Case Explained: Pushing Boundaries: Domestic Courts and Legislatures as the New Laboratory for War Crimes Law – Legal Perspective

War crimes belong to the category of so-called “core” international crimes over which the International Criminal Court (ICC) wields jurisdiction. Under the complementarity principle, States have primary responsibility for the prosecution of war crimes, implying that the ICC only steps in when a State appears to be either unwilling or unable to prosecute a case (ICC Rome Statute, arts. 1, 17). One way in which States parties to the Rome Statute can give shape to their commitment to take the lead in prosecuting war crimes is by investigating and prosecuting foreigners who have allegedly committed such crimes abroad and who now happen to be present on their territory. The legal basis for such prosecutions is the principle of universal jurisdiction (UJ).

In respect of the most grave violations of international humanitarian law (IHL) that are committed in international armed conflicts (IACs), provisions of the 1949 Geneva Conventions (GC) and 1977 Additional Protocol I stipulate that States parties are under a duty to either prosecute or surrender persons suspected of committing such grave breaches (GC I , art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146). These aut dedere, aut judicare provisions can arguably be considered a form of “qualified” universal jurisdiction.

Apart from this explicit regulation, however, conventional international law is silent regarding the obligations of States to address violations of IHL by criminal enforcement. The domain of non-international armed conflicts (NIACs), in particular, is a largely uncharted area. While at first sight States may appear to have full discretion to exercise UJ in cases of war crimes committed during NIACs, there is growing consensus that such far reaching initiatives which may impinge upon the interests of other States must be grounded in customary international law: i.e., require establishing that the identified “war crime” is part of IHL and amenable to UJ under customary international law.

Our book, Universal Jurisdiction over Core International Crimes: Law & Practice, offers an inventory of how thirteen States have addressed the challenge of navigating between IHL compliance and adopting a more activist approach aimed at the law’s further development. After all, the dauntless step of going beyond the parameters of international law implies its violation, yet it is also indispensable for its further evolution. Further analysis of legislation and case law reveals that States have not shied away from pushing the limits of law.

Implementing War Crimes Law in Domestic Legislation

The reference to the Rome Statute is not coincidental. The legislative steps that States have taken to implement their obligations under the Rome Statute provided them with an opportunity to “show their colours” regarding the war crimes they would be willing to prosecute on the basis of UJ. It might be noted in passing that the incorporation of certain war crimes (committed in NIACs) in domestic substantive law does not necessarily indicate that the concerned State has also decided to extend UJ over them. This discrepancy became apparent during Australia’s implementation of the Rome Statute (Cormier, p. 62-63).

Our analysis reveals, however, that in all the States studied in our book, the incorporation of a war crime (also those committed in a NIAC) in domestic legislation also included the extension of UJ to prosecute foreign suspects involved in the commission of that crime. As to the implementation of the Rome Statute and the concomitant introduction of war crimes, four approaches can be identified. Some States—France (Fournet, p. 257-58) and Australia (Cormier, p. 59-60)—have followed the safe path by largely reproducing the Rome Statute. This guarantees that the introduction or reform of substantive criminal legislation does not exceed the boundaries of international law.

Secondly, some States have adopted an á la carte approach by incorporating certain serious violations of IHL that are not featured in the Rome Statute as a war crime into their domestic laws. They have done so either by designating conduct as a war crime irrespective of whether it is committed in an IAC or a NIAC (e.g., Belgium and the “war crime” of delaying the repatriation of prisoners and Apartheid in NIAC, Holvoet, p. 107), or by indicating which crimes that are proscribed in the Rome Statute only in case of IACs are also punishable under their domestic law if committed in NIACs (e.g., Austria, on attacks against undefended towns or demilitarized zones; Sauermoser, p. 87-8).

Thirdly, some States have also aspired to a more comprehensive equalisation of the normative frameworks that are applicable in IACs and NIACs, either partially, only with respect to “grave breaches” of the Geneva Conventions (Switzerland, Schuerch and Mueller, p. 529), or categorically (Sweden, Klamberg, p. 492; Norway, Lingaas et al., p. 417, 426). Finally, States like Canada, which have refrained from listing specific war crimes in their legislation, instead rely on a blanket reference to customary and conventional international law as the basis for criminalising war crimes in their domestic law (Rikhof, p. 143-44).

