Introduction to International Criminal Law :

Definition and Scope:

International Criminal Law is the set of rules and principles designed to address the most serious
offenses that are of international concern. These offenses are so grave that they are considered
crimes against the international community as a whole. The primary goal of ICL is to hold
individuals criminally responsible for these crimes, in contrast to traditional domestic law, which
generally focuses on the state as a subject of legal liability.

Key Crimes under ICL:

1. Genocide: Acts committed with intent to destroy, in whole or in part, a national, ethnical,
racial, or religious group. This includes killing members of the group, causing serious
harm, or imposing conditions meant to bring about its physical destruction.
2. Crimes Against Humanity: Atrocities committed as part of a widespread or systematic
attack directed against any civilian population. This includes acts such as murder,
enslavement, torture, and rape.
3. War Crimes: Serious violations of the laws and customs of war, including the killing of
prisoners of war, targeting civilians, and the destruction of property not justified by
military necessity.
4. Crime of Aggression: The planning, preparation, initiation, or execution of an act of
aggression, which is the use of armed force by one state against the sovereignty,
territorial integrity, or political independence of another state.

Early History:

International Criminal Law did not develop overnight. Early international treaties, such as the
Hague Conventions of 1899 and 1907, outlined the rules for warfare and the treatment of
prisoners. However, these treaties were insufficient to address the need for individual
accountability for war crimes and other atrocities.

World War II and the Nuremberg Trials:

The atrocities committed during World War II led to a significant shift in international law. In
1945, the Allied powers established the Nuremberg Trials to prosecute prominent leaders of Nazi
Germany for crimes including genocide, war crimes, and crimes against humanity. The
Nuremberg Trials marked a turning point in international criminal law, as individuals were held
personally responsible for crimes committed under the banner of a state.

Post-World War II Developments:

In the aftermath of World War II, the international community sought to prevent similar
atrocities from occurring in the future. The Geneva Conventions of 1949 laid down the rules for
the protection of war victims and civilians in times of armed conflict. Additionally, the
Universal Declaration of Human Rights (1948) and subsequent international human rights
treaties further shaped the framework for individual accountability under ICL.
Treaty of Versailles :

The Peace Treaty

At the close of World War I, the Paris Peace Conference created several treaties, the most
important of which was the Treaty of Versailles. The deal of Versailles was the essential
settlement created by the Paris Harmony Gathering toward the finish of The Second Great
War. It was endorsed on June 28, 1919, by the Partnered and related powers and by Germany
in the Lobby of Mirrors in the Royal Residence of Versailles and came full circle on January
10, 1920. The deal gave a few German regions to adjoining nations and set other German
domains under global watch. Likewise, Germany was deprived of its provinces abroad, its
tactical abilities were seriously limited, and it was required to pay conflict compensations to
the Unified countries. The settlement likewise made the Class of Countries.

History of Treaty Of Versailles

World War 1 had broken out in July 1914 upon the death of Archduke Ferdinand, the successor
to the high position of the Austro-Hungarian Domain. The subsequent struggle had pitted
England, France, and Russia alongside their settlements, against the Austro-Hungarian
Domain, Ottoman Realm, and the German Domain.
The conflict had been battled into an impasse by 1918, however, the Focal Powers (the term
with which the Ottomans, Austro-Hungarian, and German groups were known) were arranging
a hostile with the section of the US into the conflict against them. Trying to quickly put the
contention to an end before American soldiers arrived in Europe, Germany stepped up to the
plate. It started a hostile that would end the conflict in the Focal Powers' favor. The offensive
failed. Instead, the Allies won convincingly on the battlefield, resulting in a surrender-like
armistice in November 1918.

1. World War I (1914-1918)

The pact marked the culmination of attempts to terminate one of history's worst battles. The
conflict involved numerous countries and resulted in millions of deaths and widespread
destruction throughout Europe.

2. Paris Peace Conference(1919)

The Paris Peace Conference (1919) was held in January 1919 to negotiate peace arrangements
between the Allies and the vanquished Central Powers. Representatives from approximately 32
different countries attended the conference.

3. Fourteen Points
Before the end of World War I, US President Woodrow Wilson laid out his Fourteen Points, a
set of ideas aimed at maintaining peace and stability in the postwar world. Wilson advocated
open diplomacy, self-determination for oppressed nationalities, and the formation of a League
of Nations.

4. Role of Allied Powers

The primary Allied Powers in the negotiations were the United States, the United Kingdom,
France, and Italy. Each has its aims and interests, which occasionally clashed throughout the
negotiations.
5. Versailles
The treaty was signed in Versailles, which was a significant choice. Versailles was a palace
near Paris with historical significance in France. The signing ceremony took place in the Hall
of Mirrors, which had previously hosted key events in French history.

6. German Representation
German Representation: Germany, the war's defeated aggressor, was not initially invited to
participate in the negotiations. German representatives were eventually allowed to participate,
but they were excluded from negotiations about the treaty's contents.

7. Terms of the Treaty

The Treaty of Versailles imposed severe sanctions on Germany. It covered territory losses,
demilitarization, and reparations payments. The pact also established the League of Nations, a
forerunner to the United Nations, to encourage the international cooperation and prevent
intending the to encourage future hostilities.

