War Crimes: Definition, Elements, and Examples
- Edmarverson A. Santos
- 1 day ago
- 19 min read
Introduction
War crimes are serious violations of international humanitarian law, the body of rules governing armed conflict, for which individuals can be prosecuted and punished (ICRC, 2005). A soldier who executes a prisoner, a commander who orders an attack on an undefended town, an official who deports civilians from occupied territory: each can be held criminally responsible, whatever the rank.
The term has a precise legal meaning, and public debate uses it far more loosely than the law allows. Not every civilian death, every destroyed building, or even every violation of international humanitarian law amounts to a war crime; criminal liability attaches only where specific legal elements are proved with evidence.
This article examines the legal definition of war crimes, their constituent elements, the principal offenses, the rules of individual and command responsibility, current proceedings, and the forums for prosecution.
1. What Are War Crimes?
A war crime is a serious violation of the laws and customs of war that entails individual criminal responsibility. The violation must be serious, breaching a rule that protects important values with grave consequences for the victim, and international law must treat the breach as a crime of the individual, by treaty or custom (ICRC, 2005; Prosecutor v Tadić, 1995).
The legal category is narrower than its everyday use, where the phrase often stands in for wartime brutality generally. It excludes lawful acts of war, such as attacking combatants, and breaches that are real but not criminal, which engage state responsibility, not individual liability.
2. Legal Foundations
War crimes law grew from two streams: the Hague Conventions of 1899 and 1907 regulated the means and methods of warfare, while the Geneva stream protected persons in enemy hands. The Nuremberg Charter of 1945 confirmed that individuals could be tried and punished for violations of the laws and customs of war (Wilson, 2022).
The four Geneva Conventions of 1949, ratified by every state, remain the core (ICRC, 2016). Each designates certain violations against protected persons or property in international armed conflict as grave breaches, among them wilful killing, torture, and unlawful deportation. Each High Contracting Party must search for alleged offenders and try them regardless of nationality, or hand them to another party that has made out a prima facie case; the obligation covers grave breaches in international conflict, not every war crime (Geneva Conventions, 1949).
Common Article 3, identical in all four conventions, sets a minimum standard for non-international conflict, protecting those not taking active part in hostilities. The Additional Protocols of 1977 expanded protection in both categories (Additional Protocols, 1977), and customary international humanitarian law binds all parties to a conflict, including non-state armed groups, although the content of each customary rule must be established and can differ between the two categories (ICRC, 2005).
Article 8 of the Rome Statute of the International Criminal Court (ICC) contains the most detailed modern list, spanning grave breaches, serious violations of Common Article 3, and other serious violations in both types of conflict (United Nations, 1998). Article 8 is the ICC's jurisdictional catalogue, not a complete inventory: customary law and national codes recognize war crimes beyond its text, though the principle of legality lets a court apply only the offenses valid within its jurisdiction. The Elements of Crimes, adopted by the Assembly of States Parties, set out the material and mental elements of each offense (ICC, 2011; Dörmann, 2003).
3. Elements of a War Crime
Most prosecutions must establish the following:
an armed conflict existed at the time of the conduct;
the conflict was international or non-international, and the charged provision applies to that type of conflict;
the conduct was closely connected to the armed conflict (the nexus);
the victim or object had protected status, where the crime requires it;
the perpetrator committed the specific prohibited act with the intent or knowledge that the offense demands (ICC, 2011).
The nexus separates war crimes from ordinary crime in wartime. The International Criminal Tribunal for the former Yugoslavia (ICTY) held in Kunarac that the armed conflict must play a substantial part in the perpetrator's ability to commit the crime, the decision to commit it, its manner, or its purpose (Prosecutor v Kunarac et al., 2002).
Awareness of the facts establishing the armed conflict and the victim's protected status is enough, such as knowing that a detainee had surrendered; no legal appraisal of the conflict is required (ICC, 2011).
The default rule at the ICC requires intent and knowledge, but some offenses carry their own standard: for child recruitment it suffices that the perpetrator knew or should have known the child was under fifteen, and ICTY case law read wilful killing to include reckless disregard for life, not mere carelessness (United Nations, 1998; Prosecutor v Delalić et al., 1998).
