1. Introduction
Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), international humanitarian law (IHL) has been the subject of a progressive, seemingly irreversible ‘criminalisation’.Footnote 1 The Geneva Conventions of 1949, as well as Additional Protocol I of 1977 (AP I), only envisaged individual criminal responsibility for those ‘grave breaches’ expressly listed in the respective texts. Violations of IHL other than grave breaches were left to the responsibility of contracting states, which were merely required to ‘take measures’ necessary for their suppression. In 1993, however, the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute) complemented the catalogue of ‘grave breaches’ with the category of ‘violations of the laws or customs of war’ as crimes giving rise to individual criminal responsibility in international law.Footnote 2 The Statute of the International Criminal Tribunal for Rwanda (ICTR), those of mixed tribunals and eventually the Statute of the International Criminal Court (ICC) have progressively encompassed more extended lists of crimes. At the same time, international criminal law (ICL) has emerged as a new and discrete branch of public international law, to include those rules the violation of which will give rise to individual criminal responsibility as well as regulating proceedings before international criminal courts. A considerable part of substantive ICL – that is, the rules indicating which acts are prohibited (actus reus) – originates in IHL. As a consequence, international jurisprudence has delved into the IHL rules, including those on the conduct of hostilities, thus contributing to their assessment and interpretation.
The book under review is the outcome of a joint research project undertaken by the Italian universities of Milan, Bari, Florence, Trento and Turin.Footnote 3 It presents a deep and thoughtful analysis of the most critical issues that have arisen before international and domestic criminal tribunals in dealing with crimes related to the conduct of hostilities. In addition, it takes into consideration non-hostilities contexts such as occupation and detention, as well as borderline situations (terrorism, arms trade) and procedural matters (investigation). Since the authors focus on the main features of ICL, many chapters have a homologous structure: after explaining the nature and scope of existing (customary and treaty) rules the violation of which gives rise to individual criminal responsibility, they analyse the relevant jurisprudential approach and the requirements to establish actus reus and mens rea for the offence charged.
2. Parts I & II: Setting the Legal Framework and Violations of the Principles of Distinction, Proportionality and Precaution
The first part of the book deals with general issues such as the progressive criminalisation of IHL violations,Footnote 4 the practical problems concerning the prosecution of violations of IHL rules on the conduct of hostilitiesFootnote 5 and the interplay between ICL, IHL and human rights law.Footnote 6 The issues related to the conduct of hostilities are then addressed in Parts II to IV (Chapters 4–13).Footnote 7 This is the core of the research, which apparently contradicts Gaeta's contention about the paucity of cases regarding serious violations of the rules on the conduct of hostilities.Footnote 8 In fact, when judging persons accused of war crimes, international criminal tribunals – and particularly the ICTY – have repeatedly faced the most challenging aspects of the conduct of hostilities, in both international and non-international armed conflict. Not all judgments, however, are equally enlightening.
The ‘diversification and fragmentation’ of ICLFootnote 9 are mirrored in Part II, in which violations of the principles of distinction, proportionality and precaution are discussed from the perspective of individual criminal responsibility. Clearly, the actus reus requirements are of special interest for the interpretation and development of IHL; in this respect the rules relating to the protection of civilians from attack as well as the notion of indiscriminate attacks have been repeatedly examined and suitably clarified by the ICTY.Footnote 10 Nevertheless, as Francesco Moneta demonstrates, the meaning of strictly related concepts such as the ‘concrete and direct military advantage’ offered by a military objective, and ‘all feasible precautions’ minimising collateral damage, have barely been touched upon.Footnote 11 Similarly, as Marco Pedrazzi remarks, the contribution of the relevant case law to the criminalisation of the use of human shields is rather limited, not to say ambiguous.Footnote 12
Compared with the post-Second World War cases, the ICTY did not achieve substantial progress in dealing with the crime of destruction of property not justified by military necessityFootnote 13 and this topic has not been specifically explored in the book, except from the standpoint of attacks against cultural property. In this respect, Andrea Carcano remarks on a conservative trend of ICL while normative development of IHL in the field has been significant.Footnote 14 Since the ICTY Statute does not refer to the concept of cultural property, however, the contribution of its case law to the protection of cultural property – which the author aptly reviews – certainly remains considerable.
