Chapter

The criminalization of the violations of international humanitarian law from Nuremberg to the Rome statute

Fausto Pocar

War crimes and the conduct of hostilities : challenges to adjudication and investigation

Cheltenham ; Northampton : E. Elgar, 2013

p. 3-19

English

The author argues that while criminal prosecutions targeting violations of the laws governing the practice of warfare (IHL) have increased, more remains to be done. With the 1949 Geneva Conventions, states took steps towards codifying what had been customary law, and agreed to prosecute in domestic courts individuals who committed ‘grave breaches’ of IHL. However, despite the Geneva conventions, states have been strongly reluctant to accept that international jurisdiction could be exercised over crimes committed in internal conflicts. Steps towards accepting the applicability of IHL in internal conflicts were seemingly taken by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the early 1990s. An especially important case in this regard was Tadic, where the ICTY held that most acts constituting war crimes in international conflicts also constitute war crimes when committed in non-international conflicts. However, this progress was not maintained when the Rome Statue into effect in 2002. The Rome Statute, which governs the functioning and jurisdiction of the International Criminal Court, maintains the rigid traditional distinction between international and non-international conflicts. This is likely because the Rome Statute was negotiated by state parties, who remain unwilling to surrender any domestic jurisdiction. Thus the Rome Statute risks leaving IHL violations in internal conflicts immunized from prosecution. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

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• War crimes and the conduct of hostilities : challenges to adjudication and investigation / ed. by Fausto Pocar, Marco Pedrazzi, Micaela Frulli