In general, one may conclude that most domestic legislatures of the States featured in our book have opted for a wider criminalisation of serious violations of IHL than the Rome Statute. However, in doing so, they have been careful to observe the limitations of customary international law. Domestic courts have displayed a bolder approach in their application and interpretation of the elements of war crimes.

Beyond Legislation: Domestic Courts Charting New Terrains in War Crimes Law

The above analysis shows that most States in our study have not been reluctant to depart from international legal standards when incorporating war crimes law into their domestic legislation, thus contributing to the evolution of this field. This dynamic is also evident at the level of adjudication. Domestic courts have increasingly exercised (universal) jurisdiction to try individuals for, inter alia, war crimes. Because the accused in these domestic trials have typically (though not invariably) been low-ranking perpetrators—rather than the senior military/political officials commonly tried before international tribunals—judges have often been confronted with factual scenarios that raised novel legal questions. Examples can be found in the jurisprudence examined in our book, some of which are highlighted here.

To begin with, domestic courts have adjudicated issues not considered by modern international courts and tribunals. An example of this involved the interpretation of Article 4(2)(h) of Additional Protocol II (AP II) to the Geneva Conventions, which prohibits “threats to commit” any of the other war crimes included in that provision. Although recognized as a distinct war crime under Article 4(h) of the Statute of the International Criminal Tribunal for Rwanda (ICTR), the ICTR never applied the provision, prompting one author to observe,

no accused person has been charged with the offence of threats to commit war crimes before the ICTR and it is, in fact, quite unlikely that this ever will occur. In the event that the Tribunal was required to consider this offence, it would likely be necessary for the court to refer for assistance to the principles of law established in domestic criminal law systems of the world, as there are no obvious specifically international criminal law precedents on that point. (Mettraux, p. 103).

Such a precedent was created in 2009, when a local Dutch court convicted a Rwandan national, Joseph Mpambara of, inter alia, the war crime of “threatening to use violence” against protected persons (Yanev, at 387-91; Van den Herik). During the Rwandan genocide, the accused had set up a roadblock in his home village where, together with others, he stopped vehicles with fleeing Tutsis, called them “cockroaches,” brandished their machetes, and threatened to kill them. The Hague District Court found that although the act of “threatening to use violence” is not listed in Common Article 3 of the Geneva Conventions, it was expressly included under Article 4(2)(h) of AP II and “is sufficiently serious to be regarded as a war crime” seeing as it “protects important values and a violation thereof has had enormous consequences for the victims as was shown during the trial.” (Judgment, Chapter 25, para. 22).

At other times, domestic courts have broken new ground in defining the legal elements of war crimes. One notable example concerned domestic litigation addressing whether deceased individuals qualify as “protected persons” under Common Article 3 of the Geneva Conventions. This issue has arisen in cases involving accused who posed in so‑called “trophy photos” with the (decapitated) bodies of enemy fighters, conduct that prosecutors in various States have sought to characterize as the war crime of “outrages upon personal dignity” as established in Common Article 3(1)(c). The question has not been litigated by modern international courts and tribunals, and some academics have rejected the notion that the deceased fall within the scope of “protected persons” under Common Article 3. (Ambos).

Domestic courts of various States, however, have held that the war crime of outrages against personal dignity can be committed against dead persons. Examples of such jurisprudence include the cases of Rami K. and Amin M. in Germany (Meisenberg, p. 326-28, 344-46), Jebbar-Salman and Hilal in Finland (Heikkilä, p. 234-36), Ahmad al-Y. in the Netherlands (Yanev, p. 391-94), Saeed in Sweden (Klamberg, p. 505-06), and Kosiah in Switzerland (Schuerch and Mueller, p. 540). Some of these courts not only referred to one another’s jurisprudence to support their finding that the deceased are “protected persons” within the meaning of Common Article 3, but also cited a footnote to this end in the ICC Elements of Crimes definition of “outrages upon personal dignity.”

