Criminal law

The Shadow of Success: How International Criminal Law Came to Shape the Battlefield


The rise and expansion of international criminal law in the past few decades has been celebrated as one of the greatest achievements of modern international law, promoting justice and the rule of law, deterring atrocities, and protecting victims around the world. In particular, for those interested in the regulation of war, IHL, through its war crimes arm, has undoubtedly contributed to the development and enforcement of IHL.

However, there are also important and often overlooked ways in which the opposite has occurred. It is these underappreciated risks created by the success of IHL in relation to IHL that I highlight This article.

ICL success

In short, my argument is that by identifying and describing certain violations of the laws of war as “criminal” and creating dedicated mechanisms for prosecuting and punishing individuals responsible for such violations, the content, practice and logic of international criminal law can be appropriate. Removing those who work in international humanitarian law. With its doctrinal precision, elaborate institutions, and seemingly irresistible claim to political and moral primacy, international criminal law—which focuses on the most serious forms of misconduct in military conflicts—overshadows the more widespread, less institutionalized, and generally more difficult to enforce forms. . International humanitarian law.

Many military manuals now routinely refer to the Rome Statute (which defines the specific crimes that make up international humanitarian law) in explaining the rules of international humanitarian law that ostensibly concern them, as the International Committee of the Red Cross did in its report. Comprehensive study on customary international humanitarian law. References to the Rome Statute are also routine in UN reports, country statements, and NGO reports. Both researchers and legal advisors – who often look for any source of positive law to show their fangs – refer to legal rulings by criminal courts to interpret the rules of international humanitarian law and advise military forces on rules of engagement. Popular media pays far more attention to “crimes” than to “abuses,” and often bases its coverage of high-profile events around the criminality of the relevant conduct. Quietly, lawyers, courts, and commentators sometimes seem to accept, if tacitly, that criminal wrongdoing dominates the field; Not only is it sublime, it effectively drains the category of behavior impermissible in war. What is criminal now is defining what is illegal and what is legal on the battlefield.

Worrying effects

The displacement or obscuration of IHL by IHL is not just a conceptual error; It constitutes a serious obstacle to the realization of the very human values ​​that ICL seeks to protect. Consider the fact that in many of the wars raging today, the majority of civilian deaths and injuries do not result from acts that can be classified as war crimes (although some would undoubtedly classify them), but from “mundane” choices of means. and methods of war. War that may at most amount to violations of international humanitarian law. For these routine battlefield decisions, the exact lines of any blocking becomes key.

Take, for example, the principle of proportionality: Military manuals routinely refer to the principle in the standard that would give rise to individual criminal liability (already set out in the Grave Violations System in Geneva Conventions and further restricted under Rome Statute of the International Criminal Court). But why is individual criminal responsibility the correct criterion to apply when considering how the state—and its armed forces—should interpret proportionality requirements more generally? Most worryingly, given the significant reluctance on the part of criminal courts to establish guilt in allegations of violations of the principle of proportionality, the conflation of the IHL standard with its criminal counterpart leaves the vast majority of targeting decisions legally unregulated.

or take duty to abstain of targeting when there is doubt about the legitimacy of the intended target. International humanitarian law Targeting is prohibited Where there is uncertainty about the status of the target as civilian or military, but it does not specify the level of uncertainty that requires stopping fire. By contrast, prosecuting war crimes is required to meet heavy burdens of proving knowledge and intent, bringing the standard closer to “near-certainty” or “beyond reasonable doubt” rather than reasonable doubt as to the legality of the target. The result is, in a sense, the opposite of the rule: instead of presuming a civilian situation in international humanitarian law, which lends itself to targeting only when there is little or no doubt that a person or thing is a legitimate military target, international humanitarian law, in In fact, targeting is permitted up to the point where there is little doubt that the person or object is civilian. Some military manuals, such as the UK Handbook, have gone in the direction of international criminal law, setting the standard at a very high threshold of “Big doubt(Paragraph 5.3.4).

Similar doctrinal tyranny occurs with regard to the criteria for permissible environmental harm resulting from military operations, or the status of children as direct participants in hostilities. In all of these contexts, the boundaries of permissible behavior have been drawn (or are in danger of being drawn) with reference to criteria of individual criminal responsibility that are difficult to define, in contrast to broader notions of state responsibility under IHL. Because of this, they leave more options on the battlefield within fewer legal boundaries.

double-edged sword

If I am correct in this analysis, war crimes jurisprudence is a double-edged sword: it helps support the cause for humanity in war, but it is also sometimes a convenient excuse for not doing more. The doctrinal rigor of IHL has replaced a more detailed and collaborative discussion, especially at the interstate level, about the desirable interpretation and application of IHL in military engagement. (Since 1977, there have been few, if any, successful efforts to negotiate and agree additional rules of international humanitarian law or to reach a common understanding of existing rules.) Instead, each state effectively decides for itself what, if any, international humanitarian law obligations (apart from international criminal law obligations) constrain its military.

Equally important, international humanitarian law has focused our attention on individual prosecutions of the most atrocious crimes, allowing states to avoid their obligations – which are almost never met in practice – to hold accountable for general violations of international humanitarian law, including by Submission of compensation. This failure to provide reparations is clearly on the part of individual states and the international community: there have been almost no efforts to establish a mechanism for identifying and paying reparations in cases of violations of international humanitarian law.

Closing thoughts

I do not mean to accuse IHL as a project, nor to diminish the many ways in which it has succeeded in enhancing legal protection for victims of misconduct in war. Rather, it is an exhortation to be careful and precise when one borrows from one field and moves to another. Military legal advisers, in particular, must be particularly careful to ensure that their lawyer for the armed forces not only avoids criminal charges, but instead adheres to the broader requirements of international humanitarian law.

More ambitiously, and especially against the backdrop of the conflicts raging in Europe, the Middle East and North Africa, perhaps it is time to borrow the multilateral process of the modern International Criminal Court and to consider mechanisms for further negotiation and agreement on the interpretation, application, and enforcement of the rules of international humanitarian law.


Gabriela Bloom Professor Rita E. Hauser for Human Rights and Humanitarian Law, and Vice Dean of the Graduate Program and International Legal Studies at Harvard Law School.

Image source: Pixels


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