The preparatory committee’s “Definition of crimes”—War crimes

U.S. Dep’t of Army,Field Manual FM 27–10, The Law of Land Warfare 178, ¶ 499 (1956);

Jordan J. Paust et al.,International Criminal Law 24, 84–86, 744, 761, 967, 984–94 (1996); 3Commentary, Geneva Convention Relative to the Treatment of Prisoners of War 421 (Jean Pictet ed., 1960) ("The International Law Commission has defined war crimes as: ‘Acts in violation of the laws or customs of war.’"); 4Commentary, Geneva Convention Relative to the Protection of Civilian Persons in Time of War 583 (Jean Pictet ed., 1958).

Report of the Working Group on the Definition of Crimes, U.N. Doc. A/AC.249/1997/L.5 (Mar. 12, 1997), Annex I, at 3 (introductory paragraph on war crimes) [hereinafterMarch Report].

Report of the Working Group on the Definition of Crimes, U.N. Doc. A/AC.249/1997/WG.1/CRP.9 (Dec. 12, 1997), at 11 (options I, II) [hereinafterDecember Report]. But see id. at 11 (option III—"No provision on threshold."). I prefer that there be no such limiting "threshold," but discretion in the prosecutor. It is also worth emphasizing that such limiting phrases are not appropriate definitional elements with respect to "grave breaches" of Geneva law, genocide, or crimes against humanity. Paust et al.,supra note 1, at 19, 1030–31, 1035, 1037–38, 1054–63, 1075–82, 1109–11.

Cf. December Report, supra note 3, at 1, art. Y ("Without prejudice to the application of the provisions of this Statute, nothing in this Part of the Statute shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law."). This savings clause is highly preferable.

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 8, 1977, arts. 75(7)(b), 85–86, 88, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978) [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts,adopted June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978).

Paust et al.,supra note 1, at 981.

March Report, supra note 2, at 4; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,adopted Aug. 12, 1949, art. 50, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea,adopted Aug. 12, 1949, art. 51, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War,adopted Aug. 12, 1949, art. 130, 75 U.N.T.S. 13; Geneva Convention Relative to the Protection of Civilian Persons in Time of War,adopted Aug. 12, 1949, art. 147, 75 U.N.T.S. 287.

See Paust et al.,supra note 1, at 1020–21 and references cited therein.

March Report, supra note 2, § B.

Id. at 4.

Id. at 5–6.

Id. at 6.

Id.

Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, art. 23(e), 36 Stat. 2277, T.S. 539, 2 Malloy 2269.

E.g., U.S. Dep’t of Army,Pamphlet 27-1, Treaties Concerning Land Warfare at i (1956) ("the only official text of the Hague Conventions of 18 October 1907 is the French text which must be consulted and accepted as controlling"); Paust et al.,supra note 1, at 1000.

See also Paust et al.,supra note 1, at 998, 1000; Jordan J. Paust,Does Your Police Force Use Illegal Weapons? A Configurative Approach to Decision Integrating International and Domestic Law, 18 Harv. Int’l L.J. 19, 30 n.43 (1977);

Samoa, Marshall Islands, and Solomon Islands, Aide-Mémoire, Laws of War: Why We Prefer Option II of Draft Paragraph B(o) Concerning Methods of Warfare That Cause Unnecessary Suffering or Are Inherently Indiscriminate 1 & n.1 (Dec. 1997) (citing International Committee of the Red Cross, Comments on Informal Working Paper on War Crimes of 31 October 1997, at 3 (Dec. 2, 1997)).

March Report, supra note 2, at 7;see also December Report, supra note 3, at 2–3 (art. 20-C-B(b), 20-C-B(bbis)), discussedinfra Part B.

March Report, supra note 2, at 8. This problem was generally taken care of in the December report with respect to noninternational conflicts.December Report, supra note 3, at 8–9 (art. 20-C-C, 20-C-D(a), option I).

Concerning "civilians" who lose such protection, see,e.g., Michael Bothe et al.,New Rules for victims of Armed Conflicts 301–04 (1982);see also sources citedinfra note 20.

Paust et al.,supra note 1, at 376, 1178; Jordan J. Paust,An Introduction to and Commentary on Terrorism and the Law, 19 Conn. L. Rev. 697, 744 & n. 183 (1987);see also supra note 19.

Responsibilities Commission of the Paris Peace Conference, List of War Crimes (1919) (crimes 19, deliberate bombardment of undefended places, and 23, deliberate bombardment of hospitals),reprinted in Paust et al.,supra note 1, at 24–25 [hereinafter 1919 List ].

See also Geneva Convention I,supra note 7, art. 50; Geneva Convention II,supra note 7, art. 51.

Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, Apr. 24, 1863, arts. 16, 44,reprinted in Paust et al.,supra note 1, at 1011–12 [hereinafter Lieber Code].

1919 List,supra note 21, crimes 18 ("[w]anton devastation and destruction of property") and 20 ("[w]anton destruction of religious, charitable, educational and historic buildings and monuments"),reprinted in Paust et al.,supra note 1, at 24.

Report of Justice Robert H. Jackson to the President of the United States, released June 7, 1945,reprinted in Paust et al.,supra note 1, at 1027.

11Trials of War Criminals 757 (1948),reprinted in Paust et al.,supra note 1, at 1004, 1007.

