War crimes

[chrisjensen]

Overview

Clarify war crimes. War crimes is actually poorly defined. May need to reference an international convention.

Proposed Resolution

Find a specific definition of war crimes that can be referenced

[f1yn]

I found this @chrisjensen, should be a solid foundation: https://www.un.org/en/genocideprevention/war-crimes.shtml

[chrisjensen]

Thanks for this @flynnham
Reading over the points in that page, it would seem the vast majority of things are already covered by our exclusions for violence, war and weapons manufacture.
It highlights a couple of notable omission:

• torture
• using people as human shields during armed conflict

Also, some things that may already be covered by existing wording, but might be worth making explicit:

• deliberate destruction of property / spoiling of land
• rape and sexual assault
• forced sterilisation and other non-consensual medical procedures

[tommaitland]

The UDHR already covers this I think:

• Article 5 - No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
• Article 3 - Everyone has the right to life, liberty and security of person.. This is broad, but I think it's breadth would cover using people as human shields during armed conflict.

On the others, I think article 3 would also cover rape and sexual assault and forced sterilisation and other non-consensual medical procedures via "security of person".

I think spoiling of land is the main one we're missing, which could be added under the environmental section?

[realpixelcode]

Yeah, war crimes might already be covered, but is there any good reason not to add an explicit clause? I mean: There are good reasons why both the UDHR and the Rome Statute of the International Criminal Court exist, and I think we are not compentent enough to just decide that only one of them is necessary for definining ethical behaviour. Thus, I'd just include some reference to the Rome Statute somewhere in the licence, maybe as a definition.

Also, how about ostracised weapons of warfare? I'm thinking of ABC weapons and mines etc.

[tommaitland]

We just need to strike a balance in the license between simplicity and using already agreed-to international definitions, and creating a laundry-list of all the evil in the world.

We could remove the reference to the UDHR entirely and replicate its substance in the license, but that would end up with a much more complex, and much less standardised license. So if things are already covered by the UDHR and CRC I think we should avoid adding them again for simplicity.

I'm not as familiar with the Rome Statute but from my quick research it's covering the court's jurisdiction and would be less logical to reference here than the UDHR. Is there anything in the Rome statute that isn't broadly covered by the UDHR you feel is missing here?

[realpixelcode]

Let's say there's a war between two countries. If the Rome Statute didn't exist, both parties could argue that, for whatever reason (self-defence, “de-nazification” etc.), their fighting in the war is justified, wherefore any human rights violations by them would be justified too. Now, thanks to the Rome Statute, the Hague Convention and other treaties especially cruel war actions can still be persecuted.

Basically, the Rome Statue defines what counts as genocide, crimes against humanity, crime of aggression etc. It was even adopted in part verbatim for the German Code of Crimes against International Law.

[tommaitland]

I think we're getting quite far beyond the practical scope of this license. Here we're talking about waring states and the jurisdiction of a Court who waring states often ignore.

The license already stipulates that it can't be used by those who are using software for violence (and we're working on clarifying that in #70) and the license is upholding the right to life. I'm struggling to imagine a scenario where a state is using software covered under this license, the state is committing war crimes, and that state hasn't already tripped one of the other protections in this license.

[realpixelcode]

a scenario where a state is using software covered under this license, the state is committing war crimes, and that state hasn't already tripped one of the other protections in this license

Realistic scenario: russia using open-source software for grenade-carrying drones in its war against Ukraine. russia could claim that its war is justified, also justifying any violations of the Ukranian soldiers' right to life and security.

[tommaitland]

Yeah – that is a realistic scenario but I would argue that it's already covered by violence (except where required to protect public safety). Of course Russia may claim its war is justified to protect public safety, but factually it isn't. No matter how granular our clauses in the license, that's not a scenario we can protect against.

If we say you can't violate the Rome Statute, Russia would just say it's not violating the Rome Statute because of...

And that's beyond the reality that Russia will not care at all what this license says – I'm not sure this is very constructive.

Hold on, I thought this was covered in 5.5(I)(c). 🤔