4. International and Non-International Armed Conflicts
An international armed conflict exists whenever there is a resort to armed force between states, and includes military occupation even where it meets no resistance. A non-international armed conflict exists where protracted armed violence takes place between governmental authorities and organized armed groups, or between such groups within a state (Prosecutor v Tadić, 1995). Intensity and organization distinguish it from riots or isolated terrorism.
Classification decides which provisions are available. The grave-breaches regime applies only in international conflict. Non-international conflict is governed by Common Article 3, Articles 8(2)(c) and 8(2)(e) of the Rome Statute, Additional Protocol II where its conditions of application are met, and applicable customary law (ICLS, 2011). Article 8 does not reproduce an identical list of offenses for the two categories, so the charged crime must be matched to the correct classification.
Members and leaders of non-state armed groups may incur individual criminal responsibility, but the applicable offense depends on the classification of the conflict, the particular rule breached, the court's statute, and the person's own conduct and mode of liability. The group itself is not criminally convicted.
5. Categories and Examples of War Crimes
5.1 Violence Against Protected Persons
Wilful killing, in international conflict, and murder, under Common Article 3, punish the killing of protected persons: civilians in enemy hands, prisoners of war, the wounded and sick, and fighters who have surrendered. Torture requires the intentional infliction of severe pain or suffering for a purpose such as obtaining information, punishment, or intimidation. Hostage-taking and sentencing without a fair trial fall in the same family (United Nations, 1998). Because killing combatants in combat is lawful, protected status must be proved, not assumed.
5.2 Unlawful Attacks in the Conduct of Hostilities
Directing attacks against civilians is criminal in both categories of conflict under the applicable provisions. Two further offenses apply expressly to international armed conflict: attacking civilian objects (Article 8(2)(b)(ii)), and launching an attack known to cause clearly excessive incidental harm (Article 8(2)(b)(iv)) (United Nations, 1998). Attacks on civilian objects remain prohibited in non-international conflict, but a prosecution must rest on an offense available under the governing statute, customary law recognized by the forum, or national law.
Medical units and personnel, humanitarian relief workers, and peacekeepers entitled to civilian protection receive express additional protection.
5.3 Sexual Violence and Child Soldiers
Rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization are war crimes in both categories of conflict (United Nations, 1998). Conscripting or enlisting children under fifteen, or using them to participate actively in hostilities, is a separate offense reaching a group's treatment of children in its own ranks (Prosecutor v Lubanga, 2012).
5.4 Property, Pillage, and Cultural Heritage
Destroying or seizing enemy property is criminal unless imperatively demanded by the necessities of war. Pillage is the appropriation of property without the owner's consent, intended, under the ICC Elements of Crimes, for private or personal use (ICC, 2011). It differs from requisition, seizure, or confiscation permitted by the law of armed conflict, so not every irregular taking is criminal.
Intentionally attacking buildings dedicated to religion, education, art, or historic monuments, provided they are not military objectives, is a distinct crime (United Nations, 1998). Cultural property ordinarily remains protected: an attack is lawful only if the object meets the military-objective test, special treaty regimes add conditions of necessity, warning, or waiver, and distinction, proportionality, and precautions apply even where special protection lapses (ICRC, 2005).
5.5 Deportation, Starvation, and Forced Displacement
Unlawful deportation or transfer of protected persons is a grave breach, and an occupying power may not transfer its own population into occupied territory (Geneva Conventions, 1949). Ordering the displacement of civilians in non-international conflict is criminal unless their security or imperative military reasons demand it. Starvation of civilians as a method of warfare, including wilfully impeding relief supplies, is a war crime in international conflict, extended by a 2019 amendment to non-international conflict for states accepting it (ICC, 2019).
Sieges and blockades are not prohibited as such, but they remain governed by distinction, proportionality, precautions, evacuation rules, and relief obligations. The starvation offense requires proof of its own elements, including the intent to starve civilians as a method of warfare; an unlawful obstruction of relief is not automatically that narrower crime.
5.6 Prohibited Weapons
The Rome Statute as adopted criminalizes employing poison, poisonous gases, and expanding bullets in international conflict (United Nations, 1998); 2010 amendments extended those offenses to non-international conflict (ICC, 2010), and 2017 amendments added biological or toxin weapons, fragments undetectable by X-ray, and blinding lasers (ICC, 2017). These operate under Article 121(5): they bind only the states parties that accept them and do not apply uniformly in every ICC situation.
