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Those who decide upon, plan, order or execute military operations during an armed conflict bear individual criminal responsibility for war crimes they have committed.

Persons entitled to special protection 497. The previous chapter examined the general protection of civilians from enemy attacks. The present chapter will deal with a complementary protection afforded by LOIAC to certain categories of persons, both civilians and combatants, ‘either because they are regarded as especially vulnerable or on account of the functions they perform’. It must be underscored that the special protection granted to selected subsets of civilians (e.g., women and children) does not detract from the general protection embracing other civilians. That is to say, it is unlawful to attack even male civilians in the prime of their lives. The different categories of beneficiaries (a) Women 498. A host of provisions are included in the Geneva Conventions and in AP/I, designed to safeguard the rights of women. Article 27 (second paragraph) of Geneva Convention (IV) offers women special protection against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault. This rule is reiterated in Article 76(1) of AP/I. But, whereas the former clause applies only to civilian women who are ‘protected persons’ in the sense of Geneva Convention (IV) – thereby excluding, primarily, a Belligerent Party's own nationals – the latter text covers all women without exception. 499. Article 8(2)(b)(xxi) of the Rome Statute brands as a war crime outrages upon personal dignity. This comprehensive provision evidently covers male victims as well, but its main thrust is the protection of women. The perpetration of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or other forms of sexual violence constitutes a war crime under Article 8(2)(b)(xxii). Enforced prostitution is already banned in Article 27 (second paragraph) of Geneva Convention (IV) and in Article 76(1) of AP/I (cited supra 498). Sexual slavery can be subsumed under the heading of slavery, the prohibition of which is commonly recognized to be a peremptory norm of contemporary international law ( jus cogens ). Forced pregnancy and enforced sterilization seem to be innovations of the Rome Statute. The most chronic form of sexual violence against women in wartime is, of course, rape. It ensues from the Delalic et al . Judgment, delivered by the ICTY Trial Chamber in 1998, that rape and similar sexual assaults against women are forbidden by customary international law. In the Kunarac et al . Judgment of 2002, the Appeals Chamber stressed that the young age of victims was an aggravating circumstance in the sentencing for rape.

I. The ‘Just War’ Doctrine in the Past A. The Roman Origins 181. A distinction between ‘just war’ (bellum justum) and ‘unjust war’ (bellum injustum) can be traced back to the jus fetiale. This body of law existed in ancient Rome, from the days of the Kings until the late republican era. The fetiales were a college of priests charged with a number of duties, some of which pertained to the inception of war. 182. Cicero stated that it may be gathered from the code of the fetiales that no war is considered just, unless it is preceded by an official demand for satisfaction or warning, and a formal declaration has been made. It follows that two indispensable conditions of a procedural nature had to be met before the commencement of hostilities. The first requisite was that a demand be addressed to the opponent, insisting on satisfaction for the grievance caused to Rome (such satisfaction taking the form of restitution, withdrawal of forces, etc.), with a fixed time allowed for a proper response. The second condition was that a formal declaration of war had to be issued. The declaration entailed an elaborate ceremony, culminating in a spear being hurled across the Roman frontier into the enemy's territory, and including the recital of ancient legal formulas recorded in detail by Livy. It appears that, apart from the ritualistic and procedural aspects of their duties, the fetiales were also empowered to pronounce whether there were sufficient substantive grounds justifying the outbreak of hostilities (e.g., violation of a treaty or the sanctity of ambassadors, infringement of territorial rights or offences committed against allies). 183. As a rule, the political powers in Rome were disallowed to go to war (during the relevant period) without the explicit and prior approval of the fetiales. Yet, it is only fair to observe that, to all intents and purposes, the fetiales were the servants of their political masters and ‘practically bound to do their bidding’.