8. Controversy and Legacy

The Treaty of Versailles was contentious from the beginning. Many Germans saw it as overly
severe and unjust. Some historians believe that the treaty contributed to economic hardship and
political instability in Germany, ultimately culminating in the signing Adolf Hitler's ascent and
the onset of World War II.
Overall, the Treaty of Versailles was a watershed point in twentieth-century history, changing
the geopolitical landscape of Europe and laying the groundwork for future battles. The Signing
of The Treaty of Versailles
On January 18, 1919, the Paris Peace Conference drafted the Treaty of Versailles. This date
was significant because it marked the anniversary of Wilhelm I's coronation as Emperor of
Germany in the halls of Versailles at the end of the Franco-Prussian War in 1871. The war also
resulted in the loss of Alsace and Lorraine to Germany.
The peace talks were led by Woodrow Wilson of the United States, Lloyd George of Britain,
Georges Clemenceau of France, and Vittorio Orlando of Italy. They were known as the "Big
Four" and Italy's role was limited throughout. Germany and the Central Powers' vanquished
parties were not represented. Neither was Russia, which had signed a secret peace pact with
Germany while being a member of the Allied forces.
The 'Big Four' were not on the same page about the peace pact. Each had its to own goals that
were in contradiction with those of the other. The French intended to prevent future invasions
from Germany, therefore they aimed to economically cripple it by paying large reparations.
The British wished to reconstruct Germany in order to become a powerful commercial partner.
The Italians intended to enhance their power and influence in postwar Europe so that they
could be on an equal footing with other European powers. The Americans opposed any
territorial changes and wanted to establish a world order consistent with the Fourteen Points.
Other European leaders thought the Fourteen Points were too unrealistic to transfer into policy.
Germany's army and navy would be limited in size, and it was not permitted to keep an air
force. It called for Kaiser Wilhelm II, the ruler of Germany, to stand trial for war crimes.
Above all, it included a "war guilt clause" that held Germany entirely responsible for launching
the war and forced it to pay reparations for Allied war losses.
Key Provisions of The Treaty of Versailles
 War Guilt Clause: Article 231, sometimes known as the War Guilt Clause, assigned full
guilt for the war to Germany and its allies, effectively making them responsible for all
losses and damage incurred during the struggle.
 Territorial Losses: Germany suffered considerable territorial losses as a result of the
treaty. Alsace-Lorraine was returned to France, while other provinces were handed over to
Belgium, Denmark, and Poland. Germany also lost all its overseas colonies.
 Disarmament: The treaty severely limited the strength and capability of the German
military. The German army was limited to 100,000 soldiers, and the country was prohibited
from owning an air force, submarines, or tanks.
 Reparations: Germany was compelled to pay reparations to the Allies as compensation for
the damage done during the war. The actual amount was not indicated in the treaty, but it
was ultimately estimated to be 132 billion gold marks, imposing a significant economic
strain on Germany.
 League of Nations: The Treaty of Versailles also established the League of Nations, an
international institution dedicated to fostering peace and cooperation between nations.
Despite its efforts to provide collective security, the League was ultimately useless in
preventing another World War.
At the time of its signature and in the years that followed, the Treaty of Versailles was a hotly
debated document. The pact, which many Germans saw as unfair and degrading, served as the
center of nationalist fervor and animosity in Germany. A few historians contend that the strict
provisions of the pact aided in the ascent of Adolf Hitler and the start of World War II.

Impact of The Treaty of Versailles

The Treaty of Versailles had a profound impact on Europe and the world, shaping the political,
economic, and social landscape in significant ways.
1. Humiliation in Germany: The Treaty of Versailles imposed harsh sanctions against
Germany, including disarmament, compensation commitments, and territorial losses. Many
Germans felt humiliated as a result of the treaty, which they considered as unfair and
degrading. This unhappiness would eventually lead to the rise of Adolf Hitler and the
outbreak of World War II by fanning nationalist impulses, fostering disintegration, and
inciting political upheaval.
2. The Collapse of Europe.: The Treaty of Versailles imposed geographical reconfigurations,
particularly the redrawing of borders and the installation of new administrations,
exacerbated Europe's instability. The development of ethnic and national tensions led to
border disputes and clashes in Eastern Europe and the Balkans.
3. Economic Hardship in Germany: Germany faced severe financial difficulties as a result
of having to pay reparations after the Treaty of Versailles. Due to the inability to fulfill
these commitments, there was social unrest, economic hardship, and hyperinflation. Europe
was affected by Germany's economic instability, which also had a role in the global
economic crisis of the 1920s and 1930s.
4. Dismantling of Empires: Along with the German colonial empire, the Austro-Hungarian
and Ottoman empires were supported by the dissolution of the Treaty of Versailles.
Following them were new states that altered the political map of the Middle East and
Europe. But ethnic and national tensions were often left unaddressed by newly elected
administrations, leading to persistent wars in regions such as the Middle East and the
Balkans.
5. Establishment of the League of Nations: Promote peace and cooperation between
nations. The League was an attempt to stop future wars, but because the Soviet Union and
other strong nations refused to join and the League lacked the resources to enforce its
decisions, it was ultimately unable to achieve its goals.

Nuremberg and Tokyo Trials :

Following World War II, the victorious Allied governments established the first international
criminal tribunals to prosecute high-level political officials and military authorities for war
crimes and other wartime atrocities. The four major Allied powers—France, the Soviet Union,
the United Kingdom, and the United States—set up the International Military Tribunal (IMT) in
Nuremberg, Germany, to prosecute and punish “the major war criminals of the European Axis.”
The IMT presided over a combined trial of senior Nazi political and military leaders, as well as
several Nazi organizations. The lesser-known International Military Tribunal for the Far East
(IMTFE) was created in Tokyo, Japan, pursuant to a 1946 proclamation by U.S. Army General
Douglas MacArthur, Supreme Commander for the Allied Powers in occupied Japan. The IMTFE
presided over a series of trials of senior Japanese political and military leaders pursuant to its
authority “to try and punish Far Eastern war criminals.”
The origins, composition, and jurisdiction of the Nuremberg and Tokyo tribunals differed in
several important respects beyond their geographical differences and personalities. Plans to
prosecute German political and military leaders were announced in the 1942 St. James
Declaration. In the declaration, the United States joined Australia, Canada, China, India, New
Zealand, the Union of South Africa, the Soviet Union, and nine exiled governments of German-
occupied countries to condemn Germany’s “policy of aggression.” The Declaration stated that
these governments “placed among their principal war aims the punishment, through the channel
of organized justice, of those guilty of or responsible for these crimes, whether they have ordered
them, perpetrated them or participated in them.”
In August 1945, the four major Allied powers therefore signed the 1945 London Agreement,
which established the IMT. The following additional countries subsequently “adhered” to the
agreement to show their support: Australia, Belgium, Czechoslovakia, Denmark, Ethiopia,
Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama,
Paraguay, Poland, Uruguay, and Yugoslavia.
The Charter of the International Military Tribunal (or Nuremberg Charter) was annexed to the
1945 London Agreement and outlined the tribunal’s constitution, functions, and jurisdiction. The
Nuremberg tribunal consisted of one judge from each of the Allied powers, which each also
supplied a prosecution team. The Nuremberg Charter also provided that the IMT had the
authority to try and punish persons who “committed any of the following crimes:”

