The impact of criminal prosecutions on compliance with IHL : challenges and perspectives on the way forward
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University of Western Australia law review, Vol. 39, issue 1, June 2015, p. 4-28
In this article Serge Brammertz examines whether criminal prosecutions are effective in promoting compliance with IHL. He argues that it would be false to conclude that criminal prosecutions are not increasing compliance based on simplistic before and after comparisons, particularly when so many other factors are influencing the nature and harms of armed conflicts today. But he also underlines significant challenges that directly and indirectly undermine the deterrent effect of international criminal justice. While the development of the doctrine of superior responsibility has brought positive results, international criminal tribunals still face many challenges in successfully prosecuting superiors for the crimes of their subordinates. The author identifies challenges in relation to investigations and evidence, as well as with case selection and the failure to arrest fugitives. He then suggests avenues for reform which would strengthen prosecutions both at the international and domestic level.
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