War, War Crimes and Crime against Peace

WAR

When a dispute between the states is not settled even by coercive means, they may resort
to war. It is an ultimate means of setting the dispute. By resolving a war state seek to impose
their will on each other.

Oppenheim Defines

War is a contention between 2 or more states, through their armed forces for the purpose
of overpowering each other.

Thus, war consists Four essential elements

• Firstly

War is a contention i.e a violent struggle through the application of armed force. It is
therefore different from aggression. Aggression, itself is not a war. It may lead to war
when it is answered by similarly hostile acts by the other state.

• Secondly

The contention must be between 2 or more states. This makes it differ from civil war when
two opposing parties within state struggle for the purpose of overpowering each other.

• Thirdly

War is a contention between states through their armed forces. This point distinguishes
combatants from Non-combatants. In the war, non - combatants are not made the object
of direct attack by the armed forces of the enemies, in view of its being a contest between
the armed forces.

• Fourth

The Fourth element of the definition reveals the purpose of war. The purpose is to
overpower each other. The purpose of war is not to be confused with the ends of war.

Intention of Contesting states

It is to be noted that whether a particular conflict is a war or not, depends more or less upon
the Aninus Belligerendi i.e. upon the Intention of the parties.
Declaration of War

Declaration of war by the state is evidence of a state of war with another state. The war is
deemed to have stated at this moment.

However, many wars have took place without any declaration.

1. South Korea was attacked by North Korea in 1950.

2. India was attacked by Pakistan without any formal declaration.

Effects of the outbreaks of War

1. Diplomatic Relations

On the outbreak of war, diplomatic relations between the Belligerents comes to end.
Diplomatic agents are recalled by the sending state. However, they are entitled to
diplomatic immunities throughout their journey, for leaving the country (Art. 4 of
Vienna convention, 1961)

2. Treaties

Different opinions of jurist regarding the effect of war over the treaties among
disputant countries –

One view is that treaties come to end with the outbreak of war between states.

Le-Louis case 1817.

Lord Stowell observed that, the treaties are punishable things and their obligation
comes to an end as soon as hostile start.

But other view In the present times, many significant changes have come in their
respect present practice of state shows that all the treaties of Belligerent states do not come
to end. Some treaties are completely terminated and some remain into
force and some are only suspended during the war time.

In Reality the effect of war on the treaties depends upon :-

1. Provisions of treaties.
2. Intention of parties.
3. Nature of treaty etc.

Example Treaties regarding extradition is suspended during the war time.

3. Trading and Intercourse in commerce

All trading and intercourse between the belligerent states are prohibited during the war.
It is well recognised principle of I.L. that treaties regarding the trading and intercourse
between the belligerent states stand terminated, at the outbreak of war.

4. Enemy Property

Up to 18 century; the practice of the states was to confiscate all enemy property found on
each other territories at the outbreak of war, whether they were private or public. However
now the practice has changed with respect to private and public property.

• Public property

A Belligerent state may confiscate movable property of the enemy lying on its own
territory. Thus funds, Ammunitions, Provisions and other valuable may be seized. The
purpose of seizure is to use movable property for military purpose or to freeze them so that
enemy may be prevented from using them in war.

In regard to immovable property, it may be temporarily taken but can't be permanently

seized after the outbreak of war.

• Private Property

Practices of state shows that it may be taken over for temporary period. After the war, the
fate of the property is decided according to the provision of peace concluded treaty if any
among the states.

5. Contracts

Effect of the outbreak of war on contract entered into by the subjects of the Belligerents is
a matter of rules of the Belligerent states. Thus, it is a matter concerning municipal Law
rather than International Law.

• Executory Contract

Those contracts made before the outbreak of war but not been completely performed. Such
contracts are abrogated with the outbreak of war.

• Executed Contracts

Executed contracts are those which are executed before the outbreak of war but some
obligations remain to be performed by either side.

Thus, if the goods have been sold and delivered by the alien enemy at a price before the
outbreak of war, and the price is due but not paid at the outbreak, the contract is an
executed contract.
The enforceability of such obligation are generally suspended until the state of war is
terminated.
 War Crimes and Crimes Against Peace

1. Introduction to War Crimes and Crimes Against Peace

 War Crimes and Crimes Against Peace (also known as "aggression") are two critical
key violations in international law, which deals with crimes and unlawful acts
committed during war (jus in bello) and the unlawful initiation of war (jus ad bellum).

 These crimes are primarily governed by international conventions, customary law,

and various treaties like the Geneva Conventions.

2. Definitions

 War Crimes: Refers to violations of laws and customs applicable in armed conflict,
which include the treatment of prisoners of war, civilians, and the wounded. These
crimes are outlined in conventions such as the Geneva Conventions and the Hague
Conventions.

 Crimes Against Peace: Also known as “aggression,” this crime is defined as the
planning, initiation, or waging of wars of aggression in violation of international law.
The crime against peace was first codified and prosecuted during the Nuremberg
Trials after World War II.

3. Key Legal Frameworks and Conventions

 Geneva Conventions (1949): Set international legal standards for humanitarian

treatment in war. Defines war crimes such as targeting civilians, using prohibited
weapons, and mistreating prisoners.

 Hague Conventions: Established laws regarding the conduct of war and treatment of
occupied territories.

 Charter of the United Nations (1945): Emphasizes the prohibition of aggression and
the maintenance of international peace and security.

 Rome Statute of the International Criminal Court (1998): Defines war crimes and
crimes against peace and grants the International Criminal Court (ICC) jurisdiction
over these crimes.
4. Types of War Crimes

 Grave Breaches: Serious violations such as willful killing, torture, and taking
hostages.

 Other War Crimes: Includes using forbidden weapons, attacking neutral sites, and
conscripting child soldiers.

 Crimes Against Humanity: Includes widespread and systematic acts against civilians,
such as genocide, enslavement, and apartheid.

5. Crimes Against Peace: Elements and Prosecution

 Planning and Aggression: Includes the intention and actions taken to prepare and
initiate wars of aggression.

 International Criminal Tribunal: Crimes against peace were prosecuted at the

Nuremberg Trials, where leaders responsible for World War II were held accountable
for initiating unjust wars.

 Modern-day Enforcement: The ICC and International Court of Justice (ICJ) can
prosecute crimes of aggression if they meet strict criteria, including state consent
and jurisdictional prerequisites.

6. Notable Case Studies

 Nuremberg Trials (1945-1946): The landmark trial where Nazi leaders were tried for
crimes against peace, war crimes, and crimes against humanity. It set the precedent
for holding state leaders accountable for unlawful wars.

 Yugoslavia and Rwanda Tribunals: These ad hoc tribunals focused on war crimes and
crimes against humanity during conflicts in Yugoslavia and Rwanda, setting further
precedents.

 International Criminal Court (ICC): Established in 2002, the ICC tries individuals for
war crimes and crimes against humanity but has limited jurisdiction for crimes
against peace due to state sovereignty issues.

7. Challenges in Prosecution

 Jurisdictional Limitations: Many nations have not ratified the Rome Statute, limiting
the ICC’s authority.

 Political Issues: Enforcement can be politically complex, as many powerful nations

are hesitant to submit to international authority over war and peace.
 Evidence Gathering: Collecting evidence during armed conflicts is difficult, especially
when witnesses are intimidated or face retaliation.

8. Conclusion

 War crimes and crimes against peace are integral to maintaining international order,
human rights, and the rule of law in conflict situations. The global community
continues to strengthen international laws to deter and prosecute such crimes.

 Modern international law aims to hold individuals, including heads of state,

accountable to prevent atrocities and ensure justice for victims of war crimes and
crimes against peace.