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War crimes under international customary law: the historical development and the legal issues

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War Crimes and Complementarity at the ICC: How the United States of America and the United Kingdom Have Responded to War Crimes Allegations

--> Harrison, Jonathan Marcus (2021) War Crimes and Complementarity at the ICC: How the United States of America and the United Kingdom Have Responded to War Crimes Allegations. PhD thesis, University of Leeds.

This thesis will discuss the responses of the United States of America and the United Kingdom to allegations that their personnel have committed war crimes in the context of the armed conflicts in Afghanistan, and Iraq, respectively. This will be done in order to assess the extent to which these responses have complied with the principle of complementarity as found at the International Criminal Court (ICC). This is a topic of importance since such allegations have been subject to ICC scrutiny in recent years, and compliance with the principle of complementarity is a way in which both States can avoid further scrutiny. The discussion in relation to the United States centres around an analysis of criminal law applicable to allegations under scrutiny by the ICC Office of the Prosecutor (OTP); an examination of the Report of the Senate Armed Services Committee on the treatment of detainees in US armed forces custody, as well as the Senate Intelligence Committee’s Report on the CIA’s detention and interrogation program; before discussing the criminal investigation process in the United States. The discussion of the United Kingdom will also analyse the framework of law applicable to the crimes under OTP scrutiny, before discussing the extent to which the Baha Mousa Report demonstrates that the UK has complied with the principle of complementarity. The analysis of the UK also includes chapters discussing the impact of the Iraq Historic Allegations Team, and the potential impact of legislation aimed at preventing vexatious prosecutions. The thesis concludes by arguing whether the analysis of the situation in these two States is reflective of how the principle of complementarity was envisaged to apply at the time the Rome Statute was created.

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Russian War Crimes Against Ukraine: The Breach of International Humanitarian Law By The Russian Federation

Christopher Martz et al., Russian War Crimes Against Ukraine: The Breach of International Humanitarian Law By The Russian Federation, GLOBAL ACCOUNTABILITY NETWORK 1, [pin cite] (2022), [url if viewed online].

276 Pages Posted: 27 May 2022

Christopher Arima (Martz)

Journal of Global Rights and Organizations; Syrian Accountability Project; Syracuse University College of Law

Date Written: May 11, 2022

This document will primarily cover the commission of war crimes and crimes against humanity by the Russian Federation from February 24, 2022, to April 1, 2022. The basis of this report is founded upon open-source research and evidence collection by an inter-collegiate investigative team from across the United States, collecting reports, photographic, and video evidence of crimes occurred in Ukraine. The contents of this document will provide the reader with a brief, but important, historical overview of Ukraine and its relationship with the Russian State. In addition, it will articulate the international legal mechanisms of accountability, identify individuals most responsible for the commission of crimes in Ukraine, and provide a series of representative charges to be used in an international criminal tribunal. In its conclusion, this paper calls upon the international community to respond by utilizing the available international accountability mechanisms, as the Russian Federation is openly committing crimes of aggression, war crimes, and crimes against humanity. For the readers reference, Section V contains a command-and-control diagram produced by the Global Accountability Network and its dedicated researchers. In addition, this document contains appendices that provide the reader more detailed information regarding the Russian Federation’s criminal activity in Ukraine. Appendix A is a sample draft of an international criminal indictment against President Putin. Appendix B is a crime narrative detailing, by date, the crimes committed in Ukraine by the responsible party. In addition, Appendix C expands on the crime narrative and provides a more detailed breakdown of the violations of International Humanitarian Law, as well as documenting violations of the Ukrainian Penal Code. Appendix D is a comprehensive dossier detailing the command-and-control structure of the Russian political and military senior leadership. This “dossier” lists the individuals responsible for the atrocities in Ukraine, and documents relevant information surrounding their responsibility and complicity. Notably, there are omissions from this document that are deserving of discussion and further analysis. As of the writing of this very section, an atrocity has occurred in Bucha on a devastating scale. Recently, the bodies of 410 civilians have been recovered from areas in the wider Kyiv region after Ukrainian forces regained complete control, with reports of widescale murder, torture, and rape. While the atrocity of Bucha falls outside the temporal scope of this document, the efforts of the Global Accountability Network’s Ukraine Task Force does not end here. This document is merely the foundational document and will launch a series of subsequent investigations and analyses of crimes committed in Ukraine. The Ukraine Task Force will not allow Bucha to be forgotten and will be the centerpiece analysis of its next publication.

Keywords: Ukraine, International Law, Rome Statutes, Geneva Convention, Crimes Against Humanity, Russian Federation, War Crimes

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Christopher Arima (Martz) (Contact Author)

Journal of global rights and organizations ( email ).

950 Irving Avenue Syracuse, NY 13244 United States

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Syrian Accountability Project ( email )

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Beyond Intractability

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By Charles (Chip) Hauss

September 2003

The concept and issue of war crimes are both relatively new. Of course, inhuman acts have been committed in wars throughout history. However, it was only with the Holocaust and other genocidal atrocities of World War II that politicians, lawyers, and average citizens alike began to think of some of the horrors of war as crimes for which perpetrators could be held legally accountable.

