneva Convetions

9 After World War l, to ensure the respect of the laws of war, the Geneva Conventions HV (1949)
for the protection of war victims listed certain serious violations of the Conventions as 'grave
breaches, providing individual criminal responsibility to persons committing such breaches (see
Arts 49-51 Geneva Conventionl, Arts 50-52 Geneva Convention I, Arts 129-31 Geneva
Convention IlI, Arts 146-48 Geneva Convention V). As a consequence, under the Geneva
Conventions the signatory States are compelled to provide penal sancion for such acts under
domestic law and to try perpetrators of grave breaches or to extradite them to another State at its
request (aut dedere aut iudicare) ((S Pictet, Commentary vol 4 [1958] 591 ). In each of the
Conventions, grave breaches are defined by an exhaustive list of acts applicable in international
armed conflicts. Art. 85 (5) Additional Protocol I codified that the grave breaches of the Geneva
Conventions and of the Protocol 'should be regarded as war crimes' (Geneva Conventions
Additional Protocol ). Due to the universal recognition of the Geneva Conventions by all States (195
of 195), they are generally considered to reflect customary international law (0'Connell in Fleck
[2013] 27, margin 126 ). However, Additional Protocol I, which extends the definition of grave
breaches, has not enjoyed the same universal acceptance as the four Geneva Conventions (173
of 195, Sep 2014). The regime of grave breaches of the Geneva Conventions restricts the scope of
individual criminal responsibility by the distünction of acts constitutng an ordinary violation of the
laws of war and those constituting serious violations (grave breaches). Only the latter should
amount to war crimes and entail individual criminal responsibility for the perpetrators of those acts.
Hence, not any ordinary violation of the Geneva Conventions qualifies as a war crime (Dinstein in
Dinstein and Tabory (1996] 4 ). The list of 'grave breaches' in the Geneva Conventions and its
Additional Protocol l s primarily concerned with, and must be directed against, persons or property
protected under the Conventions, Such as prisoners of war, the sick or wounded, or civilians, and
entails individualcriminal responsiblity not only for committing but also for ordering grave breaches
to be committed.

10 The concept of grave breaches raises the question of the relationship between the two
categories: war crimes and grave breaches. A general response has already been given by the
wording of Art 86 (5) Additional Protocol l, which states that grave breaches shall be regarded as
war crimes. According to this, grave breaches are nothing more than a treaty-based type of war
crime. The peculiarity indeed consists of their character as 'secondary rule' through which
violations of certain primary rules of international humanitarian law entail individual criminal
responsibility in International Law (Abi-Saab 114 ). By introducing the regime of grave breaches, the
diffic ult duty of identifying customary or treaty rules establishing breaches of the ius in bello as war
crimes has been simplified by the constitution into a proper category of particularly serious
violations. That does not mean that that the range of war crimes under customary international law
is confined to such 'grave breaches'. On the other hand, not every 'grave breach' of Additional
Protocol lis necessarily a war crime under customary international law (eg, apartheid).

3. The International Criminal Tribunals for the Former Yugoslavia

and Rwanda
 prosecution of
first decisive development concerning the
Cold War, the
11 After the time of the war was the establishment of the
International Criminal
violations of the laws of Rwanda
individuals for International Criminal Tribunal for
(ICTY), as well as the
Tribunal for the Former Yugoslavia by the United Nations Security
Council and
(ICTR), both of which were created as
ad hoc tribunals
and Art. 25 UN Charter.
find their legal basis in Chapter VIl
(Yugoslavia, Dissolution of),
restricted to the fomer Yuqoslavia
12 The Statute of the ICTY, which is categories of them: Art 2 ICTY Statute penalizes
term 'war crimes' but included two
did not use the Conventions against persons or property
protected under the
'grave breaches of the Geneva international armed conflict Art. 3
Convention' committed in an
provisions of the relevant Geneva illustrative list that
penalizes 'violations of the laws or customs of war', amended by an
ICTY Statute certain provisions of
contains elements of the Hague Rules of Land
and Warfare as well as
Additional Protocol Iof the Geneva Conventions. Art
3 ICTY Statute, as interpreted by the Tribunal,
grave
a 'general provision covering all violations of humanitarian law' not qualified as
serves as
humanity regardless of whether the violation occurs
breaches, acts of genocide, or crimes against
armed conflict (Prosecutorv Tadi
within the context of an international or non-international
['Interlocutory Appeal Decision'] ICTY
[Decision on the Defence Motion for Interlocutory Appeal] Case, the Appeals Chamber ultimately
94-1-AR72 [2 October 1995] para. 89; Wolf 26 ). In the Tadi
international law imposes criminal
concluded that 'all of these factors confirm that customary
supplemented by other general principles and
liability for serious violations of Common Article 3, as
for breaching certain fundamental
rules of the protecion of victims of internal armed conflict, and
principles and rules regarding means and methods of combat in civil
strife' (Interlocutory Appeal
in the Tadi case
Decision paras 128-37, 134). This interpretation of the Appeals Chamber
for serious
signalled a breakthrough for the applicabillity of individual criminal responsibility
violations of humanitarian law in non-international armed conflicts.
war crimes
13 The Statute of the ICTR COvers, according to the nature of the conflict in Rwanda,
'violations of
committed in a non-international armed conflict. Art. 4 ICTR Statute therefore includes
Article 3 common to the Geneva Conventions and of Additional Protocol Il (Geneva Conventions
Additional Protocol II [1977). In its first judgment in the AkayesuCase, the ICTR adopted the view of
the Appeals Chamber in the Tadi Case and concluded that 'the violation of these nors entail, as
a matter of customary international law individual responsibility for the perpetrator." (Prosecutorv
Akayesu udgment] ICTR-96-4-T (2 September 1998] para. 616). Even at this early stage, it is
already evident that both courts considerably developed and substantiated the law of war crimes
by their far-reaching jurisprudence.
14 The creation of the two ad hoc tribunals also strengthened the idea of a permanent
international criminal court. Finally, the adoption of the ICC Statute in 1998 consolidated some of the
crucial and stillcontroversial conclusions achieved by the jurisprudence of the ICTY and the lCTR
(InternationalCriminal Court (ICC)). Particularly with regard to the contentious question of to what
extent the jurisdiction of the ICC will encompass war crimes committed in non-international armed
confiicts, the influence of the Tadi case cannot be overstated. This inter alia led to the adoption of
a substantive list of war crimes committed in non-international armed conflicts into Art. 8 lCC
Statute. Thus, the ICC Statute is, after the ICTR Statute, the second international instrument that
explicitly recognized the criminal liability of individuals for war crinmes committed in non
internationalarmed conflicts. Some of the acts included in Art. 8 ICCStatute have been criminally
sanctioned for the first time at the intenational level.