Report of the International Law Commission on Its Second Session, 5 June–29 July 1950, 5 U.N. GAOR, Supp. No. 12, at 11–14, ¶ 99, U.N. Doc. A/1316 (1950),reprinted in Paust et al.,supra note 1, at 985–86.

Reprinted in Paust et al.,supra note 1, at 743, 744. This statute was adopted by Bangladesh soon after independence to prosecute war crimes, genocide, crimes against humanity, and "any other crimes under international law" (art. 3 (2)) committed "in the territory of Bangladesh, whether before or after the commencement of this Act" (art. 3 (1)).

Prosecutor v. Karadzic, Case No. IT-95-5-I (Int’l Trib. for Former Yugo., Indictment, July 24, 1995), ¶¶ 27, 41, 44,reprinted in Paust et al.,supra note 1, at 61, 66, 70 [hereinafter Indictment of Karadzic and Mladic].

Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704 & Add.1 (1993), Annex, arts. 2(d), 3(b),reprinted in Paust et al.,supra note 1, at 772–73 [hereinafterReport of the Secretary-General].

U.N. Doc. A/CONF.95/15 (1980),reprinted in 19 I.L.M. 1523;see also Jordan J. Paust,Controlling Prohibited Weapons and the Illegal Use of Permitted Weapons, 28 McGill L.J. 608, 617 & n.43 (1983).

See generally Paust et al.,supra note 1, at 22–23, 32–72passim.

December Report, supra note 3, at 4.

Id. at 7.

Id. at 9.

Id.

Id. at 2 (art. 20-C-B(a), option I), 8 (art. 20-C-D(a), option I).

Id. at 7 (art. 20-C-B(s)), 10 (art. 20-C-D(1), option II, first portion).

E.g., S.C. Res. 787, U.N. SCOR, 47th Year, 1992 S.C. Res. & Dec. at 29, U.N. Doc. S/INF/48 (1992) (condemning as violations of humanitarian law the deliberate impeding of the delivery of food and medical supplies to the civilian population in Bosnia-Herzegovina); S.C. Res. 771, U.N. SCOR, 47th Year, 1992 S.C. Res. & Dec. at 25, U.N. Doc. S/INF/48 (1992) (same); S.C. Res. 794, U.N. SCOR, 47th Year, 1992 S.C. Res. & Dec. at 63, U.N. Doc. S/INF/48 (1992) ("Strongly condemns all violations of international humanitarian law occurring in Somalia, including in particular the deliberate impeding of the delivery of food and medical supplies essential for the survival of the civilian population ….");see also Declaration on the Protection of Women and Children in Emergency and Armed Conflict, G.A. Res. 3318 (XXIX), U.N. GAOR, 29th Sess., Supp. No. 31, at 146, ¶ 6, U.N. Doc. A/9631 (1974) ("women and children belonging to the civilian population … shall not be deprived of shelter, food, medical aid or other inalienable rights");Report of the Secretary-General, supra note 30, ¶ 6 (violations of humanitarian law include "impeding the delivery of food and medical supplies to the civilian population"),reprinted in Paust et al.,supra note 1, at 760; Indictment of Karadzic and Mladic,supra note 29, ¶ 22 (regarding inadequate food and medical care for civilians detained in camps, including women, children, and elderly persons),reprinted in Paust et al.,supra, at 65; Donald E. Buckingham,A Recipe for Change: Towards an Integrated Approach to Food under International Law, 6 Pace Int’l L. Rev. 285 (1994);

Jordan J. Paust,Applicability of International Criminal Laws to Events in the Former Yugoslavia, 9 Am. U. J. Int’l L. & Pol’y 499, 516–17 & n.62 (1994).

December Report, supra note 3, at 7 (art. 20-C-B(s)), 10 (art. 20-C-D(l), option II).

E.g., 1919 List,supra note 21, crime 4; Paust et al.,supra note 1, at 24, 1022.

See also Report of the Secretary-General, supra note 30, Annex, art. 2(g) ("unlawful deportation or transfer or unlawful confinement of a civilian"),reprinted in Paust et al.,supra note 1, at 772.

The question is also presented: "settlers" of any nationality or loyalty, including "settlers" of the nationality of the occupied persons?

E.g., Paust et al.,supra note 1, at 969–71, 975–76, 982–83; U.S. Dep’t of the Army,supra note 1, at 9, ¶ 11a.

Seesupra text accompanying note 12.

Seesupra text accompanying notes 13–17.

E.g., Lieber Code,supra note 23, arts. 16, 70,reprinted in Paust et al.,supra note 1, at 1011–13; St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes’ Weight, Dec. 11, 1868, 138 Consol. T.S. 297 ("employment"),reprinted in Paust et al.,supra, at 997; 1919 List,supra note 21, crime 32,reprinted in Paust et al.,supra, at 25;see also id. crime 27 (regarding "use" of prohibited bullets),reprinted in Paust et al.,supra, at 25; Hague Convention No. IV,supra note 14, Annex, art. 23(a) ("employ").

Cf. "Among others, the following types of attacks are to be considered as indiscriminate," Protocol I,supra note 5, art. 51(5), which operates as a savings clause;see also the phrase "such as but not limited to,"December Report, supra note 3, at 6 (art. 20-C-B(o), option IV(o), second portion).