What Is a War Crime? (And Why Almost No One Gets Prosecuted)
Quick Answer
What is a war crime and who gets prosecuted for one? A war crime is a violation of the laws of armed conflict as defined primarily by the four Geneva Conventions of 1949 and their additional protocols. War crimes include targeting civilians, using prohibited weapons, torture, and executing prisoners of war. The International Criminal Court, established in 2002, is the primary body responsible for prosecution, but the United States, China, Russia, and Israel are not members. In practice, war crime prosecution has overwhelmingly fallen on the losing side of conflicts or on low-level soldiers, while commanders and heads of state have faced accountability rarely and inconsistently.
William Calley ordered the massacre of at least 109 unarmed Vietnamese civilians at My Lai in March 1968. Men, women, children. A ditch. He was the only person convicted for it. He served three and a half years under house arrest in his own apartment and then opened a jewelry store in Columbus, Georgia.
This is what war crime accountability looks like in practice. The rules are real. The enforcement is optional. The gap between those two things has a very long history.
The rules were written in 1859
Henry Dunant was a Swiss businessman who showed up at the Battle of Solferino in northern Italy in June 1859 looking to meet Napoleon III. What he found instead was 40,000 dead and wounded soldiers lying in the fields with almost no medical care. He organized local civilians to help. Then he went home and wrote a book about it.
That book led directly to the founding of the Red Cross in 1863 and the first Geneva Convention in 1864, which established basic protections for wounded soldiers and the medical personnel treating them. It was the first time the international community had agreed, on paper, that there were things you were not allowed to do in a war.
The framework expanded over the next 80 years. The 1929 Geneva Convention added protections for prisoners of war. Then came the Second World War, which violated essentially all of it. When it ended, the four Geneva Conventions of 1949 were written as a response to what had just happened: protections for wounded soldiers, shipwrecked sailors, prisoners of war, and, for the first time, civilians. These four conventions, with their additional protocols, are still the foundation of international humanitarian law today. Every country in the world has ratified them. Every country in the world has violated them.
Nuremberg was supposed to set the precedent
The Nuremberg Trials ran from November 1945 to October 1946. Twenty-four senior Nazi officials were tried before an international military tribunal. Twelve were sentenced to death. Seven received prison sentences. The legal framework they established was genuinely new: for the first time, individuals could be held criminally responsible for crimes against peace, war crimes, and crimes against humanity, regardless of their official position. "I was following orders" was explicitly ruled out as a defense.
It was a legitimate legal precedent. It established that authority does not protect you from accountability for atrocities. Then the world spent the next 75 years mostly ignoring it.
The Tokyo Trials ran parallel to Nuremberg and convicted 25 Japanese military and government officials. Seven were executed. The pattern in both cases was the same: the losing side got prosecuted. The Allied forces, who had firebombed Dresden, Tokyo, and Hiroshima, did not.
The term for this is victor's justice. The laws exist. Who applies them depends entirely on who won.
The court was built. Then the powerful countries left.
The International Criminal Court was established by the Rome Statute, which was adopted in 1998 and entered into force in 2002. It was designed to be a permanent institution that could prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, specifically to avoid the ad hoc nature of Nuremberg and the subsequent tribunals for Yugoslavia and Rwanda.
139 countries signed the Rome Statute. 124 have ratified it. The United States is not among them.
President Clinton signed the Rome Statute in 2000, in the last days of his administration, with the explicit note that he was not sending it to the Senate for ratification. President Bush withdrew the US signature entirely in 2002, a move that has no direct precedent in American diplomatic history. The stated reason was concern that American military personnel and officials could be subject to politically motivated prosecution. The actual concern was the same: accountability.
China never signed. Russia signed and then withdrew in 2016, shortly after the ICC opened a preliminary examination into the conflict in Ukraine. Israel signed and never ratified. The pattern of which countries declined to join the court and which countries have repeatedly been accused of war crimes is not a coincidence. The same dynamic that shapes who gets to decide who is illegal on a national level shapes who gets to decide what counts as a crime on an international level. We went into that in the post on who decided who gets to belong.
Abu Ghraib: what accountability looks like from the bottom up
In 2004, photographs emerged of US military personnel torturing and humiliating detainees at Abu Ghraib prison in Iraq. Hooded prisoners on leashes. Naked human pyramids. Electrodes. Sleep deprivation. The images went around the world.
Eleven soldiers were convicted. The highest rank convicted was staff sergeant. No officer above that rank was ever charged. General Ricardo Sanchez, who commanded all US forces in Iraq at the time, was never charged. Secretary of Defense Donald Rumsfeld, who had personally approved "enhanced interrogation techniques" in a December 2002 memo, was never charged. He later said his only regret was that the memo had been in writing.
