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International Criminal Court in the Hague, the Netherlands Shutterstock/STRINGER Image

All's fair in love and war? Not when it comes to war crimes

Professor of international criminal justice, Dr Niamh Howlin, says countries and individuals can be held responsible for the things they do during war time.

REPORTS HAVE EMERGED recently of another suspected chemical attack in Syria.

Dozens of people, including children, are said to have required medical attention as a result of chlorine gas inhalation.

Chlorine is a common industrial chemical. In low doses, it can damage lungs and cause severe breathing difficulties, nausea, vomiting and other symptoms. In high doses, it can be fatal.

Its use in weapons is explicitly banned by the Chemical Weapons Convention (CWC), an international treaty to which Syria signed up in 2013.

The use of chemical weapons is also specifically prohibited by the Geneva Conventions, the Hague Conventions, the Statute of the International Criminal Court (ICC) and customary international humanitarian law.

The existence of an armed conflict does not amount to a free pass for those who engage in violent activities. War does not create a legal vacuum, and individuals can be held accountable for their actions.

What counts as a war crime?

A war crime is a serious violation of the laws and customs applicable in armed conflict, known as international humanitarian law. The law is concerned with how that conflict is conducted, and applies regardless of the reasons behind the conflict, even if they are just or in self-defence.

Most war crimes are perpetrated against civilians, including those detained in internment or concentration camps. They include sexual violence, torture, biological experimentation, and excessive destruction and appropriation of property.

Poisoning water supplies, burning crops, and causing long-term and severe environmental damage could all be classed as war crimes as well.

While there is no single authoritative list of recognised war crimes, the ICC statute covers 50 categories of war crime, including:

  • Torture and inhuman treatment
  • Willfully causing great suffering or serious injury
  • Unlawful killing
  • Intentionally directing acts against the civilian population
  • Using asphyxiating, poisonous or other gases
  • Using poison or poisoned weapons

Development of war crimes

The idea of war crimes evolved in the late 19th century, particularly in the aftermath of the American Civil War where soldiers had burned down whole towns, and engaged in murderous raids, torture and scalpings.

The Hague Conventions of 1899 and 1907, along with the Geneva Conventions, attempted to set out the rules of war and the minimum standards for the treatment of persons involved in a conflict.

For a long time, these rules were mainly concerned with the actions of states and not individuals, although some low-ranking servicemen might be accused of misconduct during an international conflict.

In the aftermath of the horrors of World War II, the Nuremberg Trials marked a significant development in this area. For the first time, a range of individuals, from high-ranking officers to private citizens, could be made answerable for gross misconduct during armed conflict.

International criminal law (ICL) continued to develop over the 20th century as a relatively new branch of law. The rules of ICL either authorise or require states to prosecute and punish certain conduct in their national courts.

How are war crimes prosecuted

The ICC has jurisdiction over individuals who commit war crimes, crimes against humanity and genocide, and can impose sentences of up to life imprisonment.

However, because Syria is not a party to the ICC, the ICC prosecutor cannot automatically initiate a prosecution. It requires a resolution by the UN Security Council to give the ICC jurisdiction.

The likelihood of this happening is unclear, as permanent members of the Council, including Russia, China and the United States, have the power to veto such a resolution.

The Security Council has a track record of failing to act on other occasions when there was evidence of serious international crimes being committed and has referred situations to the ICC only twice: Darfur in 2005 and Libya in 2011.

The ICC’s role, although important and highly visible in these situations, is generally limited to prosecuting just a few key high-ranking individuals. The vast majority of prosecutions for violations of ICL take place at national level, in national courts or special hybrid courts.

Universal jurisdiction

There is also the possibility of states exercising universal jurisdiction to prosecute individuals for these offences.

The principle of universal jurisdiction is that certain crimes are so serious and of such concern to the international community as a whole, that they can be prosecuted in any state, regardless of where the crimes took place or who committed them.

This is not without controversy and, in practice, most states require some jurisdictional link, such as one of their nationals being either a victim or a perpetrator.

It is clear that individuals on all sides of the current Syrian conflict are potentially leaving themselves open to war crimes prosecutions.

However, while legal frameworks and mechanisms are clearly in place to tackle these sorts of grave offences, political will is essential for any action to be taken.

Dr. Niamh Howlin is a lecturer/assistant professor in UCD, where she teaches International Criminal Justice.

Read: Warplanes have dropped suspected chlorine bombs on a crowded neighbourhood in Aleppo

Read: Radovan Karadzic found guilty of genocide and jailed for 40 years

 

 

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    Mute Jimmy Chickens
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    May 15th 2022, 7:49 AM

    Shocking. Guns shouldn’t be so freely available.

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    Mute Nora McElhinney
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    May 15th 2022, 9:25 AM

    @Jimmy Chickens: will they ever learn????? Just gather around the campfire, light a few candles, sing a few verses of kumbya and wait for the next armed lunatic….. so sad RIP

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    Mute Leadóg
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    May 15th 2022, 8:04 AM

    Nothing changed after Sandy Hook. I don’t wish harm on anyone but maybe it’s going to take the death of a top NRA person or an NRA supporting politician in a mass shooting for things to change.

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    Mute Ciaran
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    May 15th 2022, 11:37 AM

    @Leadóg: true but they all carry guns with them so it’s unlikely they themselves would be a victim.

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    Mute JPM
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    May 15th 2022, 2:49 PM

    @Leadóg: exactly. When nothing happened after Sandy Hook it’ll never happen

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    Mute Colm Coughlan
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    May 15th 2022, 7:58 AM

    It’s all okay though, President Biden is praying for the victims and their families.