 (a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of
aggression, or a war in violation of international treaties, agreements or assurances, or
participation in a Common Plan or Conspiracy for the accomplishment of any of the
foregoing;
  (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall
include, but not be limited to, murder, ill-treatment or deportation to slave labor or for
any other purpose of civilian population of or in occupied territory, murder or ill-
treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public
or private property, wanton destruction of cities, towns, or villages, or devastation not
justified by military necessity;
 (c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation,
and other inhumane acts committed against any civilian population, before or during the
war, or persecutions on political, racial, or religious grounds in execution of or in
connection with any crime within the jurisdiction of the Tribunal, whether or not in
violation of domestic law of the country where perpetrated.
The IMT prosecutors indicted twenty-two senior German political and military leaders, including
Hermann Goering, Rudolph Hess, Joachim von Ribbentrop, Alfred Rosenberg, and Albert Speer.
Nazi leader Adolf Hitler was not indicted because he had committed suicide in April 1945, in the
final days before Germany’s surrender. Seven Nazi organizations also were indicted. The
prosecutors sought to have the tribunal declare that these organizations were “criminal
organizations” in order to facilitate the later prosecution of their members by other tribunals or
courts.
The Nuremberg Trial lasted from November 1945 to October 1946. The tribunal found nineteen
individual defendants guilty and sentenced them to punishments that ranged from death by
hanging to fifteen years’ imprisonment. Three defendants were found not guilty, one committed
suicide prior to trial, and one did not stand trial due to physical or mental illness. The Nuremberg
Tribunal also concluded that three of the seven indicted Nazi organizations were “criminal
organizations” under the terms of the Charter: the Leadership Corps of the Nazi party; the elite
“SS” unit, which carried out the forced transfer, enslavement, and extermination of millions of
persons in concentration camps; and the Nazi security police and the Nazi secret police,
commonly known as the ‘SD’ and ‘Gestapo,’ respectively, which had instituted slave labor
programs and deported Jews, political opponents, and other civilians to concentration camps.
Unlike the IMT, the IMTFE was not created by an international agreement, but it nonetheless
emerged from international agreements to try Japanese war criminals. In July 1945, China, the
United Kingdom, and the United States signed the Potsdam Declaration, in which they
demanded Japan’s “unconditional surrender” and stated that “stern justice shall be meted out to
all war criminals.” At the time that the Potsdam Declaration was signed, the war in Europe had
ended but the war with Japan was continuing. The Soviet Union did not sign the declaration
because it did not declare war on Japan until weeks later, on the same day that the United States
dropped the second atomic bomb at Nagasaki. Japan surrendered six days later, on August 14,
1945.
At the subsequent Moscow Conference, held in December 1945, the Soviet Union, the United
Kingdom, and the United States (with concurrence from China) agreed to a basic structure for
the occupation of Japan. General MacArthur, as Supreme Commander of the Allied Powers, was
granted authority to “issue all orders for the implementation of the Terms of Surrender, the
occupation and control of Japan, and all directives supplementary thereto.”
In January 1946, acting pursuant to this authority, General MacArthur issued a special
proclamation that established the IMTFE. The Charter for the International Military Tribunal for
the Far East was annexed to the proclamation. Like the Nuremberg Charter, it laid out the
composition, jurisdiction, and functions of the tribunal.
The Charter provided for MacArthur to appoint judges to the IMTFE from the countries that had
signed Japan’s instrument of surrender: Australia, Canada, China, France, India, the Netherlands,
Philippines, the Soviet Union, the United Kingdom, and the United States. Each of these
countries also had a prosecution team.
As with the IMT, the IMTFE had jurisdiction to try individuals for Crimes Against Peace, War
Crimes, and Crimes Against Humanity, and the definitions were nearly verbatim to those
contained in the Nuremberg Charter. The IMTFE nonetheless had jurisdiction over crimes that
occurred over a greater period of time, from the 1931 Japanese invasion of Manchuria to Japan’s
1945 surrender.
The IMTFE presided over the prosecution of nine senior Japanese political leaders and eighteen
military leaders. A Japanese scholar also was indicted, but charges against him were dropped
during the trial because he was declared unfit due to mental illness. Japanese Emperor Hirohito
and other members of the imperial family were not indicted. In fact, the Allied powers permitted
Hirohito to retain his position on the throne, albeit with diminished status.
The Tokyo War Crimes Trials took place from May 1946 to November 1948. The IMTFE found
all remaining defendants guilty and sentenced them to punishments ranging from death to seven
years’ imprisonment; two defendants died during the trial.
After the Nuremberg and Tokyo War Crimes trials, additional trials were held to try “minor” war
criminals. These subsequent trials, however, were not held by international tribunals but instead
by domestic courts or by tribunals operated by a single Allied power, such as military
commissions. In Germany, for example, each of the Allied powers held trials for alleged war
criminals found within their respective zones of occupation. The United States held twelve such
trials from 1945 to 1949, each of which combined defendants who were accused of similar acts
or had participated in related events. These trials also were held in Nuremberg and thus became
known informally as the “subsequent Nuremberg trials.” In Japan, several additional trials were
held in cities outside Tokyo.
The Nuremberg and Tokyo tribunals contributed significantly to the development of
international criminal law, then in its infancy. For several decades, these tribunals stood as the
only examples of international war crimes tribunals, but they ultimately served as models for a
new series of international criminal tribunals that were established beginning in the 1990s. In
addition, the Nuremberg Charter’s reference to “crimes against peace,” “war crimes,” and
“crimes against humanity” represented the first time these terms were used and defined in an
adopted international instrument. These terms and definitions were adopted nearly verbatim in
the Charter of the IMTFE, but have been replicated and expanded in a succession of international
legal instruments since that time.
Genocide Convention, 1948 :
The world was entangled in the complexities of emerging tensions wherein the major power
blocks were embroiled in ideological differences that hit the shores of geopolitical interests
giving rise to numerous conflicts. This ignited the spirit of compassion in the United Nations and
led to the recognition of humanitarian issues that were caused by the Second World War.