This is the consistent pattern of modern war crime prosecution in powerful countries: when accountability happens at all, it happens at the bottom. The people who gave the orders, wrote the memos, and built the systems are protected by the distance between their offices and the acts they authorized. My Lai, Abu Ghraib, drone strike civilian casualty reports that are classified for years. The mechanism is always the same. Individual soldiers are prosecutable. The architects are not.
The warrants that can't be enforced
In March 2023, the ICC issued an arrest warrant for Vladimir Putin for the war crime of unlawful deportation of Ukrainian children. This is the first time a sitting leader of one of the five permanent UN Security Council members has been the subject of an ICC arrest warrant. It means that any of the 124 ICC member states is legally obligated to arrest Putin if he sets foot on their territory.
He has continued traveling. The warrant has not been enforced.
In November 2024, the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for war crimes and crimes against humanity in connection with the conflict in Gaza. Israel is not an ICC member. The United States announced it did not recognize the court's jurisdiction. Several European ICC member states indicated they would comply with the warrant; others said they would not.
This is the current state of the system that was built at Nuremberg to ensure that what happened in the Second World War could never happen again. The court exists. The warrants exist. The arrests depend entirely on whether the country you're visiting decided this particular warrant was worth the political cost. Usually it isn't.
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Frequently asked questions
What is a war crime?
A war crime is a serious violation of the laws and customs of war as established by international humanitarian law, primarily the four Geneva Conventions of 1949 and their additional protocols. War crimes include deliberately targeting civilians, torture or inhumane treatment of prisoners, using prohibited weapons such as chemical agents or anti-personnel mines in certain contexts, taking hostages, and pillaging civilian property. The definition has been expanded and clarified through subsequent international agreements and court decisions, including at Nuremberg in 1945 and through the Rome Statute establishing the International Criminal Court in 1998.
Who prosecutes war crimes?
The primary international body for prosecuting war crimes is the International Criminal Court, established in 2002 under the Rome Statute. The ICC can prosecute individuals, including heads of state, for genocide, crimes against humanity, war crimes, and aggression. However, the ICC only has jurisdiction over nationals of member states or crimes committed on the territory of member states, and the United States, China, Russia, and Israel are not members. War crimes can also be prosecuted by national courts, by special international tribunals established by the UN Security Council (as with the former Yugoslavia and Rwanda), or in some cases by the courts of third countries under universal jurisdiction principles.
Why are so few people prosecuted for war crimes?
Several structural factors limit prosecution. Powerful countries with militaries capable of committing large-scale war crimes have generally declined to join or have withdrawn from the ICC. The court cannot compel non-member states to arrest their own nationals. Evidence collection in active conflict zones is difficult and dangerous. Perpetrators often have political protection during and after conflicts. And the history of international law has demonstrated a consistent pattern: accountability is far more likely to fall on the losing side of a conflict and on low-level actors than on commanders or political leaders who authorized the actions. This pattern, often called victor's justice, has been documented from Nuremberg through Abu Ghraib.
What did the Nuremberg Trials establish?
The Nuremberg Trials of 1945 to 1946 established several foundational principles of international criminal law. They held that individuals, including heads of state and senior officials, could be held criminally responsible for crimes against peace, war crimes, and crimes against humanity. They ruled that following orders was not a valid defense. They established the concept of command responsibility, meaning that military commanders could be held responsible for crimes committed by troops under their command if they knew or should have known about the crimes and failed to prevent or punish them. These principles were codified in the Nuremberg Principles, formally recognized by the UN General Assembly in 1946, and later incorporated into the Rome Statute of the ICC.
Has the United States committed war crimes?
Multiple actions by US military and government personnel have been characterized as war crimes by international legal experts, human rights organizations, and foreign governments, including the My Lai massacre in Vietnam, the use of torture and "enhanced interrogation techniques" on detainees at Abu Ghraib and CIA black sites following September 11, drone strikes that killed documented numbers of civilians in Pakistan, Yemen, and Somalia, and the use of white phosphorus munitions in populated areas in Fallujah in 2004. The US has never been formally prosecuted for any of these actions at an international level, in part because it is not a member of the ICC, and in part because the UN Security Council, where the US holds a permanent veto, would need to authorize any special tribunal. Domestically, prosecutions for Abu Ghraib resulted in convictions of enlisted soldiers; no officer above the rank of staff sergeant was charged.
What happens if a country doesn't arrest someone wanted by the ICC?
Under the Rome Statute, ICC member states are obligated to execute ICC arrest warrants for individuals present on their territory. In practice, enforcement is inconsistent. When Vladimir Putin visited South Africa in 2023, a year after the ICC issued a warrant for his arrest, South Africa argued internally about its legal obligations before Putin ultimately did not attend in person. Countries that choose not to arrest ICC warrant subjects face political and diplomatic consequences but no automatic legal penalty. The ICC has no police force of its own and depends entirely on member state cooperation. The result is that ICC warrants are enforceable against individuals who travel to cooperative member states and effectively unenforceable against those who do not.
