The FAQs: What You Should Know About War Crimes

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What just happened?

Last week President Trump intervened in the case of three U.S. service members convicted of war crimes. Trump granted full pardons to Army 1st Lt. Clint Lorance and Army Maj. Mathew Golsteyn, and restored the rank of Navy SEAL Eddie R. Gallagher, who had been demoted.

Lorance was found guilty in 2013 of second-degree murder for ordering his men to fire on three men on a motorcycle in Afghanistan. Gallagher was demoted after being found guilty for posing for a photo with a casualty. Golsteyn was convicted of murdering a released Afghan detainee and conspiring with others to destroy the body. Gallagher had faced a court-martial for premeditated murder and attempted murder, but was acquitted.

According to CNN, Defense Secretary Mark Esper and other senior military leaders had told the president that a presidential pardon could potentially damage the integrity of the military judicial system, the ability of military leaders to ensure good order and discipline, and the confidence of U.S. allies and partners who host U.S. troops.

What are war crimes?

War crimes are those violations of international humanitarian law that incur individual criminal responsibility under international law. The violation can be a breach of either standards adopted by treaty or of customary international law (i.e., an aspect of international law involving the principle of custom).

What actions constitute a war crime?

There is no single document in international law that lists all actions that can be classified as war crimes. However, such crimes can be found in both international humanitarian law and international criminal law treaties, as well as in international customary law.

In general, war crimes can be classified under four broad categories:

(1) war crimes against persons requiring particular protection (such as prisoners of war);

(2) war crimes against those providing humanitarian assistance and peacekeeping operations;

(3) war crimes against property and other rights;

(4) prohibited methods of warfare; and

(5) prohibited means of warfare.

Examples of prohibited acts, according to the UN, include: murder; mutilation, cruel treatment and torture; taking of hostages; intentionally directing attacks against the civilian population; intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments, or hospitals; pillaging; rape, sexual slavery, forced pregnancy, or any other form of sexual violence; conscripting or enlisting children younger than 15 years into armed forces or groups or using them to participate actively in hostilities.

How are war crimes distinguished from other criminal acts?

To be a war crime, an act must have a contextual and a mental element.

The contextual element is that the conduct must take place in an armed conflict, whether national (i.e., civil war) or international. The mental element is that the action must have been done with knowledge of both the individual act and also the contextual element.

For example, if a U.S. soldier murders a fellow U.S. soldier for personal reasons, the crime would not be a war crime—even if the act was committed during a time of armed conflict. But if a soldier murdered a prisoner of war, it would be a war crime.

How do war crimes differ from crimes against humanity?

There are four elements that distinguish war crimes from crimes against humanity, international lawyer Guénaél Mettraux notes:

(1) War crimes may only be committed during an armed conflict, while crimes against humanity can be committed in times of war or peace.

(2) Crimes against humanity may be committed against nationals of any state, including that state’s own nationals, if the state takes part in the attack.

(3) Crimes against humanity may only be committed against civilians, whereas war crimes may be committed against both civilians and also enemy combatants.

(4) While a crime against humanity must be committed as part of a widespread or systematic attack upon a civilian population, there is no such requirement for a war crime. An isolated act could qualify as a war crime, but not as a crime against humanity.

Additionally, while all of the underlying offenses which could qualify as crimes against humanity would also amount, all other conditions being met, to war crimes, the opposite is not necessarily true.

What is the Christian position on war crimes?

Under the biblical view of justice, as outlined in the Christian tradition of just war theory, war crimes should never be condoned or tolerated.

This just war tradition began in the fifth century with Augustine, whose view of justice in warfare can be summed up by his statement: “We do not seek peace in order to be at war, but we go to war that we may have peace. Be peaceful, therefore, in warring, so that you may vanquish those whom you war against, and bring them to the prosperity of peace.” In the 13th century, Thomas Aquinas built on and expanded Augustine’s thought. Later Christian thinkers have added nuance and commentary on the just war tradition, but the main principles we still use today are derived from Augustine and Aquinas.

The just war thinking of Augustine and Aquinas is rooted in Romans 13:3-4:

For rulers are not a terror to good conduct, but to bad. Do you want to be unafraid of the authority? Do what is good, and you will have its approval. For it is God’s servant for your good. But if you do wrong, be afraid, because it does not carry the sword for no reason. For it is God’s servant, an avenger that brings wrath on the one who does wrong.

Just war theory includes three main areas: jus ad bellum (the moral requirement for going to war), jus in bello (the moral requirements for waging war), and jus post bellum (moral requirements after warfare is concluded). As Marine Corps Maj. Wade C. Reaves explains, “The US and the international community derive [rules of engagement] from the theory Jus In Bello, the morally proper conduct of war, which provides guidance on how combatants will engage the enemy and non-combatants in hostile situations.” War crimes thus generally fall under the area of jus in bello, since they often entail prohibited means or methods of warfare.

For example, the first rule of just warfare is that we do not deliberately target or kill the innocent. In this context, the term innocence refers to whether individuals are able cause direct harm—whether willingly or reluctantly—either to us or to our military forces engaged in just warfare. Such people are considered “noncombatants” and are immune from attack because the meet the qualification of innocence. While the innocent may be harmed because of our engaging in warfare, it must not be our intent.

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