To save content items to your account,
please confirm that you agree to abide by our usage policies.
If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.
Find out more about saving content to .
To save content items to your Kindle, first ensure firstname.lastname@example.org
is added to your Approved Personal Document E-mail List under your Personal Document Settings
on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part
of your Kindle email address below.
Find out more about saving to your Kindle.
Note you can select to save to either the @free.kindle.com or @kindle.com variations.
‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi.
‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
An initial glimpse into the ICC courtroom introduces the lead participants on the first day of the Court’s first trial. This chapter contrasts the modern courtroom in The Hague with culturally distant conflicts arising in the Congo, which tested the Court’s stamina for implementing international legal norms. The Court’s legal mission was formulated in the Rome Statute, a treaty accepted after 1998 by some 120 member states, building on earlier court models from Nuremberg, Yugoslavia, and Rwanda. Its moral scope contained broad ideals: promoting long-term peace and justice by prosecuting those deemed most responsible for atrocities that “shock the conscience of humanity.” Among the ICC’s innovations was a commitment to elevate victims of mass atrocities, enabling their active participation in trial proceedings. The Court’s overall design included a series of tensions and conflicts that would emerge during the years covered by the Congo trials. In addition to the cultural contrast between The Hague and the Congo, there were tensions between the strictly legal courtroom proceedings and the inevitable political entanglements facing an international court.
In Chapter 2, the analysis focusses on the substantive applicability of the ICC’s framework to environmental harm. It surveys the aims of the Court, as set out in its Preamble; the jurisdictional and admissibility criteria governing the Court’s activities; and the substantive provisions of the Rome Statute of the ICC, namely genocide, crimes against humanity, war crimes, and the crime of aggression.
This chapter examines how a cyberattack that has consequences similar to a kinetic or physical attack – causing serious loss of life or physical damage – could be encompassed within the crimes that may be prosecuted before the International Criminal Court (“ICC”). While it is a very limited subset of cyber operations that might fall within the ambit of the ICC’s Rome Statute, the chapter explains when and how a cyberattack could constitute genocide, crimes against humanity, war crimes, or the crime of aggression. The chapter additionally acknowledges limitations as to which attacks would be encompassed, given, particularly, the ICC’s gravity threshold as well as the hurdle of proving attribution by admissible evidence that could meet the requirement of proof beyond a reasonable doubt. Notwithstanding such limitations, increased awareness of the largely previously overlooked potential of the Rome Statute to cover certain cyberattacks could potentially contribute to deterring such crimes and to reaching the goal of a state of “cyber peace.”
This chapter contemplates the possibility of enforcing the responsibility of individuals with regard to violations of the principles of lawful targeting. It foregoes re-stating the general principles that govern the individual responsibility for war crimes, in favour of strictly addressing the responsibility for unlawful attacks during armed conflict. Two issues are discussed separately. The first one is the norms that criminalize attacks against persons not directly involved in hostilities and against civilian objects. It is verified whether each violation of IHL as regards targeting results in criminal responsibility. The second issue is responsibility strictly for the participation in hostilities, because in several states there have been attempts to criminalize this as a type of war crime. Moreover, punishability of such participation offers a good illustration of the differences in treatment of those on the state and the non-state side of armed conflict.
International criminal law is the branch of public international law under which individuals may be held criminally responsible for the offenses of genocide, crimes against humanity, war crimes, and the crime of aggression. International criminal law seeks to prevent impunity by holding accountable those individuals who are responsible for serious violations of international criminal law. This chapter begins with the history of international criminal law, starting with the aftermath of the First and Second World Wars, and ending with the creation of a spate of international criminal courts and tribunals in recent decades. The chapter then covers substantive aspects of international criminal law, namely the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Finally, the chapter covers key procedural aspects of international criminal law, including the jurisdiction of international courts and tribunals, the admissibility of cases, modes of liability, and immunities. The International Criminal Court (ICC) will form a focal point in this chapter.
Section H is a brief analysis of international criminal law and its applicability to nuclear operations. It discusses the prohibition of genocide, crimes against humanity and war crimes, with a specific focus on the use of nuclear weapons.
The chapter discusses the founding of the Polish War Crimes Office, the ways in which the War Crime Office engaged with the UNWCC, and the Charge Files that it submitted. It is argued that the Polish War Crimes Office developed Charge Files in a strategic and organised manner. It was able to do this due to the continuous flow of intelligence from the Polish Underground State. It is also maintained that, through contributions to legal debates within the UNWCC and through submitted Charge Files, the Polish War Crimes Office helped to expand understanding of the idea of ‘war crimes’.
In the early part of the Second World War, the Polish Government in Exile (often in concert with the Czechoslovak government) sought to maintain pressure on the British Foreign Office to respond to war crimes. The chapter examines the statements made by Allied governments, from the Anglo–French–Polish statement of April 1940 to the publication of Punishment of War Crimes (2) in late August 1943. It analyses the diplomatic steps taken by the Polish Government in Exile to press for an Allied response to German atrocities. The chapter charts the path to the important St James’s Palace Declaration on Punishment for War Crimes of 13 January 1942. The 10 December 1942 Polish Note to Allies and the 17 December 1942 United Nations Declaration that publicly and officially recognised Germany’s policy ’to exterminate the Jewish people in Europe’ are also discussed.