Before then, individual soldiers could be tried for individual crimes such as rape or murder. However, it was only when political and military leaders began to systematically target large civilian groups because of their nationality, ethnicity, gender, or religion that we began to see the necessity of holding political leaders accountable for their political decisions in a court of law.

What Are War Crimes?

It has long been considered acceptable for the victors to try the leaders of defeated countries for violations of international law after the completion of a war. However, it has only been in the last century and a half that rules and procedures for doing so have begun to be codified and regularized. The first major step came with the development of the Geneva Conventions for the treatment of prisoners of war, civilians, and others during combat. The Conventions were largely written by the International Committee of the Red Cross and have been ratified by many, though not all, states. They continue to be updated, most recently to include civil as well as international wars.

The other major turning point came at the Nuremberg and Tokyo trials of leading German and Japanese officials after World War II. The Nuremberg Trials were particularly important because they made steps toward defining what is meant by crimes against peace ("planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties") and against humanity ("murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial, or religious grounds").[1] Those precedents were later approved by the General Assembly of United Nations and are now considered to be part of the main body of international law. After the systematic use of rape by Serbs in Bosnia and Croatia in the first half of the 1990s, it was added to the list of crimes.

There is, unfortunately, a considerable lack of clarity in these and other definitions, which have been offered for war crimes. First, there has been a very definite reluctance on the part of the international community to prosecute war crimes that either fall below a certain undefined magnitude or to even consider those that receive little or no coverage in the Western press. Second, as has been the case throughout history, it has proven all but impossible to hold victors accountable for alleged war crimes. Thus, there have been credible accusations against the United States for its bombing of Serbia during the Kosovo crisis in 1999 and for the impact of its sanctions on Iraq since the Gulf War of 1991. Similarly, many critics accuse Israel of violating international law in its continued occupation of the West Bank and the Gaza Strip and its more general treatment of Palestinians.

What's more, the prosecution of war crimes is highly controversial. Tens of millions of civilians lost their lives in fighting beginning with the Second World War, most of them on "religious, racial, or political grounds." Yet, there were only four war crimes tribunals convened between 1945 and the end of the century. The first two tried the leaders of Germany and Japan. The others were created to prosecute alleged perpetrators of genocide in the former Yugoslavia and in Rwanda.

Neither, ICTY (the International Criminal Tribunal for the Former Yugoslavia) or ICTR (the International Criminal Tribunal for Rwanda) has been a rousing success by anyone's standards. While ICTY was in the midst of an extended trial of former Yugoslav President Slobodan Milosevic when this essay was written, many of the most notorious Serbian leaders avoided capture for years, including General Ratko Mladic and former Prime Minister Radovan Karadzic of the Republika Srpska, which was allegedly responsible for most of the atrocities. The Rwandan situation is different. As many as 200,000 men have been detained, many of them since shortly after the genocide in 1994. Neither the Rwandan government nor the ICTR has the resources to try so many people, let alone deal with the social and political consequences of any such number of convictions of people who killed their fellow citizens, most often by using machetes.

To avoid the use of ad hoc courts such as these, ensure due process and the rule of law in war crimes cases, and to deter future war crimes, the international community created the International Criminal Court (ICC). The Statute of Rome, which gave birth to the Court, was approved by a vote of 120 to 7 of UN member states in July 1998. By April 2002, the required 60 countries had ratified the treaty (the number had topped 75 by the end of 2002), and the Court was therefore formally created in July 2002. It will only have jurisdiction over crimes committed after that date and only if states do not initiate cases in domestic courts. It will, however, provide a permanent tribunal before which large-scale crimes against humanity can be pursued. It, too, is controversial.

A number of important countries had not ratified the treaty by the end of 2002, including the United States, Russia, China, and Iraq. The United States (an original signatory of the Rome Statute) has been outspoken in its opposition ever since the Bush Administration took office and formally "unsigned" it in early 2002. Even though most legal experts think there are adequate guarantees to the contrary, Washington has claimed that American troops, including its peacekeepers, could be subject to arbitrary harassment and prosecution under its provisions.

Some critics argue that war crimes tribunals suffer the same major flaw as all of international law. Indictments may be issued, and some trials may be held. However, the international legal system lacks adequate enforcement mechanisms to arrest and otherwise implement whatever decisions it makes, especially since so many large and internationally engaged states have refused to enter the ICC system.

Finally, as in Rwanda, where so many average citizens have been caught up in war crimes charges, there is growing support to deal with the cases through restorative justice rather than international criminal law. Tens of thousands of prosecutions could place an impossible burden on any country's legal system and could actually deepen the divisions left after the end of the fighting. As a result, a number of countries (including Yugoslavia and Rwanda) are considering versions of a truth and reconciliation commission to handle the cases of all but the worst perpetrators of war crimes.

