Serious violations of the law on the conduct of hostilities : a neglected class of war crimes ?
War crimes and the conduct of hostilities : challenges to adjudication and investigation
Cheltenham ; Northampton : E. Elgar, 2013
This article examines why prosecutions for violations of the law governing the conduct of hostilities are so rare, and argues that recent development may lead to an increase in such prosecutions. A first reason such violations have traditionally been prosecuted very rarely is that States are generally disinclined to accept restrictions on questions of national security, such as the fashion in which they can utilize their military power in battle. A second reason is the high degree of vagueness in the definitions of many crimes in this area of the law. A third reason is the difficulty of collecting evidence and establishing that an accused had the requisite mens rea. It was with an awareness of these challenges that states recently adopted the Rome Statute, which in turn created the International Criminal Court. The Statute establishes a set list of war crimes that automatically fall within the Court’s jurisdiction. Nevertheless, vagueness remains a significant problem, and the list of weapon whose usage constitutes a war crime is limited. However, despite such problems, recent case law has gone some way towards clarifying the relevant rules. Whether this positive momentum will continue remains to be seen. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]