What difference does it make to the dead, the orphans and the homeless, whether the mad destruction is wrought under the name of totalitarianism or in the holy name of liberty or democracy?

These concerns of Mahatma Gandhi have found echo in the International Humanitarian Laws formulated to govern the conduct of states and individuals during conflict. War or armed conflicts among nations have been a part of the world history since time immemorial.

Though, war in itself can squarely fall under the definition of crime, there are certain acts on part of the opposing troops, that are detested by international community as being violative of human rights. Acts such as torturing and killing of prisoners and civilians, employing child soldiers, attacks on educational and/or religious institutions, genocide amongst others, are termed as War Crimes.

Though various efforts have been made by the international community to avoid such war like situation, not all efforts have proved to be fruitful and thus there arises a need to regulate the conduct of the states during such times. War in any form has disastrous consequences. Uncodified rules of conduct have to some extent proved to act as cushion thereby easing the aftermath on civilians. Upon a microscopic view of the humanitarian laws, one would realize that these laws to a great extent form a part of jus cogens principle of international law.

Definition of War crimes

There seems to exist no substantial definition of war crimes which could be used by criminal tribunals and courts while dealing with war crimes. Till date the most widely used approach with regard to a war crime is an act which is considered as violative of the law of war and has been criminalized.

Over the years, following two parameters have been recognized by the international community to term a crime as a war crime, namely:

1. When an act is violative of International Humanitarian Law; and
2. Such an act is considered serious.

Thus, not all acts that are violative of International humanitarian Laws are considered as being war crimes.

The rules governing war/conflict finds its roots way back in the eighteenth century. However, the concept of war crimes has evolved at a much later date. The earliest traces of the concept of war crimes dates back to 'the Lieber Code, issued by President Abraham Lincoln in 1863 to regulate the conduct of Armies of the United States in the Field.

Though it did not refer to war crimes, the Lieber Code stipulated that the law of war disclaimed all cruelty and bad faith concerning engagements concluded with the enemy during the war, and that violations shall be severely punished. The Code provided for prosecution of soldiers who violated the law of war.'[1]

One of the earliest International treaties such as Hague and Geneva, relating to laws of war have failed and neglected to define war crimes. Thus, an attempt has been made by the Roman Statute to list down acts amounting to war crimes. Article 8 of the Roman Statute defines war crimes and it reads as under:
For the purpose of this Statute, war crimes means:

1. Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
   
   1. Wilful killing
   2. Torture or inhuman treatment, including biological experiments;
   3. Wilfully causing great suffering, or serious injury to body or health;
   4. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
   5. Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
   6. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
   7. Unlawful deportation or transfer or unlawful confinement;
   8. Taking of hostages'[2]

Origin of International Tribunals dealing with war crimes

In the post-World War – II period, Allied powers had sought to establish an International Tribunal to prosecute Nazi Officials for crimes committed against humanity. This tribunal was known as the Nuremberg Trials. The trial had stretched over for 13 days but with no effective outcome. It failed to act as a deterrent against future war crimes and was thus perceived as being ineffective and inefficient. However, it is regarded as a milestone in the idea of creation of such an international establishment dealing with war crimes and crimes against humanity.

In wake of the gruesome crimes committed against humanity in Yugoslavia in 1990, the United Nations took it upon itself to set up an International Criminal Tribunal for Former Yugoslavia (ICTY) that 'provided victims an opportunity to voice the horrors they witnessed and experienced, and proved that those suspected of bearing the greatest responsibility for atrocities committed during armed conflicts can be called to account.'[3] It may be noted here that ICTY was operative for a period of 24 years beginning from 1993 to 2017. During its mandate, it has greatly contributed in dealing with crimes against humanities and war crimes.

Establishment of International Criminal Court

Owing to the success of ad hoc criminal tribunals in dealing with war crimes, a need was felt by various nation states for establishment of a permanent judicial body so as to deter prospective war criminals, bring justice to the victims of atrocities and to establish the rule of law. Accordingly, the Rome Statute of International Criminal Court was adopted by the United Nations whereby the permanent International Criminal Court (ICC) is established.

'The Rome Statue grants the ICC war crimes jurisdiction over grave breaches of the Geneva Conventions of 1949, serious violations of Common Article 3 to the Geneva Conventions, and other serious violations of the laws and customs applicable in international armed conflict and NIAC (non – international armed conflict).[4] The ICC having been found entirely under the watchful eye of the UN Security Council, thus giving rise to various apprehensions regarding fair play. The Rome Statute has been adopted and ratified by 111 countries and it is pertinent to note that the non – signatories to the Statute amount to a majority of the world's population.

Working of international tribunals

Upon a microscopic analysis of these tribunals, one would experience an epiphany, that these tribunals had been set up by specific nation states to deal with crimes committed within a specified territorial jurisdiction. Even the idea of establishment of a permanent international judicial forum was promulgated by the super powers and thus arises criticism, in respect of independence of these tribunals. However lopsided the functioning of these tribunals may seem, the efforts of the world community in creating a new threshold for dealing with heinous crimes cannot be disregarded. One such example is the establishment of International Criminal Court.