Why Are War Crimes Important

War crimes are important because they have been committed in virtually every war fought in recent decades. The reasons for that range from the spread of deadlier weapons, which make the killing of citizens and "collateral damage" all but unavoidable, to the intense racial, ethnic, and religious hatred that underlies many of today's disputes. In short, intractable conflict seems to bring massive human rights abuses in its wake. Not dealing with the crimes of war, then, only deepens the anger that gave rise to the fighting and in so doing lays the groundwork for even bloodier battles in the future.

What Citizens Can Do

On one level, there is little that average citizens can do about war crimes. Once a case reaches one of the tribunals, it becomes the province of a tiny band of attorneys who have mastered the thousands of pages of documents underlying the ICC and the rest of the statutes and precedents underlying international criminal law.

On another level, popular involvement is all-important. Wars, including war crimes, in far-off parts of the world receive very little attention in the Western mass media. And, because crimes against humanity often never appear on our "radar screens," there is little public pressure to do anything about them.

Today, fortunately, it is relatively easy for people to inform themselves about human rights violations, including war crimes, on the World Wide Web. Traditional organizations such as Amnesty International and Human Rights Watch have broadened their missions to include some of the issues that fall under the ICC's jurisdiction. And, Crimes of War is but the most important of the NGOs , which routinely investigate and publicize alleged instances of gross violations of human rights. Without that kind of an informed public, it seems highly unlikely that pressures to strengthen the international regime combating war crimes will grow.

What States Can Do

The ICC, the UN, and other international courts are part of what international relations experts call a "regime," a collection of rules, institutions, and norms that bring a degree of order to a rather disorderly system of global politics. As suggested earlier, however, the regime has more than its share of problems. And, in an international system which is still largely dominated by states as far as reaching new international agreements is concerned, their support will be needed if more "teeth" are to be added to the ICC and other legal institutions.

At the very least, the United States, Russia, China, Iraq, and the other 100-plus countries, which have not ratified the ICC treaty, must do so. It may well be that the treaty will have to be modified or other "side agreements" reached before these reluctant powers feel comfortable joining.

Even more importantly, states that are parties to the regime have to do what they can to strengthen it. That means using all the moral, legal, and political power at their disposal to make certain that alleged violators of international criminal law are prosecuted and punished if convicted. Moreover, as has happened in the development of other international regimes (e.g., international trade or telecommunications), states can play a critical role in creating an environment in which support for new powers and new members grows.

What Third Parties Can Do

Similarly, third parties , including the international legal institutions themselves, have a vital role to play. Despite the refusal of the United States and the other countries to join the ICC, the overall trend since the end of the Cold War has been for international courts to gain, not lose, influence. While the realists are no doubt correct when they claim that international courts lack the enforcement power of their domestic equivalents, some, including the various European courts, do have considerable power. Even more importantly, the international legal institutions and third parties in general have contributed to the growing realization that war crimes are a serious problem. After all, it is barely half a century since the first war-crimes tribunals were convened.

[1] Both in Graham Evans and Jeffrey Newnham, Penguin Dictionary of International Relations . (London: Penguin, 1996), 567-8.

Use the following to cite this article: Hauss, Charles (Chip). "War Crimes ." Beyond Intractability . Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2003 < http://www.beyondintractability.org/essay/war-crimes-general >.

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Friday essay: why soldiers commit war crimes – and what we can do about it

Research Fellow, Deakin University

Disclosure statement

Mia Martin Hobbs does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Deakin University provides funding as a member of The Conversation AU.

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The following essay contains disturbing images and language.

In 2020, the Inspector-General of the Australian Defence Force released the Afghanistan Inquiry into Australian Defence Force Special Forces atrocities in Afghanistan. The report – commonly known as the Brereton Report – resulted in a flurry of analysis debating how and why Australian soldiers could have committed war crimes.

Some commentators focused on “high operational tempos” that increased soldiers’ dependence on their teams. Others emphasised how operational independence among “elite” forces allowed “charismatic leaders” to influence teams with a “warrior hero” culture. A common thread was that counterinsurgency warfare made it difficult to differentiate allies, civilians and enemies among the local population.

While these factors are important, analyses focusing on unit problems tend to treat culture as a static and internal problem, rather than an ongoing practice influenced by broader society. Similarly, the stress on counterinsurgency warfare negates the fact that similar crimes are also well documented in trench warfare and in occupations in conventional wars.

For policymakers, military leaders and the general public, a deeper understanding of the nature of war crimes is crucial if we want to prevent them from happening again.

War crimes reflect social prejudices. They are shaped around wartime laws and policies, and are facilitated by cultural veneration of the military. Historical comparisons between general infantry forces in Vietnam and special forces in Afghanistan show that atrocities have at least as much to do with broader social, political and cultural fabrics as they do with tempo, leadership and internal culture.

Military leaders, policymakers and civilians should recognise that atrocities, far from being aberrations, are likely outcomes of warfare. By proactively tackling troop prejudices, anticipating the manipulation of policies in the field, and encouraging civilian engagement with the realities of warfare, we can reduce the likelihood of war crimes in the future.