This article poses the question as to whether and why States overlook the prosecution of people for war crimes rather than terrorist offences, where war crimes would be preferred. It looks at whether a diverse range of States (Afghanistan, Australia, Mali, the Netherlands and the Russian Federation) are able through their domestic legislation to prosecute people for war crimes or for terrorist offences. It considers what the value of prosecutions is theoretically and legally, and what the impact of prosecutions is practically in a State. It proposes that prosecutors, police and judges should ask the question whether an alleged offender should be prosecuted for war crimes and/or terrorist offences with war crimes being the preferred option where there is evidence that they have been committed.
Chapter 3 orients the student to the basics of LOAC as it exists on today’s battlefields. It moves from long-past history to modern, even contemporary, history by relating today’s LOAC, along with its more recent historical foundations and modern law of war incidents. For example, World War I and the ineffective trials of German war criminals by German courts – the Leipzig trials – are shown to be the impetus for World War II’s Nuremberg and Tokyo international military tribunals. The LOAC import of the League of Nations and the Spanish Civil War are detailed, along with the 1929 Geneva Conventions’ (two Conventions) contributions. The bulk of the chapter is an examination of today’s four 1949 Geneva Conventions, including their “common articles,” the varied routes to the charging of war crimes alleged against both combatants and civilians, along with the significance of “grave breach” war crimes. Indicators of war crimes is detailed, as well.
The conclusion examines two stories from 2016 that reflect broader themes of veterans returning to Việt Nam. The appointment of Vietnam veteran and alleged war criminal Bob Kerrey to Chair of Fulbright University Vietnam revived the now-familiar narrative about American redemption in Việt Nam, while the pilgrimage of thousands of Australians to Việt Nam for the 50th anniversary of the Battle of Long Tan demonstrated a profound sense of entitlement to Vietnamese spaces. The conclusion summarizes that veterans returned in search of resolution or peace, which manifested in nostalgia. Upon return, many returnees found a measure of peace, but were challenged by the erasure of their wartime presence. Veterans negotiated this displacement by drawing from wartime narratives and performing nostalgic practices to reclaim their sense of belonging in Việt Nam. Yet the 2016 stories indicate that veteran influence in the country will decline as Việt Nam moves on from war.
Chapter 7 examines veterans’ reflections on key war legacies in light of their return journeys. After the war, veterans grappled with complex and politically charged narratives about the war that shaped how they viewed their individual experiences. Those that returned to Việt Nam faced new stories and memories about the war that challenged these narratives. Rather than challenging their views, the experience of returning to Việt Nam often reinforced their existing values and beliefs, and many returnees drew from return experiences to support their existing views. This chapter situates returnees’ views in broader historiographical debates on four key issues: perceptions of defeat (or victory) in Vietnam, the anti-war movement, the association between “their” war and war crimes, and the justness of the war. The majority of veterans raised these key legacy issues in their interviews without prompting, indicating how polarizing and contentious the Vietnam War continues to be.
The “asymmetry myth” is that war crimes are committed by one's enemies but never, or hardly ever, by one's own combatants. The myth involves not only a common failure to acknowledge our own actual war crimes but also inadequate reactions when we are forced to recognize them. It contributes to the high likelihood that wars, just or unjust in their causes, will have a high moral cost. This cost, moreover, is a matter needing consideration in the jus ante bellum circumstances of preparedness for war as well as of conduct within it. As part of the symposium on Ned Dobos's book, Ethics, Security, and the War-Machine, I will argue that the strength of the asymmetry myth is sustained by certain forms of romantic nationalism linked to the glamorization of military endeavor.
It is common to argue that the communist-led Democratic Republic of Vietnam, following the theory of "people's war," defeated the French in the First Indochina War. This argument is correct everywhere except for southern Vietnam. France's slow and systematic implementation of what it called "pacification," in concert with allied self-defense and paramilitary forces, slowly brought increasing parts of the Mekong Delta under the control of France and its allies. In reaction, The Resistance pursued a four-prong strategy: 1) they strengthened the communist core of the Resistance by recruiting cadres, purging "unreliable" non-communists, and working to capture control of the Resistance at all levels; 2) they reached out to potential allies like the Khmer, Chinese, Buddhists, and Catholics; 3) they practiced outreach towards rivals and enemies through proselytization (Địch vận); 4) they strengthened Resistance ability to engage in a sophisticated repertoire of violence ranging from intimidation to conventional warfare. Despite this sound strategy, the Resistance precipitously shifted to conventional warfare. The French-led forces took advantage of this costly mistake. France's commission of war crimes in keeping food from the population, its access to increased American funding after 1949, and contingent factors also contributed to Resistance failure.