C. Serious Violations of International Humanitarian Law

15 Not any violation of international humanitarian law amounts to a war crime. In the Tadi
Jurisdiction Decision, the Appeals Chamber of the ICTY defined certain preconditions that must be
met to comply with the requirements of a war crime following to Art. 3 ICTY Statute:
 (i) the violation must constitute an infringement of a rule of international humanitarian law;
(ii) the rule must be customary in nature, or, if it belongs to treaty law, the required
conditions must be satisfied; (üi) the violation must be serious; (iv) and the violation of the
rule must give rise, under customary or conventional law, to the individual criminal
responsibility of the person violating the rule (/nterlocutory Appeal Decision para. 94).
16 Corresponding to the first two conditions, a war crime is based on a violation of a rule of
international humanitarian law that is either customary in nature or based on treaty law (Henckaerts
and Doswald-Beck [2005] 572 ). The necessary linkage clarifies that the law of war crimes as
substantive law is not independent but accessorial to the primary rules of international
humanitarian law (Werle and Jessberger [2014] 404). Consequenty, war crimes must be
interpreted in light of the rules of international law, and only if it is established that the act
constitutes an infringement of an applica ble norm of international humanitarian law can the act in
question amount to a war crime.

17 According to the third condition (ii), the violation of international humanitarian law must
additionally be serious in nature, which implies a 'breach of a rule protecting important values' and
that the breach 'must involve grave consequences for the victim' (Interlocutory Appeal Decision
para. 94). To illustrate this, the Appeals Chamber in its decision gives an example for a non-serious
violation: "the fact of a combatant simply appropriating a loaf of bread in an occupied village would
not amount to a "serious violation of international humanitarian law" although it may be regarded
as falling foul of the basic principle laid down in Art. 46 (1) Hague Regulations (and the
corresponding rule of customary international law) whereby "private property must be respected"
by any army occupying an enemy territory' (para. 94).
18 A qualific ation must be made to this approach insofar as acts can amount to war crimes by
breaching important values, even when they do not physically endanger persons or objects
directly, as Art. 85 (3) Additional Protocol Idemands for the grave breaches of the Additional
Protocol Idefined therein (see Dörmann Elements of War Crinmes [2003] 130 ). other words, not
all acts in order to amount to war crimes, necessarily include a general result requirement
(Henckaerts and Doswald-Beck [2005] 569). This means that, for instance, in case of the failure of
a weapon system, a crime-like unlawful attacks against persons or objects protected, as codified
in Art. 8 (2) (b) (i) ICC Statute-would also be committed even when the intended target was not hit.
This is suggested by the fact that the Preparatory Committee for the Rome Conference refused by
majority the general requirement of such a result (Dörmann War Crimes [2003] 381 ). Whether a
crime has to result in concrete harm or damage depends on the definition of the specific war crime
as can be seen from the wording of Art. 8 (2) (b) (vii)Rome Statute that explicity adds a result
requirement by asking for 'resulting in death or serious personal injury'.

D. Criminalization of Violations of International Humanitarian

Law
19 Notevery (serious) violation of international humanitarian law amounts to a war crime. Essential
to the identification of war crimes is that the violation of international humanitarian law (primary
rule) has to be criminalized by treaty or customary international law (secondary rule); only then
can individual criminal responsibility for the prohibited conduct be entailed and the relevant act be
classified as a war crime. To establish which violations of international humanitarian law entail
individual criminal responsibility, different possibilities can be taken into consideration.

20 First individual criminal responsibility can be derived from the grave breaches regime of the
Geneva Conventions of 1949. The special feature of these provisions lies in the fact that they
explicity entail individual criminalresponsibility for the violation of the listed rules. Therefore, the
determination whether the breach of those rules creates criminal responsibility for the individual is
Awithout th d for dditi
the case for other rules of international humanitarian law. Apart from the grave breaches regime,
the relevant international treaties on international humanitarian law do not entail individual criminal
responsibility and an international legaly binding list of criminalized breaches of international
humanitarian law does not exist.

21 Further international criminal tribunals entail criminaliz ation of prohibited acts under their
jurisdiction in various degrees. Art. 3 ICTY Statute, for instance, criminalizes all violations of the
'laws and customs of war' which applies to all primary rules falling under this scope (Ambos [2014]
161 ). By contrast, the list of 51 war crimes codified in Art. 8 (2) ICC Statute is exhaustive and
criminalizes only the prohibited acts listed therein. Consequently, violations of international
humanitarian law, which have been criminalized or termed as war crimes by the Statute of an
international criminal court, may be justifiably regarded as war crimes under the jurisdiction of the
relevant international court (Cassese (2013] 68).

22 Additionally individual criminal responsibility for war crimes can be derived from customary
international law providing criminal sanctions for serious violations of international humanitarian
law. According to Art 38 (1) (b) ICJ Statute ([adopted 26 June 1945, entered into force 24 October
1945] 145 BSP 832) the existence of customary international law requires a general State practice
(usus) and a belief of States that such practice depends on the nature of the rule, accepted as law
(opinio iuris). Filling the gap left by treaty law, customary international law today plays an important
role for the development of international humanitarian law. Reflecing the work of international
courts and international criminal tribunals in the assessment of State practice, the question of
whether or not a violation of international humanitarian law amounts to a war crime under
customary international law can only be answered by taking into account the different sources of
State practice that contributes to the existence of customary international law: (i) military manuals;
() national legislation;: (ii) judicial decisions (Interlocutory Appeal Decision para. 99); (iv) official
pronouncements of States (Case conceming Military and Paramilitary Activities in and against
Nicaragua [Nicaragua vUnited States of Ameica] [Merits] (1986] |CJ Rep 14, 100 para. 190): and
(v) the general criminal principles of criminal justice common to domestic legal systems (List and
others [Hostages Casel paras 634-35). In fact, numerous international criminal or military courts
have classified breaches of international humanitarian law as war crimes.

E. General Requirements
1, Nexus to an Armed Conflict
23 An essentialelement of any war crime is that the relevant conduct must be satisfactory
connected ('nexus') to an armed conflict (Prosecutor v Mucic et al [judgment] ICTY-IT-96-21-T [16
November 1998] para. 193; Prosecutor v Semanza ludgment] ICTR-97-20-A [20 May 2005] para.
369). Consequently, acts unconnected to an armed conflict are not considered to be war crimes.

(a) The Nexus Requirement

24 The nexus requirement entails the fundamental distinction between ordinary offences under
domestic law, such as murder, and the qualification of war crimes, such as the killing of a prisoner
of war (Cottier in Triffterer [2008] 293 ). At the same time the nexus requirement distinguishes war
crimes from other international crimes (Ambos (2014] 141).

