War crimes are not a simple concept. The term carries with it a heavy weight of legal and emotional baggage, implying that war is already bad enough that anyone who goes beyond the limit even in dangerous circumstances is particularly depraved and vile. It also evokes what logicians call prejudicial language, insinuating that an act qualifies as a war crime only when a legitimate governing authority (like an international tribunal, military commission or civilian court) accuses a service member of doing it.
Historically, the terms “war crimes” and “crimes against humanity” were applied to a limited number of violations of international humanitarian law, most commonly to grave breaches of the 1949 Geneva Conventions. More recently, international courts, such as the ad hoc tribunals set up to prosecute war crimes in Yugoslavia and Rwanda, have adopted new definitions of war crimes that criminalize behavior such as torture, willful killing and widespread destruction or appropriation of property not justified by military necessity.
These crimes are typically committed in the context of an armed conflict, and their definitions differ depending on whether it is an international or non-international armed conflict. However, judges have found that, in addition to the provisions of the 1949 Geneva Conventions and their Additional Protocols, customary international law prohibits certain behavior and activities – such as starving civilians and depriving them of indispensable means of life – both during and outside of an international armed conflict.
Domestic courts are usually responsible for prosecuting perpetrators of war crimes, but this can be difficult during and in the aftermath of a conflict – the regime that committed them may be absent or destroyed, the judicial infrastructure might have been damaged by the conflict or the offending State might be unwilling to cooperate. In these situations, international, mixed and hybrid tribunals can prosecute war crimes on the basis of universal jurisdiction.
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