The Background:

 The recognition of atrocities on people as a brutal outcome of the Second World War
took a consolidated form when the United Nations General Assembly adopted a
resolution in December 1947 and declared “Genocide” as an international crime that
involves the national and international responsibility of individual persons and states.
 In 1948, the Convention on the Prevention and Punishment of the Crime of Genocide was
adopted by the UNGA and came into force in 1951.
 The convention has been widely accepted by the international community with the
support of the majority of States.
 The lucid definition of the crime of genocide has been defined by the convention and
various other aspects enshrined in its 19 articles.
 The International Court of Justice (ICJ) has recognised the underlying principles of the
Genocide Convention.
 The Genocide Convention acts as an instrument of international law that led to the
codification of genocide, for the first time, as a crime.

What is Genocide?

Genocide has been defined under Article II of the Convention on the Prevention and Punishment
of the Crime of Genocide.

 According to the convention, genocide refers to the acts that are committed with the
intent to destroy in whole or partly, a national, ethnical, racial or religious group. These
acts include:

 Killing members of the group

 Causing serious bodily or mental harm to members of the group
 Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part.
 Imposing measures to prevent births within the group.
 Forcibly transferring children of the group to another group.
  Article I recognizes genocide, committed in times of peace or in times of war, as a crime
under international law. As interpreted by the ICJ, Article I refers to an obligation on the
states, not to commit genocide and prevent such events which have an extraterritorial
scope.
 Article III of the genocide convention lists out the acts that shall be punishable. These
punishable acts are:
 Genocide
 Conspiracy to commit genocide
 Direct and public incitement to commit genocide
 Attempt to commit genocide
 Complicity in genocide

Obligation on the State Parties:

 The State parties, under the convention, shall operate with an obligation to take measures
to prevent and punish the crime of genocide.
 The obligation under Article IV envisages that persons committing genocide shall be
punished by the member states even if they are constitutionally responsible rulers, public
servants, officials or private individuals.
 Article V puts an obligation on the states in order to give effect to the provisions of the
Convention through the relevant legislation. This article also offers a provision of
ensuring effective penalties for persons found guilty of criminal conduct as per the
Convention.
 There is an obligation put forth by Article VI of the Convention according to which a
person charged with genocide shall be tried in a competent tribunal of the State in the
territory of which the act was committed or by an international penal tribunal with
accepted jurisdiction.
 Grant of extradition when genocide charges are involved along with laws and treaties in
force, is an obligation under Article VII. This is related to the protection given by the
international human rights law prohibiting refoulement where there is a real risk of
human rights violations in the receiving state.
 This obligation along with the prohibition of not to commit genocide, are considered as
norms of international customary law and are binding on all the states irrespective of the
ratification of the Convention in those states.
Other important provisions of the Convention:

 Article VIII – Any contracting party may call upon the component organs of the United
Nations to take such action under the Charter of the UN as they consider appropriate for
the prevention and suppression of the events of genocide or any acts mentioned in Article
III of the convention.
 Article IX explains the disputes between the Contracting Parties and states that any act of
genocide shall be submitted to the International Court of Justice at the request of any
parties to the dispute.
Member States:
  There are about 152 member states at present that are engaged with the Genocide
Convention.
 Mauritius is the most recent country that signed the convention in 2019 but has yet to
ratify it.
 The Special Advisor on the Prevention of Genocide calls upon all United Nations
Members States that are not yet party to the Genocide Convention, to ratify or accede to
it as a matter of priority so that the convention transforms as an instrument of universal
membership.

Geneva Conventions of 1949 :

The Geneva Conventions of 1949 are a set of four treaties designed to establish international
legal standards for the treatment of individuals during armed conflicts. They form the core of
international humanitarian law and focus on providing protection to people who are not, or no
longer, participating in hostilities. The conventions cover the protection of the wounded,
prisoners of war (POWs), civilians, and those who are sick or shipwrecked during wartime.
These treaties were adopted in response to the increasing scale of warfare and the need to
humanize the treatment of those involved in conflict.

First Geneva Convention: The Wounded and Sick in Armed Forces in the Field (1949)

Purpose and Scope:

The First Geneva Convention is primarily focused on providing protection and care for the
wounded and sick members of the armed forces during land conflicts. It is designed to ensure
that soldiers who can no longer participate in combat due to injury or illness receive the
necessary medical care, regardless of their nationality.

Key Provisions:

 Protection for Medical Units and Personnel: The convention mandates that military
medical personnel (doctors, nurses, and medics) and facilities (hospitals, ambulances)
must be protected from attacks. These units are neutral, and the use of the Red Cross or
Red Crescent symbol is reserved to signify their neutral and protected status.
 Treatment of Wounded Soldiers: Soldiers who are wounded or sick must be given
medical care as soon as possible. There is no distinction based on whether they belong to
the enemy or not—each soldier, regardless of allegiance, is entitled to humane treatment
and care.
 Evacuation and Transportation: The wounded and sick must be evacuated to a safe
place for medical treatment. Medical transport should not be targeted, and all measures
must be taken to ensure their safe passage.
 Right to Care and Dignity: Wounded soldiers should not be exposed to unnecessary
suffering, and they are entitled to respect for their dignity. This includes provisions
related to their treatment, including access to clean facilities, medical supplies, and
hygiene.
Second Geneva Convention: The Wounded, Sick, and Shipwrecked Members of Armed
Forces at Sea (1949)

Purpose and Scope:

The Second Geneva Convention extends the protections provided to the wounded and sick to
naval warfare. It covers members of the armed forces who are wounded or shipwrecked at sea.
As naval warfare is often particularly brutal and dangerous for personnel on ships, this
convention outlines how they should be treated.

