INTRODUCTION

The way in which international tribunals address crimes committed in combat will have a

substantial impact on perceptions of the tribunals by national foreign ministries and defense

departments and may also have a substantial impact on the development of international

humanitarian law (IHL) as well as the development of international criminal law. The ICC

may, of course, simply adopt the approach taken by most tribunals in the past, including

those which adjudicated the post-World War II war crimes cases, and ignore offences

committed in combat. Defensible arguments can be made that prosecutors can and must

choose which cases to prosecute from an abundance of atrocities and that it is preferable to

choose cases involving clear cut crimes and generally agreed morally wrong acts. I have

taken part in one conference in which a respected speaker suggested that crimes committed

in combat such as unlawful attacks should be regarded as non-justiciable because they

would be too difficult to prosecute.

A defensible and realistic objective for international prosecutors

handling combat related cases is to stretch the legal envelope, to pursue legal standards

slightly in advance of state practice. It is not to rip the end off the envelope in pursuit of

combat standards which turn all persons who fight wars, even those from law-sensitive

states acting in good faith, into criminals. My reflections on the legal relationship between

crimes against humanity and war crimes occurring in a combat context and on how we

have learned, and continue to learn, to handle combat related issues in the ICTY–OTP may

be of assistance to you as you begin to grapple with similar issues before the ICC. My

reflections will focus in particular on the war crime of unlawful attacks on civilians and the

crime against humanity of persecution.

WHAT ARE WAR CRIMES

war crimes are: (a) one of a list of acts generally prohibited by treaty but occasionally

prohibited by customary law, and (b) committed during an armed conflict. Some of these

acts are prohibited in international conflicts alone, some in internal conflicts alone and
some in all conflicts. The prohibited acts must be committed (c) by a perpetrator linked to

one side of the conflict, and (d) against a victim who is neutral or linked to the other side of

the conflict. The body of treaty and customary law which provides the legal underpinnings

for the war crimes concept and which is referred to variously as the law of war, the law of

armed conflict, and IHL is quite voluminous.

WHAT ARE CRIMES AGAINST HUMANITY

century development and its first application in a criminal setting, precipitated by the

mistreatment by Germany and its allies of their own nationals or the nationals of their cobelligerents, is
in the post-World War II war crimes cases. In brief, under customary law, a

crime against humanity is: (a) one of a list of prohibited acts, (b) committed as part of a

widespread or systematic attack, (c) pursuant to or in furtherance of a state or

organizational policy, (d) directed against any civilian population, (e) with knowledge of

the attack. There is no requirement for the existence of an armed conflict. "Civilian" clearly

excludes combatants but it should otherwise be given a very broad definition, including, for

example, hospital patients and resistance fighters who have laid down their arms

(Prosecutor v. Tadić, Case No. IT 94-1-T (ICTY Trial Chamber Opinion and Judgment 7

May 1997, paras. 639-43). There is no treaty devoted exclusively to crimes against

humanity unless one regards genocide as an aggravated form of crime against humanity.

As the various treaty or statutory provisions related to crimes against humanity do not

explicitly refer to combat situations or to matters such as unlawful attacks or the use of

unlawful weapons, one might query whether crimes against humanity should be applied to

regulate what happens in combat. Until the creation of the ICTY, crimes against humanity

charges were used in instances where the civilian victim group had been under the control

of or in the hands of the group with which the perpetrator was linked. That is, such charges

were used where the victims were in camps, in occupied territory, or in the national

territory of the state or organization supporting or initiating the policy of attacking the

civilian victim group. There is no necessary reason why this should be so. If the most
significant elements of crimes against humanity are the widespread or systematic

commission of acts directed against a civilian population, such acts can be committed at a

distance as well as at close quarters. If the object of a policy is to kill or injure civilians,

that policy can be implemented by rounding up and killing civilians in occupied territory or

by bombing or shelling a city still under the control of the opposing side. Genocide, which

might be regarded as the supreme crime against humanity, was directed at the Jewish

people at Auschwitz and at the other Nazi death camps. It could also be committed by use

of nuclear, bacteriological or chemical weapons directed against the people of Israel. The

ICTY–OTP has, as a matter of practice, tended to use both war crimes charges (under Art.

3 of our Statute) and crimes against humanity charges (under Art. 5 of our Statute) to

penalize the same course of conduct. Most of our cases have an underlying aspect of

persecution just as most of the cases before our sister tribunal, the ICTR, involve genocide.

For this reason, it is particularly important for us to determine the relationship between

persecution charges and combat related charges such as unlawful attacks. If the ICC–OTP

does decide to prosecute for combat crimes, you may well find yourselves facing similar

problems, particularly if many of the situations brought before the ICC have a persecutory

aspect.

DIVERGENCE
(1) APPUCABILITY

The major distention between wars and crimes against humanity are the Scope of Applicability to War
crimes Article 8 of the Rome Statute makes it very clear that it applies in International armed conflict
and also appear to apply in two types of internal Conflicts, (1) a common Article 3 Conflict ART 8(2) C)
8(5) and (up an additional Protocol III against Humanity, Moreover IS different because Stern because
too many May Shows That Crimes against human ty can occur during either lease time or armed
conflicts.

2) SPECIFIC ACTS AND PROTECTED PERSON

War crimes encompasses a detailed related to this Cantal prisoner of hard and use of methods and
means of Warfare. As clearly Seen in Article 8 of the Rome Statute it doesn't male provision for Things
like crime of Apartheid choice only Article Seven 7 covers. tor crimes as seen in Article 7 against
humanity as see to civilian focuses on acts populations with a particular emphasis on system and wide
spread attacks.

CONVERGENCE
1) ENFORCEABILITY AND ORIGIN

War crimes and crimes against humanity both derive their origin from the Rome Statute, pursuant to
Article 5 r of the statute both war crimes and Crimes against humanity are punished of crimes in the
International Criminal Court define of each Rome statute specifically ARTICLE 8 and Seven (7).

2) PROTECTION OF HUMAN RIGHT

Ultimately when we read the provisions of both the war crimes and crimes against provided for in
Article 8 and 7 of the Rome statute we will see that the move conation of tuned gross violation of
fundamental human right of the people and their dignity as we see the protect people from MURDER,
TORTURE AKING OF HOSTAGES ETC: All. These shows the Ultimate goal of the international Criminal -
court to protect Human right and dignity.

3) ACCOUNTABILITY AND INDIVIDUAL CRIMINAL RESPONSIBILITY

Part five (5) of the Rome Statute makes provision for investigation and prosecution. As seen in this part
from Articles 53 to 61 shows how perpetrators of both war crimes and crimes against humanity can be
held individually criminal responsibility. The accountability extends to both military leaders and civilian
supervisors who ordered or commit or fail to prevent such crimes.

OVERLAP IN CERTAIN ACTS

When we look at both Articles 7 and 8 of the Rome Statute we see an overlap of certain acts such as
Torture, Murder, and sexual violence.

REFERENCES

W. J. Fenrick 1“Crimes in combat: the relationship between crimes against humanity and war
crimes” 5 March 2004 The Hague.

INTERNATIONAL HUMANITARIAN LAW. Emily Crawford and Alison Pert.