Read more: 'Fit for service': Why the ADF needs to move with society to retain the public trust

Trained to dehumanise the enemy

Military recruits are commonly trained to dehumanise the race or ethnicity of their enemy forces. This dehumanisation facilitates combat and strengthens the collective identity among soldiers. By portraying an enemy group as fundamentally different – less valuable, less human – the group establishes unity within the “Self” and justifies violence towards the “Other”.

American and Australian Vietnam veterans, for instance, remembered their training as “bastardisation”, where “the loathing was hammered in”. They were “taught to hate the gooks, to see them as less than human. You can’t kill a Vietnamese, but it’s easy to blow away a gook or a slope”.

Troop racism is often an intensified version of prejudices apparent in broader societies. After 9/11, for example, Islamophobia in Australia became more pronounced, with overt discrimination, suspicion and violence towards Muslims.

Suspicion of Afghans flows through the Brereton Report into Australian war crimes in Afghanistan: “local nationals were presumed to be hostile”, and Special Forces aimed to “‘clear’ the battlefield of people believed to be insurgents, regardless of the Law of Armed Conflict”. This suggests that the soldiers viewed the entire population on “the battlefield” – that is, Afghans living on their own lands – as the enemy.

Racism in the larger Australian military allowed atrocities to continue unchecked: Australian Defence Force officers responded to Afghan complaints about Special Forces conduct with “a presumption, not founded in evidence, to discount local national complaints as insurgent propaganda or motivated by a desire for compensation”.

Similarly, militaries from patriarchal societies find misogyny among their ranks, manifesting in both institutional violence and war crimes.

Historian Christian Appy found that in US basic training for Vietnam,

the model of male sexuality offered as a military ideal in boot camp was directly linked to violence […] Drill instructors repeatedly described war as a substitute for sex or as another form of sex.

Sexualised descriptions of warfare are prolific in Vietnam War memoirs :

killing is sexual. Death too […] Someone once asked me to describe up-close combat in a nutshell. How about this? Pure pussy.

These links between masculinity, sex, violence and military authority produced atrocities. Journalists and scholars reported that the rape and murder of women was so widespread in Vietnam that soldiers coined the term “double veteran” to glorify perpetrators. In a war where combat soldiers felt vulnerable to guerrilla attacks, mines and booby traps, rape was frequently used to assert control, reinforcing soldiers’ sense of masculinity and authority.

Underlying gendered and racialised atrocities is a psychological drive to conquer through violence. Australia, like other Western nations involved in “the War on Terror”, saw a resurgence of white male supremacy in the 21st century. Indeed, the agendas of neo-colonial “West versus the rest” foreign policies “supercharged” white male supremacist movements.

This resurgence is particularly apparent in the military, with groups of deployed soldiers bearing white supremacist symbols, including the Nazi and Confederate flags, Ku Klux Klan hoods and the Crusader’s Cross.

White male supremacy helps to explain atrocities that intentionally degrade victims: torture, rape and war pornography. For soldiers who see themselves as “crusaders” fighting a war for “civilisation” against “barbarism”, racialised and gendered violence are logical steps in maintaining racial and gender hierarchies.

Political scientist Laleh Khalili notes that in the War on Terror, torture practices were frequently shaped around religious humiliation and emasculation, based on “an orientalist understanding of what is considered honourable or shameful in ‘Muslim culture’”. Similarly, the common tendency for soldiers to document their atrocities reflects a desire to exert total control over the Other.

Finally, degrading war crimes are often collective practices. Perpetrators enact and share power with one another, reinforcing values and establishing loyalty within the group.

Read more: Owning up: Australia must admit its involvement in Afghanistan has been an abject failure

How military policies shape war crimes

Soldiers who commit atrocities are responding to military policies: Laws of Armed Conflict (international law) and Rules of Engagement (country-specific policies). Some soldiers who commit war crimes interpret Rules of Engagement in contradiction to Laws of Armed Conflict. Some deliberately exploit the former to violate the latter. In both situations, crimes are shaped by the policies set out to prevent them.

There is strong evidence to suggest that military frameworks prevent soldiers from recognising violations of international law. Veterans often use techno-strategic language to describe torture during interrogations, corpse desecration, forced displacement and small-group civilian killings in free-fire zones, indicating that they learned these crimes as lawful tactics.

For example, in both Vietnam and Afghanistan, Australian soldiers desecrated corpses. One Vietnam veteran remembered :

I blew up bodies […] It saved time digging a hole. They used to call it an engineer’s burial. I was well aware of the psych ops angle of it because they’d always try and take their dead away with them. If you understand the Asian mind, you know they all want to go to the happy hunting ground in one piece and have a proper burial. So, by blowing the body to shithouse, it will piss off the ones that are still alive.

The veteran’s choice of words here – “they used to call it” – indicates this was not an isolated incident. Another veteran remembered a

policy of dumping VC [Viet Cong] bodies in town market squares or dragging them behind Armoured Personnel Carriers, in sight of the village children, both methods supposedly meant to draw out further VC sympathisers.