Few weapons are named. Many controversial ones, including incendiary and cluster munitions for states outside the relevant treaties, are not automatically criminal to use, and an indiscriminate attack is not a standalone Rome Statute charge. Such conduct is prosecuted through specifically defined offenses, such as attacking civilians or civilian objects or a clearly disproportionate attack.
The Rome Statute also criminalizes using protected persons as shields in international conflict. It punishes killing or wounding treacherously or by perfidy, which requires the prohibited result, and the improper use of a flag of truce, enemy or United Nations insignia, or the Geneva emblems where it causes death or serious injury. Declaring that no quarter will be given, and biological or medical experiments, are further offenses; unlawful confinement belongs principally to the grave-breaches regime in international conflict. Availability depends on the classification of the conflict, the governing instrument, and the principle of legality.
6. Classic Judicial Examples
Duško Tadić, a Bosnian Serb tried over abuses in the Prijedor camps, was the first defendant tried by the ICTY, in the first international war-crimes trial since Nuremberg and Tokyo. The 1995 jurisdiction decision in his case defined armed conflict and confirmed that war crimes can occur in internal conflicts; he was convicted in 1997 (Prosecutor v Tadić, 1995; Prosecutor v Tadić, 1997).
The Čelebići case concerned a Bosnian prison camp where Serb detainees were killed, tortured, and raped. The 1998 trial judgment convicted the camp commander and guards, treated rape as torture, and gave modern law its foundational analysis of command responsibility; Zejnil Delalić was acquitted for lack of effective control (Prosecutor v Delalić et al., 1998).
Kunarac confirmed that wartime sexual violence is prosecutable, and its appeal settled the nexus test (Prosecutor v Kunarac et al., 2002). Thomas Lubanga was the subject of the ICC's first trial judgment in 2012, convicted of conscripting, enlisting, and using child soldiers (Prosecutor v Lubanga, 2012).
Ahmad Al Faqi Al Mahdi pleaded guilty at the ICC in 2016 to directing attacks on historic mausoleums in Timbuktu during the 2012 occupation of northern Mali, the Court's first conviction for cultural property (Prosecutor v Al Mahdi, 2016). Bosco Ntaganda was convicted in 2019 on eighteen counts in the Democratic Republic of the Congo, including rape and sexual slavery of child soldiers in his militia; the thirty-year sentence was upheld in 2021 (Prosecutor v Ntaganda, 2019; Prosecutor v Ntaganda, 2021).
Charles Taylor, the former president of Liberia, was convicted in 2012 by the Special Court for Sierra Leone for aiding and abetting and planning rebel crimes in Sierra Leone's civil war, the first former head of state convicted by an international tribunal since Nuremberg; his fifty-year sentence was affirmed on appeal in 2013 (Prosecutor v Taylor, 2012; Prosecutor v Taylor, 2013).
7. Current Allegations, Warrants, and Proceedings
The examples below sit at different procedural stages. An investigative body may find reasonable grounds to believe war crimes occurred, but neither those findings nor arrest warrants establish guilt; only a competent criminal court may convict an individual.
In the international armed conflict between Russia and Ukraine, the ICC issued arrest warrants in March 2023 for President Vladimir Putin and Commissioner Maria Lvova-Belova over the alleged unlawful deportation of Ukrainian children to Russia (ICC, 2023). Further warrants followed in 2024 over strikes on Ukraine's electric infrastructure, where the judges found reasonable grounds to believe they were attacks on civilian objects causing clearly excessive incidental harm, including against Sergei Shoigu and Valery Gerasimov (ICC, 2026b). All six suspects remain at large.
The UN Independent International Commission of Inquiry on Ukraine, in its March 2026 report, verified the deportation or transfer of 1,205 children and concluded that the deportation and forcible transfer of children constitute war crimes and crimes against humanity. It also concluded that the enforced disappearance of the deported or transferred children is a crime against humanity, and it found the war crime of unjustifiable delay in their repatriation (Independent International Commission of Inquiry on Ukraine, 2026).
Ukraine became a party to the Rome Statute on 1 January 2025, with a declaration under Article 124 excluding, for seven years, jurisdiction over Article 8 crimes likely committed by its own nationals (United Nations, 2024). Its precise interaction with the jurisdiction the Court already exercises under Ukraine's 2014 and 2015 territorial declarations has not yet been authoritatively resolved by the ICC.
