War Crimes

Abstract

The law of war crimes consists of the criminalization of the violations of the law of armed conflict (LOAC), also known as international humanitarian law (IHL), leading to individual criminal liability. Accordingly, the understanding of the law requires a discussion of a) the underlying regime of the LOAC, its general principles, and their application in specific rules; b) the relation between LOAC/IHL and the international criminal law (ICL) of war crimes; and c) the process of criminalization and enforcement, often through judicial institutions. All three steps are necessary for a doctrinal as well as a critical historical understanding of the legal regime and an appreciation of the role that the concept of war crimes plays in the regulation of war. The literature is rich with references to these questions, and to the tensions inherent in the relations between legal regimes or the process of criminalization and enforcement. This is evident whether the sources address ICL as a whole, the relationship between ICL and IHL, the role of courts and tribunals, or specific (categories of) war crimes. An interpretation of the underlying principles of IHL, its relation to ICL, and the process of criminalization and enforcement will also determine the stance of an author when they intervene in the development of the law of war crimes, for example by commenting on recent jurisprudence. Over the 20th century, the literature has encompassed arguments for the expansion of applicable law as well as more skeptical or conservative interpretations. Alongside and through formalist doctrinal arguments, different positions in the literature are informed by different understandings of the proper balance in the regulation of war and in the development of international law.