Whether in conflicts in Syria, Yemen or Iraq, civilians bear the brunt of war. The protection of civilians lies at the foundation of international humanitarian law (IHL), the law that regulates the conduct of war. According to the United Nations, a war crime is a serious breach of international law committed against civilians or “enemy combatants” during an international or domestic armed conflict.
A war crime occurs when superfluous injury or unnecessary suffering is inflicted upon an enemy. In spite of the outrage caused by the bombing of a school or a country’s TV station, such actions do not necessarily amount to war crimes. Such bombing will only be a war crime if the extent of civilian casualties resulting from the attack is excessive compared to the military advantage gained from the attack. And in contrast with genocide and crimes against humanity, war crimes have to occur in the context of armed conflict.
Although the concept of war crimes has ancient roots, rules on war crimes started to develop at the end of the 19th century. The meaning of war crimes was clarified in the four 1949 Geneva Conventions.
Article 147 of the Fourth Geneva Convention defines war crimes as “wilful killing, torture or inhuman treatment, including … willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person … taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”.
But in spite of the near-universal ratification of the Geneva Conventions, war crimes often go unpunished. According to Mark Drumbl, professor of law at Washington and Lee University, this can be attributed to several factors, including difficulties in obtaining evidence beyond a reasonable doubt, high requirements such as proving intention and, most importantly, power politics.