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War crimes, waffle and the war on terror

By Clive Williams - posted Wednesday, 9 August 2006

Since the commencement on July 12 of hostilities in southern Lebanon, there has been finger-pointing by both sides and their backers about Hezbollah’s and Israel’s alleged war crimes.

Laws governing conflict are complicated and subject to broad interpretation. They are only likely to be applied by nation states when political pressure makes it unavoidable, or to punish vanquished leaders and their minions who have killed prisoners.

International humanitarian law is the legal corpus comprised of the Hague and Geneva Conventions, as well as subsequent treaties, customary international law, and case law building on legal precedents, such as those established by the Nuremberg War trials. It defines the conduct and responsibilities of belligerent nations and individuals engaged in warfare, and their treatment of civilians.


The main effect of the Hague Convention of 1899 was to ban the use of certain types of modern technology, notably bombing from the air, chemical warfare, and hollow point bullets. The Hague Convention of 1907 modified the 1899 convention and focused more on naval warfare. It also created the doctrine of command responsibility for war crimes.

Because of the number of chemical warfare casualties in the World War I, there was a 1925 Geneva Protocol to the Hague Convention, banning all forms of biological and chemical warfare. This was augmented by the Biological Weapons Convention (1972) and the Chemical Weapons Convention (1993).

There are actually four Geneva Conventions: the First dating from 1864, Second (1949), Third (1929), and Fourth (1949). Their main focus is on the humane treatment of wounded and sick combatants and prisoners of war, and the protection of civilians. The four conventions were last revised and ratified in 1949.

Nearly all 200 or so world nation states are signatories to the Geneva Conventions. All signatory states are required to enact domestic legislation to make grave violations of the conventions a punishable criminal offence.

In addition there are three Geneva protocols: Protocol I (1977), II (1977), and III (2005), generally relating to victims and distinctive emblems.

There are two parts to the laws of war: law concerning acceptable practice like the Geneva and Hague Conventions, is called jus in bello; while law concerning allowable justification for the use of armed force is called jus ad bellum.


The United Nations charter binds consenting nations in terms of what is legal and what is acceptable.

As a reaction to 9-11, the Bush Administration adopted several controversial extra-legal recourses including introducing “illegal combatant” status and “extraordinary rendition”, allowing torture under prescribed rules and, in 2003, unlawfully (as we now know) invading Iraq.

Attorney-General Gonzales’ advice to President Bush was that using the term “unlawful combatants” substantially reduced the risk of domestic criminal prosecution under the US’ War Crimes Act.

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An edited version of this article was first published in The Courier-Mail on August 4, 2006.

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About the Author

Professor Clive Williams has a career background as an officer in Australian Military Intelligence. He has worked and lectured internationally on terrorism-related issues since 1980, and started running terrorism courses at the ANU in 1996.

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