25 Pursuant to the ICTY jurisprudence, the prohibited act needs neither be committed in the course
to the
of fighting nor inside the area of actual combat, as long as the 'crimes were closely related
hostilities' (/nterlocutory Appeal Decision para. 70; Prosecutorv Tadi [Opinion and Judgment]
functional
ICTY-94-1 (7 May 1997] para. 573). Rather, the crucial aspect is the existence of a
relationship between the prohibited conduct and the armed conflict (Interlocutory Appeal Decision
conflict need not
para. 69). Drawing on the ICTY Kunarac Appeals Chamber's judgment "the armed
to have been causal to the commission of the crime, but the existence of an armed conflict must, at
a minimum, have played a substantial part in the pepetrator's ability to commit it, the manner in
which it was committed or the purpose for which it was committed.' (Prosecutor v Kunarac
Judgment] ICTY-96-23 and ICTY-96-23/1-A [12 June 2002]: "Kunarac Appeal Judgment para. 58).
To be more explic it: the crime must be, at a minimum, significantly influenced by the armed conflict
and not just occasionally committed by taking advantage of the disorder caused by the conflict
(Ambos [2014] 141). Thus in a case-by-case study, it has to be clarified if the armed conflict
created the situation for the crime to be perpetrated. In order to prove the existence of the nexus
element, severalcriteria have been deemed relevant by internationalcriminal courts and tribunals:
the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the
fact that the victim is a member of the opposing party; the fact that the act may be said to
serve the ultimate goal of a military campaign; and the fact that the crime is committed as
part of or in the context of the perpetrator's official duties (Kunarac Appeal Judgment para.
59;Prosecutor v Boakoski and Tarulovski Judgment] ICTY-IT-04-82-T [10 July 2008],
para. 239; Prosecutor v Katanga et al [Decision on the Confirmation of Charges] ICC
01/04-01/07 [30 September 2008] para. 382).
26 These factors are not conclusive requirements for war crimnes, but they serve as an indication
that can help to identify the 'nexus'.
27 The nexus element is also included in the Elements of War Crimes of the ICC Statute assuming
that 'the conduct took place in the context of and was associated with an (international) armed
conflict'. With regard to the mentalrequirements of the nexus element, the ICC Elements of War
Crimes stipulates that the perpetrator must only be aware of the factual circumstances that
established the existence of an armed conflict (Introduction Art. 8 Elements of Crimes). In contrast,
there is no requirement to the perpetrator for a legal evaluation of these circumstances, Such as
the nature of the conflict as international or non-international, and no requirement for awareness by
the perpetrator of the facts that established the armed conflict (Ambos Verbrechenselemente
[2001] 407 ; La Haye 113).

(b) Arnmed Conflict

28 In international law, a positive definition of 'armed conflict does not exist. However, common
Art. 2 Geneva Conventions of 1949 entails that all four Conventions shall apply in cases of
declarations of war and partial or total occupation (Occupation, Belligerent). International
humanitarian law traditionally distinguishes between international and non-international armed
conflicts. This distinction is crucial because it decides which rules of international humanitarian law
apply after the outbreak of an armed conflict in a given situation. Art. 8 ICC Statute also
differentiates between war crimes committed in international and non-international armed conflict.
Following the ICTY jurisprudence, the existence of an 'armed conflict requires that there is a resort
to armed forces betweern States or non-State actors (/nterlocutory Appeal Decision para. 7O).
Whether a situation amounts to an international or a non-international armed conflict depends
decisively on the parties involved. While international armed conflicts (also called inter-State
conflicts) occur between two or more States, non-international armed conflicts occur between
States and organized (non-State) armed groups or between such groups within a State. Art. 1 (2)
Additional Protocol ll specifies for non-international armed conflicts that 'internal disturbances and
tensions'do not amount to an armed conflict. From this provision, it follows that in contrast to an
international armed conflict in which the intensity of the armed violence is irrelevant, the sufficient
intensity of the armed violence is a constitutive prerequisite for the existence of a non-international
armed conflict (Kleffner in Fleck [2013] 45, margin 202 ). The required intensity has to be
established on the basis of objective criteria laid down in Additional Protocol |l of the Geneva
Conventions. In addition to the intensity requirement, the parties of a non-international armed
conflict must in contrast to an international armed conflict, develop a certain degree of organization
to reach the threshold for the applicable rules of non-international armed conflict (organizational
requirement). While the rules applicable in international armed conflict are highly developed and
extensively codified by the four Geneva Conventions and its Additional Protocol I, the law of non
international armed conflict is more summary in nature and regulated by Art. 3 common to the
Geneva Conventions -V and Geneva Conventions Additional ProtocolI (1977).

(c) War Crimes in Non-international Armed Conflicts

29 Traditionally, war crimes could only be committed within the scope of an international armed
conflict. This can be illustrated by the International Committee of the Red Cross (ICRC) that stated in
1993: 'according to international humanitarian law as it stands today, the notion of war crimes is
limited to situations of international armed conflict (Preliminary Remarks of the ICRC, 25 March
1993). At that time, there were still differences of opinion about the question of whether violations of
Additional Protocol ll, regulating non-international armed conflicts, could also constitute war crimes.
It could be seen as a real innovation that, for the first time, the ICTR Statute in 1994 expressly
extended jurisdiction over individuals accused of violating common Art. 3 Geneva Conventions
regulating non-international armed conflict. Correspondingly, the Appeals Chamber decision of the
ICTY in the Tadi Case stated that 'war crimes' as provided in Art. 3 ICTY Statute also apply in
internal armed conflicts according to general international law (Interlocutory Appeal Decision paras
126-32). Today, it is widely recognized by firmly established case-law and national legislation that
serious violations of the laws and customs of war applicable in non-international armed conflicts
can also amount to war crimes, on condition that the respective conduct is criminalized (Cassese
[2013] 66). Confirmed by the wording of Art. 8 (2) (c) and (e) ICC Statute that incorporated a
notable number of serious violations of humanitarian law committed in non-intermational armed
conflicts into the list of war crimes under its jurisdiction, this development is also in line with the so
called assimilation thesis which is relevant to customary international law and reflects the
constanty changing structure of International Criminal Law with the effect that today war crimes
can be committed in international armed Conflicts as well as in non-international armed conflicts
(Ambos [2014] 117; Kress (2000] 105-09; Zimmermann in Triffterer [2008] 476 margin 237).
30 Apart from that, during times of war, it is not only war crimes that can constitute crimes against
international law. Rather, acts committed in the course of armed conflict may also constitute a
crime against humanity or genocide (Dinstein [2010] 266).