Similarly, the ABC’s Afghan Files revealed that in 2013, an SAS corporal severed hands from the bodies of three Afghan insurgents. When questioned, the corporal explained that it was “ a tactical necessity ” to collect fingerprints.

Vietnam veterans were also trained to think that mistreating and killing civilians was lawful under certain circumstances. The US-led pacification strategy to isolate rural civilians from revolutionary forces involved the forced displacement of civilians.

To secure the Australian base at Nui Dat, the nearby villages of Long Tan and Long Phuoc were destroyed and the villagers resettled by “clearing patrols”:

we’d put up huts and then we’d go into a village and say, “right, we are going to shift you into this lovely beaut place you’re going to live in”. And you’d take them out of there, take everybody out. Then you’d burn them [the villagers’ huts]. And then you start to hear screaming. And then they’d all come out, because some of them were Viet Cong.

Once the area was “cleared”, it was designated a “free-fire” or “restricted” zone, which soldiers were instructed to treat as “enemy territory”.

Free-fire zones are not a legal instrument of war. Nor is displacing civilians and destroying their property. Yet through these policies, soldiers justified mass killings and total destruction. “I flew infantry on helicopters,” one US veteran recalled,

and we did search-and-destroy missions. We would fly into a village, enemy village, and we would kill everything and every pig and chicken and water buffalo and burn down every hooch in the place, just because it’s enemy territory.

Killings in free-fire zones are the kinds of acts commonly referred to as “fog of war” incidents. Recent investigations into Australian war crimes deliberately avoided all “fog of war” accounts, because ambiguity around intention made them nearly impossible to prosecute.

Yet examining more ambiguous actions reveals that military policies can produce atrocities. Social anthropologist Heonik Kwon argues that displacement and “free-fire” policies led directly to massacres.

While Australian and American military understood that any Vietnamese in “free-fire” zones were the enemy, displaced civilians monitored the situation in their homes carefully, petitioning local authorities for visitation rights and travelling back and forth to tend to family farms.

“Safe” villages attracted returning civilians, but could be quickly recategorised as “free-fire” zones by military command without the villagers’ knowledge. In the case of the 1968 My Lai massacre, the villagers “considered the US soldiers in [nearby] My Khe to be friends”.

Read more: 'Accidental Napalm' turns 50: the generation-defining image capturing the futility of the Vietnam war

Soldiers also exploited ambiguity around “fog of war” incidents to commit atrocities. US Vietnam veterans described a policy whereby Vietnamese were deemed enemy forces if they ran away. Soldiers would shoot near civilians to “test” them, and kill them when they jumped or fled: “they were killed for being frightened. And of course they were frightened, because they knew they might be killed.”

Similarly in Afghanistan, the Brereton Report alleges that soldiers developed an expansive interpretation of Rules of Engagement around “spotters” and “squirters” – people suspected of relaying information to the Taliban, or believed to be running to or from a weapons cache – to justify killing. In doing so, they instilled fear among the local population, giving Afghans good cause to flee and allowing soldiers to claim further killings of “squirters”.

Military lawyers were aware of these “sanctioned massacres”, and tried to limit soldiers’ ability to kill by changing the Rules of Engagement, but soldiers “just got more creative in how they wrote up the incidents”.

Civilian murder is a direct result of “body count” or “kill count” measures of victory, where military success is equated to the number of enemy killed. In both Vietnam and Afghanistan, soldiers competed to outscore other patrols in the count and deliberately planted “throwdowns” (weapons or equipment) on dead bodies to document them as legal killings.

The My Lai massacre , for instance – in which over 500 civilians were slaughtered, with many tortured and raped – was initially reported by the US military as a “fierce fire fight”, in which US soldiers killed 128 “enemy”, justified by the recent “free-fire zone” designation and three planted weapons.

In Afghanistan, the Brereton Report concluded that Australians’ frequent use of “throwdowns” originated as a “strategy of avoiding scrutiny” when a killed Afghan “turned out not to be armed”. It then morphed into a deliberate practice to conceal calculated murder, with soldiers allegedly carrying a backpack with materials to plant on non-combatants. The practice was widespread enough that soldiers “use[d] to joke about how the same serial number [of a gun] was in every single photo of a dead Afghani [sic]”.

The torture and murder of prisoners also demonstrates deliberate subversion of Laws of Armed Conflict.

Sociologist Samantha Crompvoets found “corroborated accounts” that Australian Special Forces in Afghanistan would detain men and boys in guesthouses in villages and torture them, depriving them of food, water and medicine, “do anything at all they wanted to”, and then kill them. These practices were justified as “interrogation”, an institutional as well as individual defence by Western forces in the War on Terror.

A common justification for the murder of prisoners is “medical termination”. An Australian Vietnam veteran described killing a wounded enemy in his memoir, and when later challenged claimed it was a “mercy killing”. More recently in Iraq, US Navy SEAL medics admitted that they killed a captured militant by doing “medical scenarios on him until he died”. UK and US soldiers confirmed no one they fought with ever wanted to save a wounded enemy combatant.