Key Provisions:

 Protection of Ships and Hospitals at Sea: Vessels used for medical purposes or the
transport of the wounded must be protected from attack. Ships marked with the Red
Cross or Red Crescent are treated as neutral and should not be targeted by enemy forces.
 Treatment of Shipwrecked Personnel: If soldiers or sailors are shipwrecked, they must
be provided with humane treatment. Those who are rescued should be cared for without
delay, and the detaining power must ensure their basic needs (food, medical care, and
shelter) are met.
 Evacuation and Transportation of the Wounded: Like in land conflicts, the
convention ensures that medical personnel and injured soldiers should be evacuated and
transported without risk of harm. Attacking or obstructing such operations is prohibited.
 Protection of the Red Cross/Red Crescent Symbol: The use of the Red Cross or Red
Crescent symbol on ships, ambulances, and facilities must be respected, ensuring that
enemy forces do not target those marked as medical or neutral.

Third Geneva Convention: The Treatment of Prisoners of War (1949)

Purpose and Scope:

The Third Geneva Convention is one of the most crucial aspects of international humanitarian
law, as it outlines the rights and treatment of prisoners of war (POWs). Prisoners of war are
soldiers or other combatants captured during an armed conflict, and the convention ensures they
are treated with dignity and respect, regardless of the conditions of the conflict.

Key Provisions:

 Humane Treatment: Prisoners of war must be treated humanely. Torture, degrading

treatment, and any form of violence are strictly prohibited. POWs cannot be subjected to
physical abuse or intimidation.
 Protection from Coercion: Prisoners cannot be forced to give false or self-incriminating
testimony, nor can they be coerced into working for the enemy under threat or duress.
 Medical Care and Hygiene: POWs must be provided with adequate medical care,
shelter, food, and hygiene facilities. The conditions in which they are held must meet
humane standards, and efforts must be made to prevent the spread of disease and illness.
  Labor Rights: POWs can be required to work, but they must not be forced into
dangerous or degrading work. Their wages should be equivalent to those paid to local
workers, and the conditions of their labor must not violate their human dignity.
 Communication and Correspondence: Prisoners have the right to communicate with
their families. They should be allowed to send and receive letters, postcards, and other
correspondence, and they must be allowed to inform their families of their capture.
 Judicial Review: POWs should have access to legal counsel and should not be detained
indefinitely without a hearing. The detaining power must adhere to clear legal processes
for the treatment and trial of prisoners of war.
 Release and Repatriation: The convention requires the repatriation of prisoners of war
when hostilities end. They must be freed and sent home as soon as possible once the war
concludes.

Fourth Geneva Convention: The Protection of Civilian Persons in Time of War (1949)

Purpose and Scope:

The Fourth Geneva Convention provides comprehensive protections for civilians during armed
conflicts. Unlike the other conventions, which focus on military personnel, the Fourth
Convention extends protections to non-combatants and civilians in occupied territories.

Key Provisions:

 Protection of Civilians from Violence: Civilians are to be protected from acts of

violence, including murder, torture, and inhumane treatment. All civilians are to be
treated with dignity and respect, even if they are from enemy territories.
 Prohibition of Collective Punishment: Collective punishment (punishing an entire
community or group for the actions of an individual) is prohibited under this convention.
This includes forced evictions, arbitrary executions, and the destruction of homes.
 Hostage Taking: Taking hostages is explicitly prohibited. Civilian hostages cannot be
held for ransom, forced labor, or other purposes.
 Respect for Family Life and Religious Freedom: Families must be allowed to maintain
contact, and family members should not be separated arbitrarily. Religious freedom is
also guaranteed, allowing civilians to practice their faith freely during wartime.
 Occupation and Civilian Rights: Occupying powers must respect the rights of civilians
in occupied territories. They must ensure that basic needs such as food, medical supplies,
and shelter are provided for. It is also forbidden to exploit the population’s labor or
resources for the benefit of the occupying power.
 Special Protections for Vulnerable Groups: The Fourth Convention places special
emphasis on protecting women, children, and the elderly. Women are to be protected
against sexual violence, and children are given special attention for their care and
upbringing during times of war.
 Evacuations and Safe Zones: Civilians must be evacuated from areas of active combat
when necessary, and they should be relocated to safe areas. Safe zones for the protection
of civilians, particularly women and children, may be established under the terms of the
convention.
Additional Protocols and Modern Relevance

Additional Protocols:

In 1977, two Additional Protocols were added to the Geneva Conventions to address modern
forms of conflict:

 Protocol I: Addresses the protection of victims in international armed conflicts,

enhancing the protection of civilians and combatants. It also strengthens rules on the
conduct of hostilities.
 Protocol II: Deals with non-international armed conflicts, which are typically internal
wars. It extends some of the protections of the Geneva Conventions to non-state actors
engaged in civil wars.
 Protocol III (2005): Introduces the Red Crystal as an additional emblem, alongside the
Red Cross and Red Crescent.

Modern Application:

The Geneva Conventions and their Additional Protocols continue to serve as the foundation for
the regulation of conduct in armed conflicts. They are binding on all states, and violations of
these conventions are considered war crimes. Modern international law, including institutions
such as the International Criminal Court (ICC), works to enforce these provisions and
prosecute those who commit war crimes.

ILC Draft Code of Crimes against the Peace and Security of

Mankind :
The ILC Draft Code of Crimes against the Peace and Security of Mankind is a significant
document created by the International Law Commission (ILC), which aims to codify and
clarify crimes under international law that threaten the peace and security of humanity. The Draft
Code provides a framework for the prosecution and punishment of individuals responsible for
heinous acts like war crimes, crimes against humanity, and aggression. It laid the groundwork
for later developments, such as the Rome Statute of the International Criminal Court (ICC),
which established the ICC in 2002.

The ILC, which was created by the United Nations, is responsible for progressively developing
and codifying international law. The Draft Code of Crimes was designed to address the lack of
a cohesive international legal framework for holding individuals criminally accountable for
crimes that threaten global peace and security. This Code was intended to be integrated into the
legal principles surrounding international criminal justice and reinforce the enforcement of
international humanitarian law (IHL).

Background and Context

The ILC Draft Code emerged after the Nuremberg Trials (1945-1949), which had prosecuted
the leaders of Nazi Germany for crimes committed during World War II. These trials set
precedents in international law regarding the prosecution of individuals for crimes against
humanity, war crimes, and crimes against peace. However, there was still no comprehensive,
binding international legal framework for the prosecution of individuals for such crimes globally.