2. Perpetrators of War Crimes

31 Under contemporaneous international law, war crimes can only be committed by individuals
and not by legal persons. Neither organiz ations nor States can be held responsible for war crimes
before international criminal tribunals. There is, however, the possitbility that forms of collective
perpetration of war crimes may be punished under international criminal law (eg. joint criminal
enterprise) (see criminal responsibility, modes of). Numerous post-World War Il tribunals widely
recognized that not only combatants but also civilians can be held responsible for committing war
crimes (Prosecutor v Musema Judgment and Sentence] ICTR-96-13-A [27 January 2000]. paras
274 et seq; Prosecutor v Semanza Judgment and sentence] ICTR-97-20-T [15 May 2003], para.
358; Robinson, War Crimes in Cryer [2010] 286 ).
32 Pursuant to the ICTY Prosecution in the Delalic Case, 'it is not even necessary that the
perpetrator be part of the armed forces, or be entited to combatant status in terms of the Geneva
Conventions, to be capable of commiting war crimes during international armed conflict'
(Prosecutor v Delali et al (Celebii Case Appeal Judgment) IT-96-21-A [20 February 2001] para.
325). In contrast, the Trial Chamber in the Akayesu judgment as well as the Trial Chamber lIlin
Prosecutor v Kayishema and Rizindana of the ICTR initially seemed to assume that individuals who
do not belong to the armed forces could be held responsible for war crimes only when there is a
close relationship between them and the armed forces similarly to 'individuals who were legitimately
mandated and expected as public officials or agents or persons otherwise holding public authority
or de facto representing the Government to support or fulfillthe war efforts' (Prosecutor v Akayesu
Judgment] ICTR-96-4-T (2 September 1998], para. 640; Prosecutor v Kayishema and Ruzindana
Judgment] ICTR-95-1-T [21 May 1999] paras 173-76). Thereinafter, the Appeals Chamber in the
Akayesu Case set aside the judgment of the latter and declared "that international humanitarian law
Would be lessened and called into question if it were to be admitted that certain persons be
exonerated from individual criminal responsibility fora violation of common Art. 3 under the pretext
that they did not belong to a specific category.' (Prosecutor v Akayesu Judgment] ICTR-96-4-A [1
June 2001] para. 443). In view of the fact that the close connection between the act and the armed
conflict (nexus) remains indispensable, the additional restriction of the Trial Chamber rules is
inappropriate, or at least, unnecessary. While the nexus requirement fulfils a delimiting function in
regard to ordinary crimes, there are no indications that the group of persons which potentially can
commit war crimes should be limited to a specific status. Other authors believe that instead of
proving the link between the acts of the perpetrator and the armed conflict, it is necessary to prove
the link between the perpetrator and one of the belligerent parties of the armed conflict. According
to this, the individual civilian can only be held responsible for war crimes when he is suffic iently
linked to a party of the conflict (R Arnold 'The Liability of Civilians under International Humanitarian
Law's War Crimes Provisions' (2002) 5 YIHL344-59 ). Such a view over-stresses the understanding
of the above-mentioned nexus requirement. Moreover, the restriction of war crimes to the particular
status of individuals seems to be inconsistent with the wordings of the common Arts 49/50/129/146
of the four Geneva Conventions (1949) requiring the Member States to prosecute and punish all
'persons' who comit grave breaches (Ambos [2014] 146). Accordingly, the Elements of Crimes of
the ICC Statute do not provide an explicit note for the category of perpetrators as there was no
dissent during the negotiations at the Rome Conference that war crimes can be committed by both
members of armed forces and civilians (Dörmann, Elements of War Crimes (2003] 391).

3. Victims of War Crimes

33 Generally, members of armed forces as well as civilians may be potential victims of war crimes.
The crucial factor in determining conduct as a war crime is that the act harms persons who are
protected under international humanitarian law. Furthermore, war crimes may be committed against
other non-military targets, such as private property.

(a) Protected Persons under the Geneva Conventions

34 The Geneva Conventions consistentiy refer to 'protected persons' as a category of persons
that is particularly in need of protection against serious violations and who can therefore become
victims of grave breaches of the Conventions (see protected persons). According to the different
purposes of the Geneva Conventions applicable in international armed conflict, each convention
entails the protection status for different categories of persons. Geneva Convention Iprotects the
'wounded and sick on land' (Art. 13 Geneva Convention ), Geneva Convention Il the 'wounded,
sick and shipwrecked members of armed forces at sea' (Art. 12 Geneva Convention I) (Naval
Warfare), Convention IlIl the 'prisoners of war' (Art. 4 Geneva Convention II) and Convention V
'civilians and inhabitants of occupied territories' (Art 4 Geneva Convention V, Art. 48 ff. Additional
Protocol I) (Civilian Population in Armed Conflict; Occupation, Belligerent). These provisions are
supplemented by Additional Protocol Iof the Geneva Conventions (Art. 85 (2)-(4) Additional
Protocol I) that stipulates the protection of persons that took part in hostilities and fell into the hands
of the enemy (Arts 11, 45), the wounded, sick and shipwrecked of the adversary (Art 10), medical
and religious personnel (Ats 12, 15, 16), refugees and stateless persons (Art. 73) and persons who
are hors de combat (Art. 41). Civilians as well as the civilian population are protected persons in
both international and non-international armed conflict (Gasser/Dörmann in Fleck (2013] 234,
margin 502),Prosecutions for war crimes based on the violations of these Conventions require that
the victim belongs to one of the categories of 'protected persons' (Schabas [2010] 210 ).
(b) Victims in International Armed Conflicts
35 The rules of the Geneva Conventions regarding protected persons were classically conceived
for international armed conflicts between States or in the words of the Geneva Conventions,
'parties to the conflict. Therefore, a former approach in international armed conflict determining
whethera person belongs to one party to the conflict was traditionally linked to the nationality of
the person (Dinstein in Heintschel von Heinegg/Epping [2007] 149 ). Geneva Convention V relative
to the protection of civilian persons in time of war in Art 4 (1), explicitlyy states that 'Persons
protected are those (...) in the hands of a Party to the conflict or Occupying Power of which they
are not nationals'. According to this, during proceedings at the ICTY, it wNas argued that war crimes
can only be committed against individuals of a different nationality than that of the offender, with
the result that Bosnian Serbs could not be considered 'protected persons' under Geneva
Convention V because their prosecutors were also Bosnian nationals (Prosecutor v Tadi [Opinion
and Judgment] ICTY-94-1 [7 May 1997] paras 118, 595). The Appeals Chamber of the ICTY replied
that the nationality approach does not comply with 'modern inter-ethnic armed conflicts such as
that in the former Yugoslavia' and that 'new States are often created during the conflict and
ethnicity rather than nationality may become the grounds for allegiance .. to a party to the conflict
and, correspondingly, control by this party over persons in a given territory may be regarded as
the crucial test (Prosecutor v Tadi Judgment] ICTY-94-1 [15 Jly 1999] para. 166). The
requirement of nationality was correcty criticized by international criminal courts because it has
turned out to be impractical for victims who belong to an ethnic or religious group that differs from
that of the offender but who shares the same nationality (Ambos [2014] 149; Werle and Jessberger
[2014] 430). Therefore in determining protected status for persons involved in international armed
conflicts only an extensive interpretation of Art. 4 (1) GV ('of which they are not nationals') meets
the Conventions humanitarian purpose of protection (Ambos in Haase/Müller/Schneider [2001] 336
et seq) (Humanity, Principle of). The abandonment of the nationality approach by the ICC
(Prosecutor v Katanga et al [Decision on the Confirmation of Charges] ICC-01/04-01/07 [30
September 2008] para. 289) has led in the meanwhile, to suggestions to extend the scope of Art. 4
(1)Geneva Convention V to other criteria like the religious orientation of the participants when this
aspect can be a decisive one for the conflict (Ambos [2014] 149; Werle and Jessberger [2014]
430).