The latter is notable given that: (i) the majority of these cases were against nationals of non-party States to the Rome Statute (Syria and Iraq); and (ii) it is debatable whether the definition included in the ICC Elements of Crimes was reflective of international custom at the time. The growing body of jurisprudence on this point could now be used to advance such an argument. Also, it bears noting that these trials offer useful insights on the minimal conduct necessary to satisfy the actus reus of this particular war crime. In the Ahmad al-Y. case, for example, Dutch judges held that the act of exposing a captured enemy fighter to public curiosity by releasing online video of him in captivity, while potentially humiliating and contrary to Article 13 of the Third Geneva Convention, cannot satisfy the actus reus of “outrages upon personal dignity” under Common Article 3. (Judgment, § 5.4.2.3.).

There have also been instances when municipal courts have broken new ground in war crimes law by articulating war crimes that were not included in the statutes of the international criminal courts and tribunals, were not recognized as such in their jurisprudence, and were not established in IHL treaties. For example, in the Arklöv case in Sweden (Klamberg, p. 495-96) and the Abdul Razaq Arif case in the Netherlands (Yanev, p. 402-03), courts found that arbitrarily depriving protected persons of their liberty in the context of a NIAC is a separate and distinct war crime. Thus, even in a State like the Netherlands, where the legislature has kept the classical distinction between war crimes in IAC and NIAC, the judicial interpretations have gradually narrowed this divide.

Progressive as this development may be, the legality principle counsels caution in the methodology adopted by judges when determining that certain conduct constitutes a war crime in NIAC. In both Sweden and the Netherlands, courts have relied heavily on the ICRC’s Study on Customary IHL, citing Rule 99 to confirm that arbitrary deprivation of liberty is prohibited in both IAC and NIAC (Klamberg, p. 496; Abdul Razaq Arif Judgment, §17). However, while this might be enough to establish that the conduct in question indeed violates IHL, it does not suffice to also confirm that the conduct entails individual criminal responsibility, i.e., that it is a war crime. For the latter, additional legal analysis, as outlined in the four well‑known conditions formulated by the International Criminal Tribunal for the Former Yugoslavia Appeals Chamber in the Tadić case (i.e., the “Tadić conditions”), would be required. (Castelijn & Yanev).

Conclusion

When the Dutch legislature incorporated war crimes law in the International Crimes Act of 2003, it included in it the residual, “catch-all” Section 7, which criminalizes any violation of the laws and customs of war in IAC and NIAC, other than the war crimes expressly listed in Sections 5 and 6. As explained in the Act’s drafting history, the purpose of this provision was to ensure that Dutch courts are equipped to address the “ever‑evolving field of international humanitarian law” without the need for constant legislative amendments. (Yanev, p. 373). A degree of judicial activism was thus already anticipated, even if no one could have foreseen at the time the volume of war crimes trials that the Hague District Court would actually come to hear two decades later, jokingly earning it the moniker of “the busiest ICC in The Hague.” Indeed, during a recent event organized by the District Court, an investigator from the Dutch international crimes unit observed that, even if all armed conflicts worldwide were to cease today, the unit would still face decades of work arising from investigations that are already underway.

Our collaboration with colleagues on Universal Jurisdiction over Core International Crimes: Law & Practice has further shown that this development is not unique to the Netherlands. It reflects a broader trend among States, whereby legislatures and courts are increasingly asserting their role in the international criminal justice project and, in doing so, pushing and clarifying the boundaries of war crimes law.

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Prof Dr Harmen van der Wilt (em.) held the chair of international criminal law at the University of Amsterdam from 2004- 2022. He is a member of the editorial board of the Journal of International Criminal Justice and vice-president of the Antonio Cassese Foundation.

Lachezar Yanev is an Associate Professor in the Criminal Law Department at the Vrije Universiteit Amsterdam.

The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

 Photo credit: TSgt. Marv Krause, United States Air Force