This chapter focuses on the archive’s concepts and objects. This first examines how the tribunal’s legal rules shaped the archive, setting out how the court’s statute and ever-evolving jurisprudence created the framework through which the archive’s records were produced. Beginning to get to the political nature of this imagining, the chapter also demonstrates how certain interpretations of the law ended up preventing records from being produced – such as about the international nature of the genocide from entering the archive – and cemented the use of trials as a key governance tool within the international community. The second part zeros in on arguably the two most important objects for the archive: victims and perpetrators. Exploring how these were constituted in particular ways points to how this produced distinctive visions of community and also how this resulted in a number of conflicts between the archives strategies.
This article examines rosewood trafficking in the Casamance region of Senegal to determine whether acts of massive deforestation committed in the context of a non-international armed conflict can be prosecuted before the International Criminal Court (ICC) as war crimes of pillage and destruction of property under Article 8(2)(e)(v) and (xii) of the Rome Statute, respectively. It examines two of the main challenges resulting from the application of these provisions to acts of massive deforestation in the light of the ICC Elements of Crimes. Firstly, the article addresses the delicate issue of the establishment of a nexus between these acts and the related non-international armed conflict. Secondly, it discusses whether natural resources may qualify as ‘property’ for the purpose of Article 8(2)(e)(v) and (xii). It then offers avenues of reflection regarding the determination of ownership of these resources to fulfil the requirements of the Rome Statute.
In July 2020 the International Criminal Court opened the trial in the Al Hassan case. For the first time in the history of international criminal justice a defendant is being tried with the charge of the war crime of sentencing or execution without due process in the context of a non-international armed conflict. Together with its equivalent in international armed conflicts – the war crime of denying a fair trial – this offence falls within the category of the war crimes of denying judicial guarantees. Although there are differences in their constitutive elements, both offences prohibit states and armed non-state actors from depriving prisoners of war and civilians of certain minimum judicial guarantees. The provisions that regulate these two crimes, however, present interpretative and practical issues which, so far, have not received sufficient consideration. Most notably, the material elements of the offences raise a range of interpretative doubts and are of cumbersome application. The objectives of the article are (i) to identify the issues posed by the material elements of the war crimes of denying judicial guarantees, (ii) to warn of the pitfalls hidden by the interpretation of the offences, and (iii) to trigger the debate on the issues that the crimes raise.
As a reaction to the killing and beheading of two soldiers in the Syrian Civil War, the German Federal Court of Justice (BGH) set a milestone in the interpretation of § 8(1) no. 9 of the German Code of Crimes against International Law (VStGB). The judges confirmed the conviction of a young German citizen with Syrian roots, Aria L., who had been tried and convicted before the Higher Regional Court of Frankfurt am Main (Oberlandesgericht (OLG) Frankfurt am Main). Within the certiorari, the BGH reviewed whether the statute conformed with the principle of legality found within the Grundgesetz (GG), Germany’s constitution. The Court held that the corpse of a person killed is protected from desecration under humanitarian law pursuant to § 8(1) no. 9 VStGB, the equivalent to Article 8(2)(b)(xxi) and (3)(ii) of the Rome Statute for the International Criminal Court (ICC). Reviewing this particular decision, it was determined that under the circumstances of a non-international armed conflict, beheading someone, placing the head on a metal rod, and taking pictures afterward in order to upload them onto social media is gravely humiliating and degrading. The head is incomparably the part of the body that identifies a person. Furthermore, it is irrelevant whether the perpetrator had any physical influence over the person. In addition, war crimes can be committed in a non-international conflict, which should, however, be treated equally as an international conflict. This outcome triggered diverse reactions amongst legal scholars, especially due to the extension of the understanding of a “person” who is to be protected under humanitarian law.
“Genocide” became an option to codify the Martens Clause when Axis Rule was published in late 1944. But “war crimes,” “crimes against humanity,” and “crimes against peace” were the favored options among Allied authorities in the first half of the 1940s. Genocide’s breakthrough as a politically viable legal concept was dependent less on Lemkin’s well-known energetic advocacy than on its repositioning in a field of conceptual options over which he had no control. Lemkin’s achievement was not to invent a “new word … to denote an old practice in its modern development” but to contrive a conceptual artifice that enabled a new coalition of small states and civil society groups like the WJC to create a new reality by combining the “crippling” and “extermination” of nations after the disappointing outcome of the Nuremberg Trials in 1946. In doing so, he introduced definitional instability into the concept. Genocide’s redefinition in the UN Convention negotiated between 1947 and 1948 made the Holocaust the archetype of genocide.
The instalment of genocide as the “crime of crimes” marked a turning point in the centuries-old language of transgression: now only mass criminality motivated by race-hatred that resembled its archetype, the Holocaust, shocked the “conscience of mankind.” This depoliticization had momentous consequences for the visibility of permanent security. Now only illiberal permanent security – embodied by the Axis powers that disgraced themselves in the Second World War – counted as seriously criminal. Practices of liberal permanent security were not so shocking, notwithstanding the postwar peace movement’s attempt to link Auschwitz and Hiroshima. The most dramatic decades are mid-1960s to the early 1980s when scholars and activists who excoriated the US bombing and counterinsurgency strategy in Vietnam, and its nuclear weapons program. At issue were the notions of “national security” and “military necessity,” the watchwords of the juggernaut they called the US “national security state.”