New Technologies in International Law / Tymofeyeva, Crhák et al.

theoretical method, which indicates the position of doctrine and the content of legally non-binding documents. 1. War crimes: introduction The development of legal procedures to bring an individual to responsibility for war crimes has been a long and often complicated process. The landmark in the development of responsibility for war crimes was the period after World War II (WW II) when the victorious powers concluded the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal (IMT Charter). 572 The Agreement established the International Military Tribunal in Nuremberg (IMT) to prosecute the worst Nazi criminals for crimes against peace, war crimes, and crimes against humanity. 573 The IMT Charter defined war crimes as violations of the laws and customs of war, then listing them by example, such as murder and deportation for forced labor (see Article 6(b) of the IMT Charter). Another important period for the development of responsibility for war crimes was the 1990s. The experience of two bloody armed conflicts (in Rwanda and the former Yugoslavia) led to the establishment of international criminal tribunals to prosecute those responsible for crimes committed during these conflicts. 574 The International Criminal Tribunal for the former Yugoslavia (ICTY) did not include a “single, collective” war crime in its statute. Still, it referred to grave breaches of the Geneva Conventions of 1949 and violations of the laws and customs of war. 575 The former has a closed catalog, including willful killing, torture, or inhuman treatment (see Article 2 of the ICTY Statute). Violations of the laws and customs of war are not limited but only listed by way of examples, such as employment of poisonous weapons or other weapons calculated to cause unnecessary suffering (see Article 3 of the ICTY Statute). Five years after establishing the ICTY, the Statute of the ICC was signed. 576 It is the first permanent international criminal court in history to try genocide, crimes against humanity, war crimes, and crime of aggression. 1.1 War crimes: definition The ICC Statute defined war crimes as grave breaches of the 1949 Geneva Conventions by enumerating, for example wilful killing, wilfully causing great suffering, or serious injury to body or health (see Article 8(2)(a) of the ICC Statute), but also other serious violations of the laws and customs applicable in armed conflict (see Article 8(2)(b) and 8(2)(e) of the ICC Statute). The latter finds its application both in an armed conflict of an international character (IAC) and an armed conflict of 572 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, 8 August 1945, 82 UNTS 251. 573 Cassese A, Acquaviva G, Fan M, Whiting A, International Criminal Law: Cases & Commentary (OUP, 2013), pp. 27–29. 574 Bassiouni MC, Introduction to International Criminal Law (2nd edn. Martinus Nijhoff, 2013), p. 1070. 575 UNSC, Res. 827 ‘Statue of the International Criminal Tribunal for the Former Yugoslavia’, annex, UN Doc. S/RES/827 (1993). 576 Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90.

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