A further concept that has not found a general definition in the case law of international criminal tribunals is that of direct participation in hostilities, which remains highly controversial despite efforts by scholars to elaborate upon standards to determine its content.Footnote 15 In fact, international criminal tribunals have adopted case-by-case interpretations offering several examples of acts that represent direct (active) participation, but limited general criteria.Footnote 16
3. Part III: Violations of the Rules Protecting Particular Categories of Persons
The jurisprudence of international criminal tribunals has had a considerable impact on the interpretation and development of rules to protect particular categories of persons during armed conflict. Three groups have been selected and examined by the authors of the book under review: child soldiers,Footnote 17 victims of sexual violenceFootnote 18 and peacekeepers.Footnote 19 The most interesting aspects of the related judgmentsFootnote 20 are the blending of the violations involved (to which Ludovica Poli draws attention at p 146) and the increasingly human rights-oriented interpretation by the courts (as Alberto Oddenino points out at p 134). This is apparent in cases concerning attacks against peacekeepers, who are protected by the 1994 Safety ConventionFootnote 21 (which is not an IHL instrument) except while engaged as combatants in enforcement operations, when IHL (as codified by the UNSG's Bulletin of 1999) is intended to apply. Given the blurred distinction between peacekeeping and peace enforcement, the first cases decided by international criminal courts on that issueFootnote 22 have so far left many questions unanswered (a conclusion reached by Andrea Spagnolo at p 170).
In ICL every actus reus has a corresponding mens rea element.Footnote 23 The international criminal jurisprudence has dealt extensively with this complex notion, which the different authors consider in the context of their respective chapters. In particular, Francesco Moneta (at pp 65–66) and Marco Pedrazzi (at pp 107–08) delve into the kind of intent that is required for the crimes of attacking cultural property and using human shields. Their in-depth analysis demonstrates why the concept of mens rea is central to the attribution of individual criminal responsibility for violations of the rules on the conduct of hostilities.Footnote 24
Although grounds for excluding liability are touched upon briefly by some authors, specific discussion on excuses or justifications that may be relevant to the conduct of hostilities (such as superior orders, mistake of law or fact, and military necessity) is not included in the book. This detracts nothing from the research, which provides valuable insights and is based on a methodical and thorough approach.
4. Part IV: Violation of the Rules on Means of Warfare
The legality of weapons (that is, the means of warfare) cannot be appraised in isolation from the way in which they are used (that is, without taking into consideration the associated method of warfare).Footnote 25 This relationship, which clearly emerged in some cases decided by the ICTY,Footnote 26 could have been better highlighted in Part IV of the book, comprising Chapters 10 to 13.Footnote 27 Treaties that establish prohibitions or limitations on the use of specific weapons do not typically include rules on individual responsibility; instead, the criminalisation of the prohibited conduct is an obligation imposed on states parties. Thus, in addition to judgments by the ICTY, ICTR, the Special Court for Sierra Leone (SCSL) and the Iraqi Special Tribunal, recent case law includes some decisions of national courts. Despite some overlap and repetition, contributions in Part IV give a thorough review of the existing international and national jurisprudence.Footnote 28 In particular, the broad scope of application of the Biological Weapons Convention of 1972Footnote 29 and of the Chemical Weapons Convention of 1993Footnote 30 have allowed national courts to expound upon notions such as complicity, aiding and abetting, as well as the actus reus and the mental element of crimes. The increasing role of domestic tribunals in the prosecution of crimes related to the use of prohibited weapons is indeed a positive development, although it carries the risk of ‘boundless’ interpretations by national prosecutors.Footnote 31
5. Part V: The Special Case of Terrorism in Armed Conflict
At a time when armed conflict and terrorism are constantly conflated in the public domain, it is no wonder that Part V of the book under review is devoted to the ‘special case’ of terrorism in armed conflict. In IHL treaties a specific prohibition of spreading terror among the civilian population in the conduct of hostilities is established in identical terms by Article 51(2) of AP I and Article 13(2) of AP II,Footnote 32 while the term terrorism is used to qualify prohibited acts against civilians in the hands of an adverse party (Article 33 of Geneva Convention IV and Article 4(2)(d) of AP II). Terrorism, however, is also commonly referred to as the action of non-state armed groups, as well as to violent acts committed in peacetime. This does not help to clarify the matter.