Read more: Why investigating potential war crimes in Afghanistan just became much harder – and could take years

Culture, national myths and war crimes

The occurrence of these atrocities contradicts a widespread belief that combat soldiers exhibit an unwillingness to kill. Many civilians want to believe that soldiers can fight effectively, honourably and unwillingly out of duty. This belief allows civilians to revere soldiers who do the nation’s “dirty work”. Underpinning this admiration is a view that international law is abstract and idealistic, and that soldiers have their own “moral code” grounded in the realities of warfare.

“War is a messy business,” according to the former Australian War Memorial Director Brendan Nelson, who “question[s] whether the national interest is in trying to tear down our heroes”. A petition to “ stop the witch hunt ” against Victoria Cross recipient Ben Roberts-Smith described how Special Forces “deploy to the hottest hot spots [… to] do a job that the vast majority of people cannot do”, and claims that “you want men like this defending the country”.

Our cultural approach to war tacitly approves ultraviolence while avoiding any discussion of what it actually entails, entrenching the idea that combat and killing impart special knowledge and setting soldiers beyond civilian judgement. Ironically, the belief that “good” soldiers use violence unwillingly promotes the idea that killing is the key to military legitimacy.

Military veneration produces soldiers who are attracted to service because it allows for “ state-sanctioned violence ”. In post-Vietnam “professional” Western militaries, violence is linked to status: the most elite soldier is one whose work “outside the wire” is dangerous and taboo.

In 2018, the Chief of the Australian Defence Force, Angus Campbell, had to issue a ban on “death symbols” among deployed troops who expressed their military identity with “violent, murderous and vigilante symbolism”.

Fascination with violence manifests in atrocities that perform brutality: stomping, beating, or “ crushing the life ” out of people; collecting body parts as “ trophies ” of military prowess; “blooding” new soldiers with the murder of a prisoner to achieve their “ first kill ”.

Blooding establishes killing as a rite of passage for a military elite, binding perpetrators into a code of silence. Crimes that perform brutality reinforce military veneration and fascination with violence: Australian perpetrators were “equated with being good and effective soldiers”.

National narratives that celebrate “good” soldiers as the pinnacle of national identity also shield perpetrators of war crimes. In Australia, a central theme of the Anzac legend is that Australian soldiers are innately superior to those of our allies. This narrative is frequently deployed to deflect allegations of Australian atrocities.

During an admission of Australian war crimes in Afghanistan, one soldier added that “whatever we do […] I can tell you the Brits and the US are far, far worse”. Another theme is the idea that Australian soldiers are so good at warfare – so formidable, yet honourable – that other groups recognise and respect them.

Media coverage of Australian war crimes in Afghanistan emphasised that Australians were “ feared red beards fighting a fierce but just campaign ”, idolising soldiers even as they reported alleged atrocities. The term “red beards” is actually used by Afghans as a pejorative for special forces across Western militaries, because of their mistreatment of civilians.

In this reverent cultural context, war crimes allegations in Australia just don’t seem to stick. Afghans have repeatedly accused Australian soldiers of atrocities throughout the 20-year War on Terror, but although “many atrocities have been documented in the media”, they “seem to disappear shortly after they surface”. Cultural mythologisation of Australian warfare allows soldiers to get away with murder.

Read more: The forgotten Australian veterans who opposed National Service and the Vietnam War

De-radicalising the armed forces

Soldier atrocities reflect the social and cultural fabric of their home nation, and crimes are shaped by military policies intended to prevent them. These factors are often interlinked; the process of the blooding of a soldier (cultural) requires both the dehumanisation of the local population (social) and the exploitation of Rules of Engagement to cover it up (policies).

What can we do about war crimes? The first step is acknowledging that they have happened throughout history, and that they are happening now.

Ongoing impunity suggests that these actions are not only considered justified in the context of war, but morally acceptable. Civilians and journalists should critically evaluate how the historical narratives they deploy around Australian war-fighting erase wrongdoing and perpetuate fascination with violence.

The military also needs to learn from the devastating results of dehumanising enemies in past conflicts. They need to urgently implement de-radicalisation in recruitment and training processes. This must go beyond ineffective cultural sensitivity training . Prospective defence members should be screened and soldiers continuously evaluated for prejudices.

These prejudices must be taken seriously, with the connection between prejudice and atrocity made explicit to soldiers. More broadly, Australians ought to question foreign policies that reflect and encourage racism in our communities, which will inevitably be reflected in our institutions.

To avoid future atrocities, military leaders must anticipate that strategies and tactics will be subverted in the field to commit crimes. They should explore “fog of war” incidents to understand how military policies can produce atrocities, drawing lessons from war crime allegations. Leaders should pay attention to how psychological operations against “the enemy” engender brutality against “the people”.

The history of war crimes shows us that atrocities are a likely outcome of warfare. The Brereton Report claimed that “few would have imagined some of our elite soldiers would engage in the conduct that has been described”. Yet for anyone who had paid attention to the unfolding War on Terror, the allegations came as no surprise.