'The International Criminal Court ( ICC ) is an unprecedented initiative by the world community to go over the heads of national governments and bring to trial and punish individuals responsible for the commission of genocide, war crimes, crimes against humanity and aggression in situations when the countries to which they belong are unable or unwilling to bring them to justice. There has been widespread international sentiment for a long time that such an independent, permanent criminal court was needed to deal with heinous crimes of international concern in such situations.'[5]

Competence of tribunals in dealing with war crimes:

The answer to the question as to whether tribunals have achieved their objective in effectively dealing with war crimes, cannot be provided with certainty. The organisational structures, lack of robust support from international community, lack of definition of war crimes are some of the issues that pose a serious obstacle in effectively dealing with war crimes by tribunals. A few of the reasons leading to inefficiency of the tribunals are discussed below:

• No clear definition
  Tribunals were set up to deal with perpetrators of war crimes, in addition to crimes against humanity, genocide, violation of Geneva Convention and state aggression. What is interesting to note is that all the other crimes that fall within the jurisdiction of these tribunals could be referred to as legal violations of international law since these crimes have been defined with certainty by various conventions and treaties. This drawback in a way halts the smooth process of dealing with war crimes.
  
  As there exists no certainty with regard to what is a 'war crime' and how can a war crime be differentiated from that as crime against humanity, there is bound to arise difference of opinions in tagging an act as a war crime. Thus, a need is felt by the international community to define war crime.
   
• Enforcement mechanism
  Though it is true that tribunals have had a steady conviction rate in respect of crimes committed against humanity, the fact that there has always been handwringing amongst international justice system with regard to enforcement of these convicts. 'Individuals convicted of crimes by the ICTR, ICTY, or the Mechanism do not serve their sentences in the United Nations detention facilities in Arusha or The Hague, because these facilities are not penitentiaries. Sentences are served in UN Member States that have concluded enforcement agreements with the United Nations for sentences pronounced by the ICTR, the ICTY or the Mechanism' [6]. This system of enforcement has seldom proved to be effective.
   
• Organisational Structure
  International Criminal Tribunals have been set up under the guidance and instance of the United Nations' Security Council, thus giving rise of justifiable apprehensions with regard to impartiality of there tribunals. In effect it is believed that the permanent members of the Security Council have wider hold over the functioning of these tribunals thereby creating lack of trust amongst the non-signatories to these tribunals.
  
  African nations in particular have felt that these tribunals operate on political and racial bias and has thus gone forward to accuse the ICC with disproportionate targeting of the African continents. As ICC is regarded as too expensive an affair, the funding required for the functioning is majorly received from the permanent member states of UN Security Council, which furthers the bias thereby tainting the independence of these tribunals.
   
• Lack of robust support
  The concept of State Sovereignty is so deeply ingrained within majority of the nation states that acceptance of an international jurisdiction over crimes against humanity & war crimes, is unimaginable. To protect and preserve the infringement of its state independence, various nation states have abstained from signing or ratifying the Rome Statute.
  
  Major power like United States of America have too abstained from ratifying the Rome Statute as a measure to protect its military officers from the purview of the ICC. Due to such non participation by few of the major nation states, it is difficult to bring justice to the victims of war crimes.
  
  As a principle of international law, no state can be forced to accept the jurisdiction of any tribunal or state, thus the non-signatory member states may under the garb of putting their military personnel to trial before their national judicial forums, may well abstain from surrendering such perpetrators to the jurisdiction of international courts.

Conclusion
Though there exists various road blocks in effectively dealing with war crimes by international forums, the efforts in this behalf are noteworthy and have till a large extent acted as a deterrent against commission of war crimes. The idea of establishment of an international criminal forum is itself an achievement and further, the responsibility of such crimes was shifted from state to that of an individual. This paradigm shift from state responsibility to individual responsibility has largely helped in reduction of war crimes.

'On the positive side of the ledger, the ICC, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda (ICTR) secured the arrest and conviction of some of the key perpetrators of organized campaigns of violence against civilians in Africa and the former Yugoslavia, including former Congolese Vice President Jean-Pierre Bemba and former Bosnian Serb Republic President Radovan Karadžić. Bemba's conviction also marked the first successful prosecution of rape before the ICC and the first application of the principle of commander responsibility for the actions of subordinate officers.[7]

Though there exists various apprehensions with regard to the impartiality and efficiency of these tribunals in dealing with war crimes, there is data which records a conviction rate of 36%.
The tribunals haven't proved to be entirely efficient in dealing with war crimes, but with bringing about certain modifications in the functioning of these tribunals, the idea of world co -operation in bringing criminals of war crimes to trial will no longer be far-fetched dream.

End-Notes:

1. Article published in 'The Yale Journal of International Law' by Oona A. Hathaway, Paul K. Strauch, Beatrice A. Walton, Zoe A. Y. Weinberg, Vol – 44: 1 2019 Pg. no. 57 – 58.
2. https://www.un.org/en/genocideprevention/war-crimes.
3. https://www.icty.org/
4. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1695&context=yjil
5. https://www.orfonline.org/research/
6. https://www.irmct.org/en/about/functions/enforcement-of-sentences
7. https://www.americanprogress.org/issues/security/reports/2018/03/28/448415/international-justice-trial/