The ILC's work on the Draft Code of Crimes began in 1950 but was significantly revised and
developed over the following decades. It culminated in 1996 with the final draft, which covered
the most egregious crimes against international peace and security, offering definitions and
suggesting legal frameworks for prosecuting those responsible for these crimes.

Key Aspects of the ILC Draft Code

1. Crimes Against the Peace and Security of Mankind

The ILC Code outlines the following major categories of crimes:

A. Crimes of Aggression

 Definition of Aggression: The Draft Code defines aggression as the use of armed force
by one state against another state without justification. This includes acts such as
invasion, bombardment, and blockades that result in violent conflict.
 Criminalization of Aggression: The commission of aggression is treated as a crime
under the draft Code, and individual leaders, military personnel, or government officials
can be held criminally liable for instigating or engaging in acts of aggression.
 Key Principle: Aggression was recognized as a grave international crime and held
responsible those who instigated or authorized military action without justification,
making it a war crime punishable under international law.

B. War Crimes

 Definition: War crimes are violations of the laws and customs of war, particularly
regarding the treatment of combatants, civilians, and prisoners. War crimes include acts
such as targeting civilian populations, using prohibited weapons, and attacking hospitals
or medical units.
 Focus on Individual Responsibility: The Draft Code emphasizes the criminal
responsibility of individuals, such as military leaders or political figures, who order or
engage in acts that violate the laws of war.
 Examples:
o Killing or mistreating prisoners of war or civilians.
o Attacking civilian infrastructure (e.g., schools, hospitals) without military
necessity.
o The use of prohibited methods of warfare, such as chemical or biological
weapons.

C. Crimes Against Humanity

 Definition: Crimes against humanity refer to widespread or systematic attacks against

civilians, including genocide, enslavement, torture, and extermination. Unlike war
crimes, crimes against humanity can occur in both wartime and peacetime.
  Scope: The scope of these crimes is extensive and includes not only direct acts of
violence but also actions that result in the systematic oppression and harm of entire
populations (e.g., ethnic cleansing).
 Examples:
o Genocide: Acts intended to destroy, in whole or in part, a national, ethnical,
racial, or religious group.
o Enslavement: The exercise of power over another person with the intent to exploit
them for forced labor or sexual exploitation.
o Torture: Infliction of severe pain or suffering, whether physical or mental, on an
individual to punish or intimidate them.
 Key Note: Crimes against humanity are not limited to combatants or wartime scenarios
—they can occur under any government or regime that carries out systematic attacks on
its population.

2. Jurisdiction and Accountability

 International Criminal Responsibility: The Draft Code asserts that individuals,

regardless of their status (e.g., state officials, military leaders, or non-state actors), can be
held criminally responsible for committing the aforementioned crimes.
 Universal Jurisdiction: The concept of universal jurisdiction is embedded in the Draft
Code, meaning that any state can prosecute individuals responsible for these crimes,
regardless of where the crimes were committed or the nationality of the perpetrators and
victims.
 Role of International Tribunals: The Draft Code advocates for the creation of
international tribunals to handle the prosecution of these crimes, reflecting the growing
international consensus that crimes against humanity, war crimes, and aggression must
not go unpunished.

3. Individual Criminal Responsibility

 Personal Accountability: A central principle of the Draft Code is that individuals must
be held personally accountable for their actions, even if they are acting under orders or as
part of a state apparatus. The defense of "just following orders" is not a valid excuse for
committing crimes.
 Responsibility of Leaders: The Code emphasizes that leaders, whether political,
military, or corporate, can be held criminally responsible for crimes that occur during
their tenure, as they often have the power to prevent or direct these acts.
 No Immunity: The Code establishes that there is no immunity for heads of state or other
high-ranking officials from prosecution for international crimes.

ILC Draft Code and Its Evolution

The ILC Draft Code was an important step in the development of international criminal law.
While it was never formally adopted in its entirety, it laid the foundation for later legal
instruments, including:

 The Rome Statute of the International Criminal Court (1998): This statute
established the International Criminal Court (ICC), which is now responsible for
 prosecuting crimes against humanity, war crimes, and genocide. Many of the definitions
and principles outlined in the ILC Draft Code were incorporated into the Rome Statute.
 International Criminal Tribunals (ICTY and ICTR): The International Criminal
Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal
for Rwanda (ICTR), both established in the 1990s, were directly influenced by the Draft
Code's focus on accountability for international crimes.

Although the ILC's Draft Code did not become a binding treaty on its own, it significantly
shaped the international legal framework for prosecuting crimes that threaten global peace and
security. Its influence is still present in current international law, and many of its provisions have
become customary law, forming the backbone of modern international criminal justice.

Individual Criminal Responsibility in International Criminal Law :

Individual criminal responsibility is a central principle in international criminal law (ICL),
which holds individuals accountable for committing the most egregious crimes, regardless of
their position or status. This principle challenges the earlier notion that only states, rather than
individuals, could be prosecuted for violations of international law. International criminal law
applies this principle to individuals who commit serious offenses, such as war crimes, genocide,
crimes against humanity, and aggression.

Individual criminal responsibility has evolved significantly, particularly in the 20th and 21st
centuries, in response to atrocities committed during wars and conflicts. The principle is
foundational to the work of international criminal courts and tribunals, such as the
International Criminal Court (ICC), and reflects the growing international commitment to
ensuring that individuals are held accountable for crimes that threaten peace and security.

Historical Background

The notion of individual criminal responsibility was a key feature in the aftermath of World
War II. The Nuremberg Trials (1945-1949) marked the first major international effort to hold
individuals criminally accountable for war crimes and crimes against humanity. The Nuremberg
Principles established the idea that individuals, including high-ranking officials and military
leaders, could be tried and convicted for committing international crimes.

Following the Nuremberg Trials, individual criminal responsibility became a cornerstone of

international law, culminating in the establishment of the International Criminal Court (ICC)
with the Rome Statute (1998). The ICC has the authority to prosecute individuals for the most
serious international crimes.