If preventative actions seem beyond the scope of possibility, we must question whether our military can serve its purpose. The Brereton Report acknowledged that in Uruzgan province, where Australians were based with the mission of “improving the conditions of the Afghan people”, Australian Defence Force operations were counterproductive: “it is plain that [raids] were a terrifying experience for villagers.”

Violent counterinsurgencies engender deep resentments, undermining local authorities who cooperate with occupying forces and weakening resistance to insurgent movements. Long-contested territory in the War on Terror, Uruzgan was among the first provinces to fall to the Taliban in August 2021. The “fear and terror” our soldiers instilled in the local population surely played a role.

This is an edited extract from Lessons from History: Leading historians tackle Australia’s greatest challenges , edited by Carolyn Holbrook, Lyndon Megarrity and David Lowe (NewSouth).

• Australian politics
• Australian history
• Vietnam War
• Afghanistan War

Project Manager SSTP

Head of Evidence to Action

Supply Chain - Assistant/Associate Professor (Tenure-Track)

OzGrav Postdoctoral Research Fellow

Casual Facilitator: GERRIC Student Programs - Arts, Design and Architecture

Faculty Scholarship

The international criminal court: explaining war crimes investigations.

Amid the Russian invasion of Ukraine, international criminal prosecution expert Alex Whiting outlines the path from investigation to trial, and ultimately to justice

The chief prosecutor of the International Criminal Court, Karim Ahmad Khan, recently launched an investigation of war crimes and crimes against humanity allegedly committed amid Russia’s invasion of Ukraine. To understand how the investigation and potential prosecutions might proceed, Harvard Law Today spoke to Alex Whiting , a visiting professor of practice at Harvard Law and the current deputy specialist prosecutor at the Kosovo Specialist Prosecutor’s Office in The Hague. He previously served as a prosecutor at the International Criminal Court and also the International Criminal Tribunal for the Former Yugoslavia. Whiting says that despite the challenges of gathering evidence in a conflict zone and arresting those involved, international criminal investigations focus attention on the ongoing crimes and their victims, and ultimately send a message to perpetrators that “the arm of justice is long.” 

Harvard Law Today: You are speaking to us today from The Hague, monitoring the war in Ukraine from a much closer distance than we are in Cambridge, Massachusetts. How are you experiencing it?

Alex Whiting: Since this court was set up by the European Union, it is staffed almost entirely by people from European countries. And I can tell you that the war has hit people here very hard, both because of the work we do and our commitment to international law, and because we know what can happen and what is going to happen during this conflict. There is shock about the violation of international law. But also, for Europeans, this is right here, and it feels very close. Many people here have connections to people in Ukraine, have spent time there, have worked with people there, know people there. So, it feels very close, very personal, and very upsetting for people here.

HLT: Ukrainian President Volodymyr Zelinsky has accused Russia of war crimes. What is the process of investigating those allegations?

Whiting: Those allegations will be investigated by the International Criminal Court. The court has 123 member states, but neither Russia nor Ukraine is a party. However, back in 2015 when Russia invaded and annexed Crimea, Ukraine referred the conflict to the court for investigation. And there’s a provision in the Rome Statute — article 12.3 — which allows states that are not members of the court to refer a conflict and allegations of crimes to the court. But an investigation has to be triggered, and one way for that to happen is if one of the 123 member states asks the court to investigate. And it was just announced Thursday night that 39 states referred the Ukraine situation to the International Criminal Court for investigation. So, the prosecutor of that court announced that he is immediately opening up an investigation and will start collecting evidence. That investigation is also open into past crimes that could have occurred in the Crimea and eastern Ukraine.

HLT: Why is it important for the court to begin investigating now, rather than waiting for the conflict to end?

Whiting: Investigations and prosecutions are important even before cases are brought before the court because they bring attention to the crimes that are being committed, and to the victims of these of these crimes. So, even aside from what happens in court down the road, the act of investigating and framing what is happening and naming it is extremely important.

HLT: What types of crimes can the International Criminal Court investigate?

Whiting: T he International Criminal Court has jurisdiction over four types of crime: war crimes, crimes against humanity, genocide, and the crime of aggression. And there is no doubt that this is an act of aggression by Russia against Ukraine. However, the crime of aggression has a particular requirement, which is different from all the other crimes. It can only be prosecuted by the court if one member state commits an act of aggression against another. Since neither Russia nor Ukraine is a member, the crime of aggression here does not apply. So, the International Criminal Court is focusing on war crimes, and it will also consider crimes against humanity if they arise.

HLT: There is also an International Court of Justice. What role does it play?

Whiting: T he  International Criminal Court investigates and prosecutes international crimes committed by individuals. The International Court of Justice resolves disputes between states. Ukraine has brought an emergency case before that court, which will be heard next week. The focus of Ukraine’s complaint is that Russia has used as one of its justifications — I’ll say, phony justification — for invading Ukraine the allegation that there is a threat of genocide against Russian nationals living in Ukraine. Ukraine says this is nonsense. The ICJ should rule that there is no such threat and that assertion cannot be used as a justification for the invasion.