In the conflict between Israel and Hamas, Pre-Trial Chamber I issued arrest warrants on 21 November 2024 for Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant, finding reasonable grounds to believe they bear responsibility for the war crime of starvation as a method of warfare and for intentionally directing attacks against civilians, allegations both reject (ICC, 2024). A same-day warrant against Hamas commander Mohammed Deif, over alleged murder, extermination, sexual violence, and hostage-taking on 7 October 2023, was terminated once his death was confirmed (ICC, 2025c).
Israel, a non-party, disputes the Court's jurisdiction. In April 2025 the Appeals Chamber reversed the Pre-Trial Chamber's dismissal of that challenge as premature and remanded it (ICC, 2025a); in July 2025 the Pre-Trial Chamber refused Israel's request to withdraw the warrants (ICC, 2025b), which remained outstanding in the Court's May 2026 official record (ICC, 2026a). No trial or conviction has occurred.
Sudan shows the accountability process at two stages. The ICC convicted Ali Muhammad Ali Abd-Al-Rahman, a Janjaweed leader known as Ali Kushayb, on 6 October 2025 on 27 counts of war crimes and crimes against humanity in Darfur in 2003 and 2004, and sentenced him to twenty years on 9 December 2025 (Prosecutor v Abd-Al-Rahman, 2025). The Defence has appealed the conviction, and both sides have appealed the sentence; the appeals remained pending as of 20 July 2026.
The Prosecutor's July 2026 report to the UN Security Council states that the investigation into renewed violence in Darfur since 2023, including reported mass killings during the fall of El Fasher, remains active; those incidents are allegations under investigation (ICC, 2026c).
8. What Is Not Automatically a War Crime?
Incidental civilian harm does not by itself make an attack unlawful or criminal. The intended target must be a military objective, and the attack must respect distinction, proportionality, and feasible precautions, with further rules protecting specially protected persons and objects. Directing attacks against civilians and launching a clearly excessive attack are among the gravest offenses, but not the only bases of responsibility; a conviction requires proof of the elements and mental state of a specific offense (United Nations, 1998).
Infrastructure such as power stations, bridges, and communications networks often serves both civilian and military functions, and its status must be assessed attack by attack. Hospitals and other medical units carry special protection beyond their civilian character, which ceases only where a unit is used, outside its humanitarian function, for acts harmful to the enemy, and normally only after an unheeded warning and reasonable time limit. Even then, distinction, proportionality, and precautions govern any attack, and criminal responsibility requires the offense's mental element (Geneva Conventions, 1949).
Schools are ordinarily civilian objects. One becomes a military objective only where its nature, location, purpose, or use makes an effective contribution to military action and its destruction, capture, or neutralization offers a definite military advantage in the circumstances at the time. A party's mere assertion of military use does not make an attack lawful.
Targeting errors are assessed against the information reasonably available at the time and the duty to take feasible precautions. A genuine mistake of fact can negate the intent or knowledge a particular offense requires, and with it that charge, but calling an error honest does not by itself defeat liability: the same facts may disclose another violation, a failure of precautions, or state responsibility.
Nor is every breach of humanitarian law criminal. Many violations engage the responsibility of the state; a state is never criminally convicted, and proceedings against one, for instance before the International Court of Justice, need an independent jurisdictional basis, though the same facts can ground both forms of responsibility. Occupation is a regulated legal condition, not a crime in itself, though specific acts within it, such as transferring the occupier's population into occupied territory, are criminal. None of these distinctions minimizes suffering; they decide which forum, defendant, and remedy the law provides.
9. War Crimes and Other International Crimes
Genocide requires specific intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such (United Nations, 1948). Crimes against humanity require that acts such as murder, torture, or deportation form part of a widespread or systematic attack against a civilian population, committed with knowledge of the attack and pursuant to a state or organizational policy (United Nations, 1998). The crime of aggression requires an act that, by its character, gravity, and scale, is a manifest violation of the UN Charter, and may be committed only by a person able effectively to control or direct a state's political or military action (United Nations, 1998).
War crimes are distinct because of the armed-conflict nexus: no conflict, no war crime. A massacre of civilians during a conflict may be a war crime, a crime against humanity if part of a widespread or systematic attack, and genocide if the special intent exists. Whether cumulative convictions may be entered depends on the tribunal's statute and case law, including whether each offense contains a materially distinct element; they do not follow automatically (Cryer et al., 2019).
