42 - War Crimes

Summary

INTRODUCTION

War crimes are violations of a special body of criminal law triggered by an armed conflict. The most serious violations of the patchwork of international treaties and customs that make up the laws of war – violations such as torture, rape, and pillage during wartime – have been criminalized and offenders can be prosecuted in national or international courts with jurisdiction. Humanitarian lawyers, lawyers who specialize in the laws of war, attempt to deploy laws to moderate the behavior of fighters and their leaders and to reduce human suffering. This, at least, is the ideal. The notion that law can and should permeate war is, however, intensely problematic.

Humanitarian law, which at first appears to be a principled constraint on war, is intricately entwined with it. The involvement of law and lawyers with the dominating, destructive, and coercive aims of war lends war making the legitimacy of the law and this has on-the-ground implications. Humanitarian law’s contradictions and ambiguities, meanwhile, create opportunities for strategic lawyering. Consequently, humanitarian law exists as a humanizing influence on warfare, but also as an important zone of contestation where the courtroom, a multilateral treaty negotiation, or the media become the battlefield.