436. The profound change that has gripped the international legal system, as a result of the prohibition of the use of inter-State force (see supra 233) and the criminalization of acts of aggression (see supra 332 et seq .), raises searching questions in regard to a number of concepts and institutions rooted in the obsolete axiomatic postulate that States are free to commence hostilities at will (see supra 207–8). It is true that, in some measure, the international community has already adjusted itself to the new legal environment. This is manifest, for instance, in the current invalidity of peace treaties dictated by the aggressor to the victim of aggression (see supra 107 et seq .). But modification of time-honoured doctrines encounters intractable difficulties (both practical and theoretical) in many areas. 437. The need for adaptation of the law to the present status of inter-State force is particularly attractive when adumbrated against the silhouette of the antiquated perception of the two antagonists in war (aggressor and victim) as intrinsically equal in jus ad bellum standing. It is noteworthy that, as pointed out already by Grotius, the Latin word bellum is derived from the more ancient term duellum . For centuries, international law treated war in the same manner that domestic law used to deal with the duel. War, like a duel, was viewed with toleration. The parity of the contenders was taken for granted, and the sole concern was about adherence to criteria of ‘fair play’. Yet, just as the duel is no longer permitted by national legal systems, war is now forbidden by international law. The modern jus ad bellum treats one of the Belligerent Parties as a criminal while the other is either the victim of the crime or has come to the victim’s rescue. The question is whether, as a result, the ground has not been cut from under certain legal norms linked to the idea of the equality of Belligerent Parties.

Settlements Geneva Convention (IV) 570. Article 49 (sixth paragraph) of Geneva Convention (IV) promulgates: The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. Although this prohibition is not enumerated as a grave breach in the Convention itself, Article 85(4)(a) of Protocol I appends it to the list of grave breaches. Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court stigmatizes as a war crime the ‘transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies’. The words ‘directly or indirectly’ appear neither in the original Geneva text nor in the Protocol. They were inserted in the Rome Statute as a reminder that not only a compulsory transfer into the occupied territories counts, but also one based on acts of ‘inducement and facilitation’. The reminder was intended ‘as a snub to Israel’. In the Elements of Crime, a footnote was appended, whereby ‘[t]he term “transfer” needs to be interpreted in accordance with the relevant provisions of international humanitarian law’. 571. The use of the verbs ‘deport’ and ‘transfer’ in the sixth paragraph of Article 49 (in relation to the Occupying Power's own population) – the same key words employed in the first paragraph of the Article (having to do with protected persons in an occupied territory) (see supra 376) – may cause some confusion.

Hague Regulation 43 Hague Regulation 43, in its common non-binding English translation (1907 version), reads: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. The authentic (and binding) French text of Regulation 43 is: L'autorite du pouvoir legal ayant passe de fait entre les mains de l'occupant, celui-ci prendra toutes les mesures qui dependent de lui en vue de retablir et d'assurer, autant qu'il est possible, l'ordre et la vie publics en respectant, sauf empechemant absolu, les lois en vigueur dans le pays. 203. The juxtaposition of the two versions of Regulation 43 reveals remarkable discrepancies between them. The most blatant mistranslation relates to the first part of the provision where the phrase ‘l'ordre et la vie publics’ (i.e., public order and life) is rendered in English as ‘public order and safety’. Safety, which is not even mentioned in French, thus becomes the focal point in English. This peculiar slip in the translation – left uncorrected for a century – cannot be easily explained, considering that only the French text is authentic. There is no doubt that ‘[t]he word “safety” does not precisely express the significance of the original words quoted above, which imply also the entire social and commercial life of the community’.

It is impossible to overestimate the contribution of the International Military Tribunal (IMT) at Nuremberg to the development of international criminal law. The IMT was a far cry from a military court. It was composed of four Judges and four Alternates: one from each of the four Big Allied Powers (the United States, the United Kingdom, the USSR and France). The Nuremberg trial of 1945/1946 has set the stage for the establishment of the permanent International Criminal Court (ICC) in the Rome Statute of 1998. Sixteen of the defendants in the Nuremberg trial were convicted of traditional war crimes. It is true that, in certain respects, the state of the law has undergone some important changes in the Rome Statute, but the statute does not follow in the footsteps of Nuremberg. Keywords:International Criminal Court (ICC); international criminal law; International Military Tribunal (IMT); Nuremberg; Rome Statute; traditional war crimes