(c) Victims in Non-International Armed Conflicts

36 The nationality approach of international armed conflicts does not affect the application of the
concept of war crimes in internal armed conflicts. The law of war crimes, applicable in internal
armed conflicts, is aimed at members of armed forces or (non-State) organized armed groups
opposite to their counterparts who share the same nationality (La Haye 119).
37 Common Art 3 Geneva Conventions, applicable in armed conflicts of a non-international
character, provides protection for 'persons taking no active part in the hostilities including
members of armed forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other clause'. Art 4 of Additional Protocol Il contains
guarantees to 'all persons who do not take a direct part or have ceased to take part in hostilities'.
The question of what exactly constitutes direct participation in hostilities is still one of the most
controversial issues in international humanitarian law. In the absence of detailed regulation in
existing treaty law, the International Committee of the Red Cross (ICRC) explored the concept of
direct participation and published its findings in 'interpretive Guidance' (Melzer ). Regardless of the
controversy, the decisive element for concluding whether a person is a potential victim of war
crimes is that he did not participate directy in hostilities at the time of the targeting (Prosecutor v
Tadi [Opinion and Judgment] ICTY-94-1 [7 May 1997] para. 615). Contrarily, they may be targeted
as long as they participate in hostilities (Gasser in Fleck [2013] para. 517).

F. War Crimes under the ICC Statute

38 Art. 8 ICC Statute, with an enumeration of 51 war crimes, is currenty the most comprehensive
provision in international treaty law requlating the law of war crimes. The codification takes into
account recent developments by customary international law as well as case law from previous
internaional criminal tribunals such as the ICTY and the ICTR. This is reflected in the fact that the
Rome Statute for the first time provides an explicit codification of war crimes committed in non
international armed conficts which has so far led to a considerable extension of the noton of war
crimes (Anmbos internationales Strafrecht [2011]275; Cassese [2013] 80). Beyond that, the
recognition of new war crimes was codified in the Rome Statute, such as the recruitment of child
soldiers (Arts 8 (2)(b) (xxvi), 8 (2) (e) (vi) ICC Statute) and attacks on peacekeepers (Art 8 (2) (e)
(i) ICC Statute). Further, the statute marks a great advance in respect to the codification of gender
based crimes and sexually violent crimes, such as 'rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterlization, or any other form of sexual violence also constituting a
grave breach of the Geneva Conventions' (Art. 8 (2) (b) (xxi).

1, Structure
39 The structure of Art. 8 ICC Statute classifies war crimes into four main categories: two of them
are applicable to international armed conflict and two to non-international armed conflict. War
crimes applicable to international armed confict are regulated in Art 8 (2) (a) CC Statute, which
criminalizes 'grave breaches of the Geneva Conventions of 12 August 1949 and in Art 8 (2) (b)
ICC Statute criminaliz ing 'other serious violations of the laws and customs applicable in international
armed conflict. War crimes applicable to non-international armed conflict are regulated in Art 8 (2)
(c) ICC Statute, which criminalizes 'serious violations of Article 3 common to the four Geneva
Conventions of 12 August 1949",and in Art.8 (2) (e) ICC Statute criminaliz ing 'other serious
violations of the laws and customs applicable in armed conflicts not of an intermational character
primarily based on the Hague Regulations of 1907 and Additional Protocol |lto the Geneva
Conventions of 1977. Thus, the Rome Statute defines war crimes by reference to the nature of
conflict as well as by reference to their humanitarían law source. This approach continues, despite
the increasing convergence of the laws applicable to international and non-international armed
conflict (assimilation thesis) to follow the traditional 'two-box approach' differentiating between
crimes of both types of confict. By this method, the drafters have failed to abolish the antiquated
separation of the two conflict regimes and neglected to create a uniform body of crimes applicable
to all conficts (Cassese [2013] 82; Ambos [2014] 120). In this context it is important to consider
the specific thresholds and elements that apply to the respective nature of the armed conflict
(international or non-international).

2. Context Element
40 In contrast to customary international law as well as the statutes of the ICTY and the ICTR, the
ICC provides a particular contextual element for war crimes. Art.8 (1) ICC Statute determines that
the ICC 'shall have jurisdiction in respect of war crimes in particular when committed as part of a
plan or policy or as part of a large-scale commission of such crimes.' Notwithstanding, the
expression 'in particular' reveals that 'the statutory requirement of either large-scale commission or
part of a policy is not absolute' (Situation in the Democratic Republic of the Congo, ICC-01/04,
Judgment on the Prosecutor's Appeal Against the Decision of Pre-Trial Chamber I, 13 July 2006,
para. 70) and can neither be seen as an element of the crime nor as a strict requirement (Ambos
Internat. Strafrecht [2011] 5 7, margin 233: Cottier in Triffterer, Art. 8 margin 9). Given the fact that
ajurisdictional threshold for war crimes has already been addressed in the provision on
complementarity in Art 17 (1) (a) ICC Statute, the limiing character of Art. 8 (1) has proven to be
more important for the Office of the Prosecutor (Schabas [2010] 201). The provision rather seves
as a practical guideline by referring criteria the Prosecutor should take into account when
determining whether there is a basis to proceed with an investigation or not (Cottier in Trifterer, Art
8 margin 9). With regard to the limited resources of the ICC, the provision also serves to prevent
the Court from being overburdened with isolated cases (Wolf 28). As a consequence, an individual
and isolated act, such as murder committed during armed conflict, can potentially amount to a war
crime.

