Study On The Criminal Responsibility Of War Crimes

War is military fight for some kinds of politic or economic purposes between two antagonistic sides. Considering the tremendous devastating power of war, at the same time forbidding illegally using of force, the laws of war try to rule the particular fighting behaviors of warring sides and stipulate that grave breaches of the laws and customs of war are crimes and should be criminal responsible because of the reality that war can not be entirely eradicated. In the Charter of the Nuremberg Military Tribunal, war crimes were defined as violations of the laws or customs of war for the first time in international legal documents. Since 90s of twentieth century, serious violation of the laws and customs of war, which is the essential character of the concept of war crimes, didn’t changed obviously, but the content of war crimes has changed a lot following the changing of the form of war and the laws and customs of war themselves, and the concept of war crimes applies to non-international armed conflicts too. There are differences between war crimes, the crime of aggression, the crime of genocide, and the crime against humanity.The attributes of war crimes is very special. As a result, the responsibility initiated by war crimes is multiple. On one hand, the principle of individual criminal responsibility is the footstone of modern international criminal law, and individual criminal liability is the inevitable consequence of war crimes. On the other hand, behaviors of the members of armed forces in the war can be attributed to States typically. According to legal system of state responsibility, war crimes will entail international responsibility to States. At present time, the structure of international community is equal-position style, and it is difficult for States to shoulder criminal responsibility for war crimes both theoretically and practically. The responsibility of war crimes of States should still be regulated by the legal system of State responsibility. The forms of the responsibility of war crimes of States include compensation, satisfaction, reparation etc, which have no substantial difference with traditional international States responsibility. In recent years, individual civil liability of war crimes is coming up in order to enhance protection of victims of war crimes.International criminal law is a law department which integrates substantive law and procedure law. We also ought to abide by some substantive and procedural criminal principles when we decide whether or not a man commit war crimes and should shoulder criminal liability, such as legality doctrine, principle of suiting punishment to crimes, the principle of protection of human rights etc. Since the sources of the law of war include both treaties and conventions and the degree of codification of the law of war can’t be compatible to domestic law, the above criminal principles such as legality doctrine and the principle of protection of human rights were established later than they were in domestic law. And the notion of the above criminal principles in international criminal law is different a little from in domestic criminal law. War crimes are committed mainly by army members under warring conditions, and some special principles such as the principle of irrelevance of official capacity, the doctrine of command responsibility, non-applicability of statute of limitations are of great importance in judging the criminal responsibility of war crimes accurately. A person may invoke excuses such as justified self-defense to exclude criminal liability.War criminals may be prosecuted by international or national approaches, but national approaches are basic and main means. Prosecuting war crimes is not only a legal right but also an obligation based on international treaty and convention of states. State’s judicature system is more perfect and sufficient and prosecuting war crimes by national courts may accord with the principle of sovereignty and the principle of convenience. But under warring conditions, national judicature system may be inefficient or event incompetent, and the objectivity and equity of trials are also apt to be interfered by politic factors. States may exercise jurisdiction of war crimes according territorial principle, nationality principle, passive nationality principle, protective principle and universal principle. Proper national legislations about war crimes are important premise for a State to prosecute war criminals effectively and impartially and an efficient way to exclude interference from international courts.As international approaches are concerned, there are three kinds of international tribunals to prosecute war crimes:ad hoc international tribunals, permanent international courts and so-called mixed courts. In the period of World WarⅡ,the standard to differentiate the jurisdiction between the two international military tribunals and national courts is the seriousness of the war crimes and the clarity of the violating place, the Nuremberg and Tokyo Tribunals, which were dismissed after finishing the trials of main war criminals, had no obligation to supervise and intervene the prosecution of national courts. Under such jurisdiction relationship, national courts were deprived of jurisdiction over main war criminals entirely and indulged to try secondary criminals by themselves, which is harmful to the sufficient and impartial trials of war crimes. The ICTY and the ICTR not only have the priority to national judicature system, which enable international tribunals to order national courts to obey their jurisdiction at any phase, but also have the power to supervise and judge the prosecution of domestic judicature system, which enable the ICTY and the ICTR not be subject to principle of ne bis idem and try the cases tried already by national courts again under special circumstance. This design of jurisdiction relationship between international tribunals and national courts, which emphasize the priority and supervising effects of international tribunals, was based on the authority of the Security Council of the United Nations, but is apt to conflict with national judicature sovereignty and can’t be applied universally. At the same time of adhering to the complement principle, the ICC retains to some extent the supervising right but abandoned the priority over national judicature system, which optimized the jurisdiction relationship between ICC and national judicature system. The practical efficacy of the prosecution of the ICC may be restricted by the willing and degree of cooperation of Nations, and the opposition or even boycotting to the ICC by some countries is an important factor affecting the efficacy of the ICC too. In recent years, mixed criminal court has been a new way of international elements for war criminals prosecution. Since the ICC can exercise jurisdiction only over war crimes occurred after July 1 2002 or after the time a country become the State Party, and war crimes shall not be subject to any statue of limitations, furthermore the ICC may confront some obstacles in exercising jurisdiction over war crimes in internal armed conflicts, mixed court is still a valuable approach to war crimes prosecution.