HLT: Who can the ICC prosecute? Only state leaders? Or everybody who was involved? And does it look at people from both sides? 

Whiting: With respect to whether it’s both sides, the answer to that is yes. Now, of course, at the moment the allegations of crimes are being made against the Russians invading Ukraine. But the ICC is neutral and will investigate all allegations of crimes.

With respect to who gets investigated, the ICC tries to focus always on those most responsible, so the big fish, whether those are political leaders or military leaders. However, all of the international courts, including the ad hoc tribunals and the International Criminal Court, have also been willing at times to prosecute mid-level actors who have been particularly instrumental in the commission of the crimes. So, in this case, when we’re thinking about potential targets in the Russian military or Russian political figures, it’s very possible that mid-level commanders who are operating in Ukraine could become the focus of investigations by the ICC.

HLT: Unlike previous conflicts, this war is happening at a time when everyone carries a recording device in their pocket. What role do you think video collected on cell phones will play as the ICC collects evidence?

Whiting: That’s a fascinating development in this field that I think ultimately will be a real game changer in the way these cases are investigated and prosecuted. The number one challenge faced by international courts, and by the ICC today in Ukraine, is getting access to the places where the alleged crimes are being committed, where the bombs are falling, and where people are being killed. It’s very difficult for investigators from The Hague to travel to those places to gather evidence while the conflict is still ongoing. So, more and more there is discussion about how first responders and people on the scene can take steps to preserve evidence. And one of the ways is using a cell phone to take videos, which allows for the possibility of gathering significant evidence in real time and preserving it.

However, it is enormously complicated for three reasons. The first and most important is there can be serious security and safety concerns for the people who are gathering the evidence, or people who might be captured in the videos. So, even while you’re collecting the evidence, you have to be thinking ahead to the day when you’re going to make that public, and there could be security concerns for the people connected with that collection. Secondly, there are very complicated issues about authenticating that evidence; was that video really taken on that day at that location? And the third thing is the organizational challenge of managing the massive amount of information pouring out of the country. So, there is real promise here. And we’ve already seen videos coming out of Ukraine which suggest potential war crimes having been committed. But it’s an extraordinarily challenging investigation to manage.

HLT: How long do these investigations take? Is there a statute of limitations?

Whiting: There is no statute of limitations, which is the good news. But the investigation can sometimes be lengthy, just because of the challenges of collecting the evidence while the conflict is ongoing in real time, especially against senior political or military leaders. Another cause of significant delay is trying to make the arrest. So, for example, in the Ukraine case, if cases were brought against Russian political or military leaders, it might take a very long time before any of those people, who would presumably be in Russia, could ever be arrested. So, these cases can sometimes start moving within a year or two, but sometimes it takes many, many years before they come to court. Even when they do take a long time — and let’s remember that it was only a few years ago that we were still trying cases from World War II in Germany — justice still is served and a message is sent to perpetrators today that the arm of justice is long.

HLT: What are the possible punishments?

Whiting: Although there is a notional maximum penalty of 30 years at the International Criminal Court, there’s a provision that allows for an upward departure in particularly egregious cases. Trying to conceive of a sentencing scheme for these sorts of cases is complicated. And you can see quite a range of sentences, from 10 to 15 years up to life imprisonment.

HLT: How would you evaluate the success of the international justice system, and what can or should be done to strengthen it?

Whiting:  We have to keep in mind that this is a very new project. The first international tribunal, of course, was at Nuremberg. But after Nuremberg and the Tokyo courts, there was nothing for 50 years until the Yugoslavia court in 1993. So, it’s been less than 30 years in the modern era that we’ve been at this project. If in 1993, you said to people that we were on the cusp of an era when there would be multiple ad hoc tribunals and a permanent international criminal court and that there’d be accused persons, trials, convictions, acquittals, and sentencings, and that some of the top leaders in some of these conflicts would be brought to justice, nobody would have believed you. And so, in some ways, this project has wildly exceeded any expectations.

However, if you do this work, you feel every day the frustrations and the challenges and the stresses as well as the limitations of the powers that these courts have been granted. It’s never enough. It’s incomplete. It’s just a beginning. There are ups and downs. And we have successes and failures. But I always hope that we’re moving towards a better future that we’re moving towards this becoming a norm. What do we need for success? The main thing that we need for success is for all states in the world to support this kind of international justice, by joining the ICC and actively cooperating in and supporting these investigations and prosecutions.

HLT: Is there anything you’d like to add?

Whiting: The one thing I would come back to is the point about aggression, because aggression was actually the main crime at Nuremberg. None of the modern tribunals that came after have had jurisdiction over the crime of aggression. And the International Criminal Court only got jurisdiction over the crime of aggression in 2018. Only 43 of the 123 member states have ratified that additional crime. But today, with the invasion of Ukraine by Russia, we see very dramatically why the crime of aggression is so important. And we have renewed the discussion of how we might do more to be able to prosecute it. So, these events with Russia and Ukraine link back to World War II and Nuremberg with respect to the crime of aggression.

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