Key Principles of Individual Criminal Responsibility

1. Accountability for International Crimes: Individuals can be held criminally liable for
committing or ordering the commission of international crimes. These include:
o War Crimes: Serious violations of the laws and customs of war, such as targeting
civilians, using prohibited weapons, or mistreating prisoners of war.
o Crimes Against Humanity: Widespread or systematic attacks on civilians,
including genocide, enslavement, torture, and apartheid.
o Genocide: Acts committed with the intent to destroy, in whole or in part, a
national, ethnical, racial, or religious group.
o Aggression: The use of armed force by one state against another state in violation
of international law.
2. No Immunity for Leaders and Officials: The principle of individual criminal
responsibility means that state leaders, military commanders, and other high-ranking
officials can be held criminally responsible for international crimes. This includes heads
of state, ministers, and military officers, who traditionally enjoyed immunity from
prosecution in their home countries. The Nuremberg Trials emphasized that no one is
above the law, and this principle has been incorporated into modern international
criminal law.
3. The Right to a Fair Trial: Even though individuals are held criminally responsible for
international crimes, they are entitled to a fair trial. This means they must be informed of
the charges against them, have the opportunity to defend themselves, and be tried by an
impartial court. This principle is enshrined in international human rights law and is
guaranteed in international criminal law by courts such as the International Criminal
Court (ICC).
4. Command Responsibility: A key aspect of individual criminal responsibility in
international law is command responsibility, which holds military commanders or
civilian leaders responsible for crimes committed by subordinates. This concept was first
established in the Nuremberg Trials and further developed in subsequent cases. A leader
can be held liable if they knew, or should have known, about the crimes being committed
by their forces and failed to take reasonable steps to prevent them or punish those
responsible.
o Criteria for Command Responsibility:
 The individual must have effective control over the subordinate's actions.
 The individual must have had knowledge of the crimes or should have
known about them.
 The individual failed to take necessary measures to prevent or punish the
crimes.
5. Criminal Responsibility for Planning and Instigating Crimes: Under international
law, individuals can be held criminally liable for not only carrying out crimes but also for
planning, instigating, or conspiring to commit international crimes. For example,
individuals who are responsible for organizing a genocide or a widespread campaign of
violence against civilians can be held accountable even if they did not physically carry
out the acts.
6. Participation in Joint Criminal Enterprises (JCE): The concept of joint criminal
enterprise (JCE) holds individuals accountable for being part of a criminal group or
organization involved in the commission of international crimes. Even if an individual
did not directly carry out a specific act, they can still be held responsible for the overall
criminal enterprise.
 Types of JCE:

o JCE I (Basic): Involvement in a common criminal purpose or plan.

o JCE II (Extended): Participation in a joint enterprise that foreseeably results in
crimes committed by other members of the group.
o JCE III (Co-perpetration): Shared responsibility for specific crimes, with each
participant contributing to the commission.

Legal Foundations of Individual Criminal Responsibility

Several key documents and institutions establish and support the principle of individual criminal
responsibility in international law:

1. Nuremberg Principles: The Nuremberg Trials (1945-1949) marked the first major
international effort to hold individuals criminally responsible for crimes committed
during WWII. The Nuremberg Principles, established by the United Nations in 1950,
defined war crimes, crimes against humanity, and crimes against peace as crimes for
which individuals could be held accountable. These principles laid the foundation for
modern international criminal law.
2. The Rome Statute of the International Criminal Court (1998): The Rome Statute
established the International Criminal Court (ICC) and explicitly outlines the
principles of individual criminal responsibility. The Rome Statute defines the crimes
within the jurisdiction of the ICC (including war crimes, crimes against humanity,
genocide, and aggression) and sets out procedures for prosecuting individuals responsible
for such crimes.
o Article 25 of the Rome Statute clearly articulates the principle of individual
criminal responsibility. It states that an individual can be held criminally
responsible for a crime if they commit, order, indirectly commit, or contribute
to the commission of that crime.
3. International Criminal Tribunals: The International Criminal Tribunal for the
former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR) were created to prosecute individuals responsible for war crimes and crimes
against humanity committed during the conflicts in the former Yugoslavia and Rwanda.
Both tribunals reinforced the idea that individuals, including political and military
leaders, can be held criminally accountable for atrocities.

Defenses in International Criminal Law

While individual criminal responsibility is the cornerstone of international criminal law,

defendants can present certain defenses. These include:

1. Mental Disease or Defect: A defendant can argue that they were mentally incapable of
understanding the nature of their actions or that they lacked the intent to commit the
crime due to mental illness. This defense can reduce or eliminate criminal liability.
 2. Duress: A person may claim that they were forced to commit a crime under threat of
death or harm to themselves or others. However, this defense is rarely successful in
international criminal law, especially in cases involving grave crimes such as genocide or
war crimes.
3. Following Orders (Superior Orders): While individuals can be held responsible for
crimes even if they were following orders, the defense of superior orders (being forced
to act under the command of a superior) is not an absolute defense. However, it can be a
mitigating factor if the defendant can demonstrate that they were genuinely unable to
disobey the orders.

The Role of International Criminal Courts and Tribunals

International criminal courts and tribunals play a critical role in the enforcement of individual
criminal responsibility:

1. International Criminal Court (ICC): The ICC is the permanent institution responsible
for prosecuting individuals for the most serious international crimes. The court has
jurisdiction over crimes such as genocide, war crimes, crimes against humanity, and
aggression. It holds individuals, including heads of state, accountable for violations of
international law.
2. Ad Hoc Tribunals (ICTY, ICTR): The ICTY (established in 1993) and ICTR
(established in 1994) were set up to prosecute individuals for crimes committed during
the conflicts in the former Yugoslavia and Rwanda. These tribunals also reinforced
individual criminal responsibility and provided a forum for prosecuting crimes that had
global implications.

State Sovereignty and International Criminal Law:

State sovereignty and international criminal law (ICL) are two core concepts in international
law that often intersect and sometimes conflict. State sovereignty refers to the supreme authority
of a state to govern itself without interference from external powers, while international
criminal law involves holding individuals accountable for crimes such as war crimes, genocide,
crimes against humanity, and aggression. The relationship between state sovereignty and
international criminal law raises important questions about the balance between the rights of
states to govern their territories and the need to ensure accountability for violations of
international norms that threaten global peace and security.