3. Threshold
41 It is notable that Art. 8 ICC Statute includes two different thresholds for the existence of a non
international armed conflict. While Art 8 (2) (d) ICC Statute refers to the 'classical' threshold of
common Art. 3 Geneva Conventions, Art. 8 (2) () ICC Statute 'applies to armed conflicts that take
place in the territory of a State when there is protracted armed conflict between governmental
authorities and organized armed groups or between such groups.' This compromise seems to be
due to the fact that a majority of delegations at the Romne Conference were against the adoption of
the high and restrictive threshold contained in Art 1 (2) Additional Protocoll of the Geneva
Conventions. Instead, the wording included in Art 8 (2) (f) was obviously influenced by the
jurisdiction decision in the Tadi case (see Interlocutory Appeal Decision para. 70). This leads to
the situation that under current international humanitarian law three different types of non
international armed conflicts are distinguished with an increasing threshold: the conflict according
to common Art 3, as applied by Art.8 (2) (d) ICC Statute (lowest threshold), the conflict according
to Art. 8 (2) () ICCStatute (medium threshold), and the type of conflict according to Art.1 (2) AP |I
(highest threshold) (Cottier in Triffterer 291; Ambos [2014] 133-34).

G. Classifications of War Crimes

42 In international legal doctrine, a commonly accepted classification of war crimes does not exist.
War crimes can be classified in accordance to the two traditional types of conflict as it arises in the
structure of Art. 8 ICC Statute: war crimes committed in international armed conflicts and war crimes
committed in non-international armed conflicts. With regard to the already mentioned assimilation
thesis, such a distinction today appears increasingly antiquated. The same applies fora
classification of war crimes according to their legal source, such as the 1907 Hague Resolutions,
Additional Protocol I, and other treaties concerning international humanitarian law. For the sake of
comprehensibility and clarity, it seems appropriate to classify the different types of war crimes into
four main categories according to the content of the criminalized conduct These are: (1) crimes in
relation to protected persons; (2) crimes in relation to protected goods, such as private property:
(3) crimes in relation to unlawful methods of warfare:; and (4) crimes in relation to unlawful means of
warfare. the following, this structure, which is similar to that of the German International Crimes
Code (VStGB), will be applied.

1, Crimes in Relation to Protected Persons

43 Under the law of international armed conflict including the four Geneva Conventions and its
Additional Protocol I, any willful direct attack against 'protected persons' (ie wounded and sick,
shipwrecked persons, prisoners of war, civilians and inhabitants of occupied territories), not
justified by military necessity (proportionality), amounts to a war crime. Offences against protected
persons thereby include wilful killing; the cause of great suffering or serious injury to body or
health; torture; cruel inhuman or degrading treatment including biological, medical or scientific
experiments, mutilation, and taking hostages. These acts constitute war crimes under the ICC
Statute (see Art. 8 (2) (a) (i),(i), (i), (viii), (b) (x).
44 The protection of civilians from violence and direct effects of military operations in armed
conflict is one of the cornerstones of international humanitarian law while attacks may only be
directed against combatants. In Art. 50 Additional Protocol I, civilians are defined as 'any person
who does not belong to one of the categories of persons referred to in Art. 4 (A) (1), (2), (3) and (6)
of Geneva Convention ll and in Art 43 of Additional Protocol l. In other words, a civilian is a person
who is not a member of the armed forces or of a levée en masse. Art. 43 Additional Protocol I,
applicable in international armed conflicts, provides all members of the amed forces of a party the
legal status of a combatant. As such, only combatants have the right to take a direct part in
hostilities and therefore to kll, harm, or destroy (so-called 'combatant's privilege') as long as their
conduct is in accordance with the limitations of international humanitarian law. At the same time,
combatants are legitimate targets of attacks by the armed forces of the adversary. In contrast,
civilians have no right take a direct part in hostilities and shall, under all circumstances, be
protected from military operations. Therefore, direct attacks against the civilian population or
against individual civilians are, as long as they do not take a direct part in hostilities, considered a
grave breach by Art 85 (3) (a) Additional Protocol I. The Rome Statute in Art. 8 (2) (b) (i)
accordingly classifies 'intentionally directing attacks against the civilian population as such or
against civilians not taking direct part in hostilities' as war crimes.
45 The use of civilians as a shield to render certain points or areas immune from military
operations is prohibited by Art. 28 Geneva Convention V and Art 51 (7) Additional Protocol I. Such
conduct is defined as a war crime under At. 8 (2) (b) (xxii) lCC Statute.

(a) Principle of Distinction

46 On its basis, the Member States must at all times distinguish between the civilian population
(Civilian Population in Armed Conflict) and combatants as well as between civilian objects and
military objectives. Consequentty, indiscriminate attacks, meaning attacks 'of a nature to strike
military objectives and civilians or civilian objects without distinction' (Art. 51 (4) Additional Protocol
), constitute war crimes in international law. This follows from Art. 85 (3) (b) Additional Protocol I,
classifying an indiscriminate attack directed the knowledge that such an attack will cause
excessive loss of life injury to civilians or damage to civilian objects (as defined in Art. 57 (2) (a) (ii)
Additional Protocol I) as a grave breach and therefore as a war crime (Art. 85 (5) Additional Protocol
). Violations of the principle of distinction are insufficiently regulated under the Rome Statute: While
intentional direct atacks against the civilian population as such are war crimes under Art. 8 (2) (b)
(i), the launching of an indiscriminate attack accidently affecting the civilian population or civilian
objects unfortunately was not included in the list.

(b) Principle of Proportionality

47 In armed conflicts, the killing or wounding of protected persons, such as civilians, or the
destruction of civilian objects is not forbidden under all circumstances. As already mentioned,
civilians lose their protection status when they take a direct part in hostilities, with the consequence
that during this time they may be a legitimate target of attack. In addition, the incidental killing or
wounding of civilians or the destruction of civilian objects, occurring as a consequence of a
legitimate military attack, is lawful when such casualties are unavoidable and proportionate to the
military advantage of the attack. The principle of proportionality requires that the incidental
casualties among civilians or civilian objects (so-called 'collateral damage') are in balance with and
not 'excessive' to the anticipated concrete and direct military advantage. Accordingly, a military
attack is prohibited 'which may be expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation
to the concrete and direct military advantage anticipated' (Art. 51 (5) (b) Additional Protocol; Art.
57 (2) Additional Protocol ). The principle of proportionality is part of customary international law
applicable in both internationaland non-international armed conflict (Henckaerts and Doswald-Beck
[2005] 46). A violation of the principle is implic ity branded as awar crime by Art. 8 (2) (b)(iv ICC
Statute criminalizing the intentional launching of an attack 'in the knowledge that such attack will
cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long
term and severe damage to the natural environment which would be clearly excessive in relation to
the concrete and direct overall military advantage anticipated'.
2. Crimes in Relation to Protected Objects
48 In international armed conflict the principle of distinction, as codified in Art 48 Additional
Protocol I, also applies for the distinction between military and civilian objects. Therefore, States
must at all times distinguish between civilian and military objects and are prohibited from directing
attacks against civilian objects. These are defined by a negative definition in Art. 52 (1) Additional
Protocollas all objects which are not military objectives. According to Art 52 (2) Additional Protocol
Imilitary objectives are 'limited to those objects which by their nature, location, purpose or use
make an effective contribution to military action and whose total or partial destruction, capture or
neutralization in the circumstances ruling at the time, offers a definite military advantage'.
Consequently, for classifying a military object, at least two cumulative requirements have to be
met: (1) the object must effectively contribute to military action; and (2) the capture, destruction or
neutralization of the object must offera definitive military advantage. If one of the prerequisites has
not been met, the object may not be legitimately targeted as military object.
49 Invariably, the protection status of civilian objects can be maintained only as long as they do
not turn into military objects. This would be the case, for instance, if a school is misused as a
stockpile of weapons by adversary combatants. In this context, Art 52 (3) Additional Protocol I
provides that in case of doubt whether an object that is normally dedicated to civilian purposes is
being used to make an effective contribution to military action, it shall be presumed not to be so
used.