10. Individual and Command Responsibility
Under Article 25 of the Rome Statute, a person may be responsible for committing a crime individually or jointly, ordering it, soliciting or inducing it, aiding and abetting it, or intentionally contributing to a group acting with a common purpose (United Nations, 1998). Nor is it confined to soldiers: civilians, officials, and political leaders may be responsible where the offense, the nexus, the mental element, and a recognized mode of liability are proved.
Command responsibility is a separate doctrine: a commander is not automatically guilty of subordinates' crimes. Under Article 28(a) of the Rome Statute, a military commander, or a person effectively acting as one, is liable where forces under his or her effective command and control committed crimes resulting from a failure to exercise control properly, the commander knew or should have known of the crimes, and no necessary and reasonable measures were taken to prevent or repress them or submit them to the competent authorities (United Nations, 1998).
Article 28(b) holds civilian superiors to a different standard. It requires effective authority and control, and either actual knowledge or the conscious disregard of information clearly indicating the crimes. The crimes must concern activities within the superior's effective responsibility and control, and the superior must have failed to take reasonable measures within their power to prevent or repress them or to submit the matter to the competent authorities, the crimes having resulted from that failure. The military should-have-known test does not extend to civilian superiors. The Čelebići trial judgment supplied the doctrine's modern foundation, and its acquittal of Zejnil Delalić for lack of effective control shows the limits in practice (Prosecutor v Delalić et al., 1998).
Official capacity, including as a head of state or government official, does not exempt a person from criminal responsibility before the ICC under Article 27 (United Nations, 1998). That provision governs proceedings before the Court itself; it does not by itself resolve immunity before national courts or every cooperation dispute involving non-party states.
11. Investigation and Prosecution of War Crimes
National courts remain the principal forum, prosecuting on territorial, nationality, passive-personality, protective, universal, or treaty-based grounds where their law allows. For grave breaches in an international conflict, the Geneva Conventions oblige every party to search for suspects and try them or hand them to another party for trial (Geneva Conventions, 1949). For other war crimes, universal jurisdiction is permissive, and many states have legislated for it. Between these poles sit hybrid and ad hoc tribunals, such as the Special Court for Sierra Leone and those for the former Yugoslavia and Rwanda.
The ICC has no automatic jurisdiction over every conflict. Under Article 12 it can act only where the crime occurred on the territory of a state party, the suspect is a national of one, or a non-party state accepts jurisdiction by declaration under Article 12(3). A situation reaches the Court in three ways: a Security Council referral under Article 13(b), a state referral under Articles 13(a) and 14, or a proprio motu investigation under Articles 13(c) and 15.
The Court has an absolute temporal limit of 1 July 2002. For a state joining later, jurisdiction normally begins when the Statute enters into force for that state, unless an Article 12(3) declaration applies. A Security Council referral does not depend on entry into force for the territorial state, but still cannot reach conduct before 1 July 2002 (United Nations, 1998).
Jurisdiction is distinct from admissibility. Under complementarity, a case is inadmissible where a state with jurisdiction is investigating or prosecuting it, unless that state is unwilling or unable genuinely to carry out the investigation or prosecution; a case must in any event be sufficiently grave.
Proof presents its own obstacles: reaching conflict zones, protecting witnesses, authenticating digital and open-source material, reconstructing chains of command, establishing intent, and separating evidence from misinformation, much of it preserved years before any trial as physical evidence and witnesses are lost (ICLS, 2011).
Finally, Article 29 of the Rome Statute excludes any statute of limitations for crimes within the Court's jurisdiction, and a 1968 convention imposes the same rule on its parties, though national legislation is not uniform (United Nations, 1968; United Nations, 1998).
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Conclusion
War crimes are serious violations of international humanitarian law, committed in connection with an international or non-international armed conflict, for which individuals bear responsibility. The term is not a synonym for brutality, civilian suffering, an unpopular war, or even every unlawful attack.
A legal determination demands attention to the existence and classification of the conflict, the applicable rule, the protected status of the person or object, the prohibited conduct, the nexus, the required intent or knowledge, reliable evidence, and a court with jurisdiction. When one element fails, the charge fails with it.
That discipline is the source of the term's force, not a weakness: because a conviction survives this scrutiny, judgments such as Kunarac, Lubanga, and Taylor fix responsibility on named individuals as no press release can. It is the proof, not the label, that turns an atrocity into a punishable crime.
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