1. Understanding State Sovereignty

State sovereignty is a fundamental principle of international law, rooted in the concept that a
state has exclusive authority over its territory, government, and people without external
interference. This principle is enshrined in Article 2(1) of the United Nations Charter, which
states that the UN is based on the sovereign equality of all its members. State sovereignty
includes:

 Political Sovereignty: The authority of a state to make decisions regarding its domestic
and foreign policies without interference.
 Legal Sovereignty: The right of the state to create and enforce laws within its
jurisdiction.
 Territorial Integrity: The state's right to control its geographical boundaries and prevent
foreign intrusion or occupation.

Sovereignty is also tied to the idea of non-intervention, meaning that one state should not
interfere in the internal affairs of another state, and that the sovereignty of states must be
respected in international relations.

2. The Emergence of International Criminal Law

International criminal law, on the other hand, is concerned with the prosecution and punishment
of individuals who commit the most serious international crimes—war crimes, genocide,
crimes against humanity, and aggression. Traditionally, these crimes were considered matters
of national jurisdiction, meaning that states were responsible for prosecuting such crimes
within their own borders.

However, the post-World War II era saw a shift toward internationalization of criminal law,
particularly with the Nuremberg Trials (1945-1949), which marked the first major effort to hold
individuals criminally accountable for international crimes. Following the Nuremberg and Tokyo
Trials, various efforts were made to establish permanent international institutions to prosecute
perpetrators of atrocities.

This led to the establishment of the International Criminal Court (ICC) under the Rome
Statute (1998), which was a monumental step in creating an international legal framework to
hold individuals accountable for crimes that threaten international peace and security. The ICC's
jurisdiction extends to states that have ratified the Rome Statute and to individuals who commit
crimes within its jurisdiction.

3. Tensions Between State Sovereignty and International Criminal Law

The concept of state sovereignty and the emerging framework of international criminal law
have often been in tension. Key areas of conflict include:

A. Jurisdictional Issues:

 State Consent and International Criminal Jurisdiction: International criminal law

operates primarily based on the principle of consent. This means that a state must either
voluntarily accept the jurisdiction of international criminal institutions (such as the ICC)
or be subject to prosecution for international crimes committed within its territory.
 The Rome Statute provides that the ICC may only exercise jurisdiction over a state if
that state is a party to the Statute or if the United Nations Security Council refers the
 situation to the ICC, as seen with the cases in Darfur (Sudan) and Libya. Therefore,
states can limit or refuse the jurisdiction of the ICC over their nationals by not ratifying
the Rome Statute or by lodging a withdrawal from it (e.g., Burundi, South Africa, and
Gambia temporarily withdrew, though Gambia later rejoined).
 The ICC’s jurisdiction is limited to the prosecution of individuals, not states, and its
ability to intervene can be seen as an infringement on state sovereignty.

B. Complementarity and the Principle of Sovereignty:

 The complementarity principle in the Rome Statute balances state sovereignty with the
need for international criminal accountability. According to this principle, the ICC only
intervenes if national courts are unable or unwilling to prosecute the crimes in question.
In essence, states retain the primary responsibility to investigate and prosecute
international crimes, and the ICC is a court of last resort.
 This principle respects the sovereign right of states to handle matters within their
jurisdiction but also ensures that there is no impunity for the most serious crimes when
states fail or refuse to take action.

C. Non-Intervention and the Political Dilemma:

 Some states argue that international criminal law undermines state sovereignty by
allowing foreign intervention in domestic affairs, particularly when the ICC or other
international bodies intervene in cases involving crimes committed within a sovereign
state's borders. This is especially controversial in cases where UN Security Council
referrals or the ICC's investigative powers challenge the principle of non-intervention.
 For instance, the ICC's involvement in cases like the arrest warrant for Sudan’s
former president Omar al-Bashir (for genocide, war crimes, and crimes against
humanity committed in Darfur) was controversial and led to arguments that such
intervention violates Sudan's sovereignty. Sudan, as a non-party to the Rome Statute,
rejected the ICC's authority, arguing that it infringed on its sovereignty.

D. Immunity of Heads of State and Sovereign Immunity:

 Sovereign immunity traditionally protects heads of state and government officials from
prosecution in foreign courts, based on the idea that a state’s leader is immune from
judicial process while in office. However, international criminal law has gradually
eroded this concept of immunity.
 The Nuremberg Trials and subsequent international cases (such as those under the ICC)
challenged the notion of absolute immunity. The Rome Statute specifically removes
immunity for heads of state and government officials for crimes such as war crimes and
crimes against humanity, meaning that they can be prosecuted even while holding office.
 For example, Muammar Gaddafi (Libya) and Omar al-Bashir (Sudan) were subject to
international warrants for arrest issued by the ICC, despite their positions as heads of
state. This represents a significant shift away from the notion of immunity in international
law.

4. The Role of the United Nations in Balancing Sovereignty and International Criminal
Law
The United Nations (UN) plays a critical role in the relationship between state sovereignty and
international criminal law. Key UN mechanisms related to this issue include:

A. The Security Council:

 The UN Security Council has the authority to refer situations to the ICC, even if the
state in question is not a party to the Rome Statute. This gives the Security Council
significant power to override state sovereignty and ensure accountability for crimes that
threaten international peace and security. The Security Council's Chapter VII powers
(under the UN Charter) allow it to take action in cases where international crimes
constitute threats to global security.
 For instance, the Security Council's referral of the situation in Darfur to the ICC in
2005 raised questions about the balance between sovereignty and the international
community’s responsibility to prevent atrocities.

B. The Role of State Cooperation:

 The UN and the ICC depend on state cooperation for the effective implementation of
international criminal justice. States are required to arrest and surrender individuals to
international courts when warranted by an ICC decision. However, this often faces
obstacles when states are unwilling to cooperate, as seen in cases involving the non-
arrest of Sudanese President Omar al-Bashir.
 The relationship between state cooperation with international criminal institutions and the
principle of sovereignty often leads to tensions, particularly when states refuse to enforce
ICC arrest warrants or challenge the court's jurisdiction.