50 Under the ICC Statute 'intentionally directing attacks against civilian objects' (Art. 8 (2) (b) (i)
ICC Statute) amounts to war crimes in international armed conflict. Additionally, the ICC Statute goes
beyond the text of the Additional Protocol I and lists various civilian objects as protected: Art. 8 (2)
(b) (ix) and (e) (iv) ICC Statute entails protection status in international and non-international armed
conflict for 'buildings dedicated to religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded are collected'. Art 8 (2) (b) (v) ICC
Statute further protects in international armed confliCts 'towns, villages, dwellings or buildings which
are undefended'.

51 Rules protecting personalproperty can be found in the Hague Regulations of 1907. According
to their Art. 46, the personal property of civilians shall be protected. This obligation is part of
customary law (Henckaerts and Doswald-Beck [2005] 25). Art. 147 Geneva Convention V
stipulates that unlawful and wanton destruction or appropriation of property on a large scale, which
cannot be justified by military necessity, is a grave breach. Accordingly, Art. 8 (2) (a) (iv) ICC
Statute classifies the 'extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly' as a war crime. A similar wording is used by Art.
8(2) (3)) (xii) for non-international armed conflicts that defines the destruction of the property of an
adversary as a war crime 'unless such destruction be imperatively demanded by the necessities of
the conflict. Art. 8 (2)(b) (xvi) ICC Statute directy sanctions the pillaging of towns and places in
international armed conflict The same is regulated for non-international armed conflicts in Art. 8 (2)
(e) (v) ICCStatute. The expropriation of property is further criminalized by Art. 8 (2) (a) (iv) ICC
Statute.

3. Crimes in Relation to Unlawful Methods of Warfare

52 Unlawful warfare in general, is the use of weapons or methods of warfare which are not
consistent with the basic rules of international humanitarian law determining how hostilities have to
be conducted (Warfare, Methods and Means; Humanitarian Law, International).

53 According to Art 35 (1) Additional Protocol I, 'in any armed conflict, the right of the Parties to
the conflict to choose methods and means of warfare is not unlimited.' This customary rule was
confirmed by the ICJ in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons
(Nuclear Weapons Advisory Opinion) when it pronounced that 'methods and means of warfare,
which would preclude any distinction between civilian and military targets, or which would result in
unnecessary suffering to combatants, are prohibited' (Legality of the Threat or Use of Nuclear
Weapons (Advisory Opinion) [1996] IC]Rep 226, para. 95). The reasoning behind this rule is the
guiding principle of military necessity which allows only the use of those methods and means of
warfare which are in an adequate proportion to the military purposes of the attack ('limited
warfare')(Oeter in Fleck [2013] 116). This principle implies that the belligerent parties in an armed
conflict Must respect both, the principle of distinction between civilians and combatants as well as
between military and civilian objects (Art. 48 Additional Protocol I) and the prohibition of causing
superfluous injury or unnecessary suffering (Art 35 (2) Additional Protocol ). Accordingly, Art. 8 (2)
(b) (), (ii), (ix) and (xxiv), as well as Art 8 (2) (e) (i), (ii) and (iv) ICC Statute criminalize the direct
attacks on civilians and civilian objects.

54 As one of the basic princ iples of humanitarian rules on warfare, the principle of proportionality
(requiring the incidental casualties are not excessive in relation to the military advantage) has to
be respected by any military operation. Art. 8 (2) (b) (iv) ICC Statute therefore prohibits
disproportionate incidental damnages.

55 The declaration that 'no quarter will be given' was already prohibited and defined as a war
crime in the Report of the Commission on Responsibility in the aftermath of World War Il. This
unlawful method of warfare today is codified as a war crime for both international and non
international armed conflicts by the ICC Statute (Art. 8 (2) (b) (xi) and Art. 8 (2) (e) (×) ICC Statute).
56 As a method of warfare affecting people not involved in hostilities the wilful starvation of
civilians as well as the use of civilians as a human shield constitutes war crimes by Art 8 (2)) (b)
(xxv) and Art. 8 (2) (b) (xxiii) ICC Statute.

57 Further, methods of warfare which cause excessive damage to the environment are taken into
consideration by Art. 35 (3) of Additional Protocol l, which states that 'methods or means of warfare
which are intended, or may be expected to cause, widespread, long-term and severe damage to
the natural environment' are prohibited. The violation of this customary rule (Henckaerts and
Doswald-Beck [2005] 152) is defined as a war crime by Art. 8 (2) (b) (iv) ICC Statute.