Julinda BeqirajFootnote 33 accurately discusses the objective components and the mental element of terror against the civilian population, pointing out (with some concern) a trend of international criminal tribunals to progressively broaden the scope of the offence, to include threats and acts of violence not involving death or serious injury (p 275). For its part, the application of IHL by national jurisdictions in cases involving terrorism has been uneven. Marco PertileFootnote 34 argues that reference to terrorism in the judgments of the Israeli Supreme Court served both the purpose of assessing the proportionality of counter-terrorism measures, and proving the existence of an armed conflict in the occupied territories (pp 281–86). The US Supreme Court decided to apply Common Article 3, as a matter of customary law, to acts related to the ‘war on terror’ in Iraq, but it refrained from legally qualifying the armed conflict between the US and Al Quaeda under IHL (pp 305–07). Among other national judicial decisions reviewed by Antonino AlìFootnote 35 a judgment of the Italian Court of Cassation sentenced a person accused of complicity with terrorist purposes, who had previously been acquitted on the ground that acts of guerrilla warfare perpetrated in armed conflict cannot be prosecuted unless violations of IHL have occurred (pp 300–03).
Since, in principle, the task of qualifying terror or terrorism (as a war crime, a crime against humanity or a ‘discrete’ crime) belongs to national jurisdictions, inconsistencies among the decisions of domestic courts are not surprising. Giuseppe NesiFootnote 36 argues that a consensus is emerging on a commonly shared notion of terrorism (in peacetime) as defined in Article 2 of the draft UN comprehensive convention against terrorism, substantiating the actual characteristics of actus reus (pp 251–52). Nevertheless, the relationship between the activities considered terrorist acts under the draft convention and acts committed in armed conflict remains one of the points of disagreement that have impeded the conclusion of negotiations so far.
6. Part VI: Investigations and Fact Finding
Investigation and evidence collection constitute one of the most demanding aspects of criminal procedure based on rules of the conduct of hostilities. These activities are undertaken either during the period of fighting, which makes them harsh and unpredictable, or after the cessation of active hostilities by which time evidence may have been seriously compromised. International prosecutors rely heavily on state cooperation, the absence of which may impede contact with victims and witnesses, as well as objective assessment of the facts. For their part, human rights bodies undertake examinations into allegations of human rights violations in order to establish state responsibility rather than individual criminal responsibility; in those cases, the standard of proof is less strict than that in criminal cases. Nevertheless, international prosecutors may have to rely on preceding fact-finding by human rights bodies or even by NGOs to support their investigation.
In Part VI of the book under review, Stephen WilkinsonFootnote 37 highlights the problems faced by investigators of international criminal cases related to the conduct of hostilities, especially as regards the factual circumstances that amount to an IHL violation and the quantitative assessment of damages (pp 313–14 and 317–19). This author adopts quite a broad concept of investigation, embracing the determination of the nature of the conflict as well as elements that are rather within the competence of the court, such as the applicable rules of IHL and the assessment of proportionality.
Micaela FrulliFootnote 38 and Simone VezzaniFootnote 39 give valuable insights into the difficult interplay between investigations in the context of international criminal law and investigations of human rights violations by fact-finding commissions. The advantage of human rights institutions is that, as a rule, they adjudicate cases that have already been dealt with by domestic courts, although the lower standard of proof required to establish state responsibility is generally insufficient to prove individual culpability. Nevertheless, the results of fact finding by human rights bodies may put pressure on the responsible state to initiate and carry out a criminal investigation (Vezzani, pp 361–64). Frulli (p 342) remarks that fact-finding missions are becoming competitive and suggests that the Human Rights Council is not the appropriate body to investigate IHL violations, while missions established by the UN Security Council may have better access to the territory of the states involved and perform their mandated functions more effectively (p 347). In this regard, it is deeply regrettable that the international community continues to miss the opportunity to make the only existing specialised IHL fact-finding body – the Commission established pursuant to AP I Article 90 – effective.
7. Concluding Remarks
IHL has been dissected and interpreted through judicial decisions in criminal cases over the last twenty years, as never before. In this respect, War Crimes and the Conduct of Hostilities gives its readers – scholars, prosecutors and judges, as well as military officers responsible for training troops – plenty of excellent material to peruse and to work with. The risk of fragmentation in international case law about which Fausto Pocar worries in the first chapter of the book (at p 18) is inherent in the present international criminal law system of tribunals and in the ongoing process of developing ICL. Whether or not this contributes to the implementation of IHL remains an open question. On the one hand, punishing those responsible for IHL violations may dissuade potential perpetrators from exceeding the limits the law places on the methods and means of warfare. On the other hand, the strict requirements for establishing individual criminal responsibility often pose hurdles for prosecutors and judges, so that even a clear violation may sometimes go unpunished. Last, but not least, focusing on the culpability of individuals risks displacing attention from the international responsibility of states and groups (which remain the principal actors in armed conflicts) if not from the laws of war as a whole.Footnote 40 For these reasons the relationship between IHL and ICL certainly deserves further reflection and research by scholars.