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    Mute Jason Ebbs
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    May 15th 2022, 8:01 AM

    @Colm Coughlan: not just Biden, that’s all any of them did.

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    Mute pkunzip doom2.zip
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    May 15th 2022, 8:29 AM

    @Colm Coughlan: and his wife

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    Mute Michael Byrne
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    May 15th 2022, 9:42 AM

    @Colm Coughlan: Just like Trump did for the countless number of mass shootings that happened whilst he was in office. It’s quite clear the problem lies in the easy access to guns and the fear mongering and hate news that’s spread by OAN and Fox News…..

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    Mute Paul Furey
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    May 15th 2022, 10:39 AM

    @Colm Coughlan: you do realise trump was far worse….even though he has recently repeated he is the best thing ever for Christianty. Biden may be sincere, but trump is always ever only playing his twisted little game.

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    Mute Tricia G ☘️
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    May 15th 2022, 11:38 AM

    @Colm Coughlan: At least when Biden says he’s praying for them you’d actually believe he is…..

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    Mute Dave O'Keeffe
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    May 15th 2022, 2:22 PM

    @David Bohane: fun fact: you’re not a criminal until your convicted so the number of criminals who’s bail they paid would actually be a small minority, so that’s two things you’re blowing out of proportion. Also, bail is not a crime.
    The system of policing in the states is diabolical and has over inflated budgets. The idea of defend the police wasn’t that there shouldn’t be police. That’s strike three

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    Mute David
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    May 15th 2022, 2:58 PM

    @David Bohane: if the far left didn’t vote for Biden do you think they would of voted for Trump instead lol

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    Mute Seamus Mac
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    May 15th 2022, 3:06 PM

    @Dave O’Keeffe: strange for the democrats to be bailing people out of jail no? Do the republicans engage in such practices as well?

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    Mute James Lough
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    May 15th 2022, 7:45 AM

    RIP. Senseless waste of life

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    Mute Teresa O'Halloran
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    May 15th 2022, 8:39 AM

    What a còward. Put the gun to his own neck but didn’t pull the trigger, yet he had no problem shooting thirteen innocent people. His parents have questions to answer for bringing this piece of ßhit into the world.

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    Mute lelookcoco
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    May 15th 2022, 8:52 AM

    @Teresa O’Halloran: His parents? Are you actually serious? So this guy is innocent because his parents are to blame? Engage your brain before making a comment.

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    Mute Jason Ebbs
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    May 15th 2022, 8:57 AM

    @Teresa O’Halloran: He’s 18, so an adult. This makes him responsible for his own actions and not his parents.

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    Mute Teresa O'Halloran
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    May 15th 2022, 9:09 AM

    @lelookcoco: I didn’t say he was innocent. But he has all the signs of a spoilt brat. We need to find out why these kids are doing this by examining their upbringing and their home life. The apple doesn’t fall far from the tree. Which means his parents are probably white supremacists also.

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    Mute Teresa O'Halloran
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    May 15th 2022, 9:13 AM

    @Jason Ebbs: what about the case of Ethan Crumbley, do you think his parents didn’t know what he was planning?

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    Mute Jason Ebbs
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    May 15th 2022, 9:34 AM

    @Teresa O’Halloran: Difference circumstances. He was 15 at the time of his shooting, so a child.

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    Mute Roy Dowling
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    May 15th 2022, 11:42 AM

    @Teresa O’Halloran: Do you know everything your children are doing?

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    Mute Dave
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    May 15th 2022, 11:24 AM

    Horrific stuff, after seeing the footage.. When you can just roll up with an automatic weapon like that without a second thought, there is something seriously wrong with the American society and the obsession with guns…

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    Mute Lynne Colson
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    May 15th 2022, 9:28 AM

    Unfortunately the U.S. constitution would need to be so changed from “The right to bear arms” for any of this to stop or lessen even. Because the American “forefathers” wouldn’t have been able to have the foresight this far in to the future. A U.S. president is unable to simply change the constitution and the gun lobby is large and vocal. Republicans would never allow this change to the constitution.

    Contrary to popular belief there are a lot of people in the U.S. have no interest in guns.

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    Mute Paul Furey
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    May 15th 2022, 10:43 AM

    @Lynne Colson: true! Even if they could change everything just to exclude automatic and assault rifles and all those other mad guns they have over there.

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    Mute Seamus Mac
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    May 15th 2022, 3:08 PM

    @Paul Furey: I think there is an automatic weapons ban but it needs to be strengthened.

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    Mute Bramley Hawthorne
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    May 15th 2022, 8:13 AM

    A gun-totting society is a contradiction.

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    Mute E.J. Murray
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    May 15th 2022, 12:23 PM

    He probably thinks that he’s going to be found innocent like Rittenhouse. The US continues to destroy itself, and all that it’s supposed to stand for.

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    Mute Jonhayes38
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    May 15th 2022, 9:17 AM

    Thoughts & prayers…

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    Mute Seán Ó Briain
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    May 15th 2022, 2:50 PM

    Another MAGA loon.

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    Mute Seamus Mac
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    May 15th 2022, 3:10 PM

    @Seán Ó Briain: no just a loon.

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    Mute Jimmy Reid
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    May 15th 2022, 7:54 AM

    What’s NY policy on the d penalty. You’d want this boyo to go for this. Crazy

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    Mute A$AP Ragnick
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    May 15th 2022, 9:10 AM

    @Jimmy Reid: dont think new york have it. Could be wrong though.

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    Mute Peter Sutton Fitzgibbon
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    May 15th 2022, 11:26 AM

    …and two were white before surrendering… ?

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