4. Crimes in Relation to Unlawful Means of Warfare

58 Means of warfare encompasses weapons, weapon systems, and platforms applied for the
purposes of attack. Art. 35 (2) Additional Protocol Iprohibits the use of weapons, projectiles, and
materials of war that are likely to cause 'superfluous injury' or 'unnecessary sufferings'. Art. 51 (4)
(b)-(c) Additional Protocol Ifurther prohibits indiscriminate attacks including those'which employ a
method or means of comtbat which cannot be directed at a specific military objective; or attacks
which employ a method or means of combat the effects of which cannot be limited as required by
the Protocol and which consequenty are of a nature to strike military objectives and civilians or
civilian objects without distinction'. The criterion of 'superfluous injury' in Art. 35 (2) implicitly refers
to the principle of proportionality: the physical injury of civilians is limited to the employments of
weapons which are absolutely necessary to attain the intended military objective. Art. 51 (4)
concerns the principle of distinction in so far as no weapon should be used where its destructive
power may result in indiscriminate effects (making a distinction between combatants and civilians
impossible). According to these general principles of international humanitarian law, which form
part of customary international law, the use of special types of weapons, such as weapons of mass
destruction, and nuclear, biologic al, and chemical weapons, whose destructive nature makes them
intrinsically unable to avoid unnecessary injury, is wholly or partially restricted by multilateral
treaties (weapons, prohibited).
59 With regard to the structure of war crimes presented above, it has to be established which
weapons are prohibited and criminalized under customary international law to that extent that their
use entails individual criminal responsibility and consequently can be classified as war crimes in
international law. Despite the indiscriminate nature of nuclear weapons, the existence of a
comprehensive ban on their employment under customary law is stll controversial (Nuclear
Weapons and Warfare). In contrast, the use of chemical weapons is, according to the 1993 Paris
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction('CWC'), entirely prohibited (Chemical Weapons and Warfare).
Due to the high ratification rate of the CWC (190 States as of September 2014), the prohibition of
the use of chemical weapons inter alia forms part of customary international law (Henckaerts and
Doswald-Beck [2005] 259; Dinstein in Bardonnet [1995] 151 ). The fact that the signatory States of
the CWC are compelled to provide penal sanctions for the non-observance of the convention by
their Art. 7 (1) (a) points in favor of recogniz ing individual criminal liability for the use of chemical
weapons in international law (Werle and Jessberger [2014] 518). Accordingly, in this view the use
of chemic al weapons in armed conflict amounts to war crime.
60 During armed conflict the use of biological weapons is prohibited by several international
treaties, foremost by the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous or other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol)
(Biological Weapons and Warfare) and the Biological Weapons Convention of 1972. Therefore
under customary law the use of any bacteriological weapon is absolutely prohibited (Henckaerts
and Doswald-Beck [2005] 256; Oeter Fleck [2013]p. 165, margin 440). The same concerns the
criminalization of their use under customary law, with the result that the employment of such
weapons amounts to war crimes.

61 During the drafting process of the ICC Statute the inclusion of biological, chemical, and nuclear
weapons as war crimes under the ICC Jurisdiction was highly controversial. The finally achieved
compromise only codified the employment of poison or poisoned weapons (Art. 8 (2) (b) (xvi) ICC
Statute), poison gas (Art. 8 (2)(b) (xvii) ICC Statute) as wellas certain types of ammunition, such
as dumdum bullets (Art. 8 (2) (b) (xix) ICC Statute), as war crimes in international amed conflicts.
At the first Review Conference in Kampala the criminalization of those weapons was extended to
non-international armed conflicts (Coalition Report [2010] 21 ). Although the ICC Statute contains no
explicit prohibition of biological and chemical weapons and the drafting history of the Statute
concerning the employment of such weapons confirms this finding, some authors hold the view that
Art. 8 (2) (b) (xvii) ICC Statute ('employing poison or poisoned weapons') also covers at least
certain biological and chemical weapons as 'poison' in international armed conflicts (Cottier in
Triffterer 413; Detter, Law of War [2000] 252; Doermann [2003] 346).
62 Instead of a comprehensive list of prohibited weapons, the drafters of the Statute designed Art.
8 (2) (b)) (Xx) ICC Statute to serve as a 'catch-all' clause which defines as a war crime the
employment of 'weapons, projectiles and material and methods of warfare which are of a nature to
cause superfluous injury or unnecessary suffering or which are inherenty indiscriminate in
violation of the international law of amed confict. Indeed, the applicability of this norm additionally
requires that such means of warfare shall initially be included in 'comprehensive prohibition'
concluded by a future State Conference, which so far is still lacking. As an expression of the
insufficient prohibition of weapons under the ICC Statute, Art 8 (2) (b) (xx) explicitly recalls the
already existing possibility of including further weapons under the ICC jurisdiction by an annex at a
future Review Conference.

H. Assessment
63 After the breakthrough of the International Military Tribunal of Nuremberg, the jurisprudence of
the ICTY and the ICTR Substantially developed the international criminal system by the creation of
rules and regulations concerning the law of war crimes, particularly the recognition of customary
war crimes committed in non-international armed conflicts, The adoption of Article 8 into the Rome
Statute made important contributions to codify the essential elements of the concept of war crime.
64 While there is no doubt that the evolution of the law of war crimes has made a great leap
forward in recent years, the huge achievements of the ICC Statute should not be taken to conclude
that the codification of war crimes therein equates to a satisfactory level of coverage. The ensuing
risk of the specification of legal norms is usually their restrictive scope of application (Pictet,
Commentary [1958] 39). Such a risk also stems from the fact that in contrast to the Statutes of the
ICTY and the ICTR, the catalogue of war crimes in Art 8 ICC Statute is exhaustive which follows from
the wording 'namely' of the introductory notes of each category of war crimes in the Statute.
Although an exhaustive regulation appears commendable with regard to the principle of legality
(Nulla poena nullum crimen sine lege), such a stringent approach sets narrow limits for further
developments of the law by judicial decisions and makes it difficult in view of the high hurdles
existing for subsequent amendments of the Statute (two-thirds majority required), to respond to new
developments in customary international law (Ambos [2014]120).
65 In order to consolidate the positive developments of the law of war crimes, member States
should use their review possibilities for further improvements of the Statute and extend the list of
war crimes by issues that were not taken sufficiently into consideration so far. this context, the
inclusion of a 'comprehensive prohibition' of specific weapons (as explicitly announced by Art. 8
(2) (b)(xx) ICC Statute), such as nuclear, biological, and chemical weapons within the ambit of war
crimes in Art. 8 ICC Statute is of great significance. Another important step for narrowing the
impunity gap would be the explicit prohibition of launching an indiscriminate atack affecting the
civilian population or civilian objects. Unfortunately, during negotiations at the 2010 Kampala
Review Conference those issues haven't played adecisive role and were not considered
satisfactorily.
66 With aview to the harmonization of international humanitarian law the existing gaps of the ICC
Statute relating to war crimes committed in non-international armed conflicts should be bridged as
soon as possible. Particularly in cases where customary international law or international treaty law
provides a broader scope of war crimes than codified in Art. 8, this broader scope should not be
defeated by the lCC Statute. This is the case, for example with the prohibition of 'starvation of
civilians as a method of combat' under Art. 14 (2) APl that constitutes a war crime under
customary international law (Kress [2000] 134) but unfortunately has no equivalent in Art. 8 (2) (e)
ICC Statute.

67 With respect to the enforcement of war crimes and their ongoing legal evolution it is
indispensable that Member States on national level implement the provisions of the ICC Statute as a
minimum standard within their national legislation. This demand seems far from being reached
taking into account a report which was made during the Kampala Review Conference pointing out
that only 44 of the former 111 Member States enacted adequate implementing legislation, and in
some cases they had enacted legislation that was flawed (Coalition Report [2010] 36-37). The
deterrent effect of international criminal justice is largely based on the fact that all Member States
secure strong national laws and are subject to the same standard.