Selective Reaction to Atrocity: War Crimes and the Development of International Criminal Law

Article excerpt

That four great nations flushed with victory and stung with injury stay

the hand of vengeance and voluntarily submit their captive enemies to

the judgment of the law is one of the most significant tributes that

Power has ever paid to Reason.(1)

While supporting the Security Council's establishment of international

tribunals for Yugoslavia, where consent to a treaty creating such a

tribunal could not be obtained, and Rwanda, I am concerned about

the selectivity involved in a system where the establishment of a

tribunal for a given conflict situation depends on whether consensus

to apply chapter VII of the UN Charter can be obtained. What is

needed is a uniform and definite corpus of international humanitarian

law that can be applied apolitically to internal atrocities everywhere,

and that recognizes the role of all states in the vindication of such

law.(2)

I. INTRODUCTION

International criminal law, as it is currently known, would not exist without the extensive development of the international law of war crimes. The two fundamental notions of individual culpability for the commission of international criminal acts and the establishment of international structures and procedures for the prosecution of such acts are both firmly entrenched in international criminal law. The accepted status of these two notions in general international criminal law is a direct consequence of the legitimation of both notions through the development of the international law of war crimes. There is no reason, in principle, why individuals cannot be tried by international tribunals for alleged violations of any international crime and the extension of the corpus of international crimes beyond the otherwise limited context of armed conflict is a welcome development. The reality that innumerable alleged violations of international law have gone unpunished, despite the expectations raised by the Nuremberg and Tokyo Tribunals, has highlighted the gap between principle and practice in international criminal law. It is unfortunate, though not entirely unexpected, that the weaknesses in the current international law of war crimes have been replicated in broader international criminal law. A key theme in this Article is that the historical development of the international law of war crimes is directly relevant to an understanding of the inherent weaknesses in contemporary international criminal law.

This Article includes a brief historical survey of three distinct periods in the development of the international law of war crimes: (1) the period prior to World War I, with particular emphasis on Ancient Civilizations, Europe in the Middle Ages, and the late eighteenth and early nineteenth centuries; (2) the period during World War I and through the outbreak of World War II; and (3) Nuremberg and Tokyo and the period following World War II. To accommodate the inevitable constraints of space, the Article's survey of the historical development of the international law of war crimes is necessarily brief and reliant upon generalities.(3) However, one of the purposes of the Article is to examine the origins of contemporary international criminal law and to demonstrate emerging weaknesses in the formulation and, to a larger extent, in the application of the law.

The history of war crimes reveals a dual selectivity on the part of the international community. This selectivity is first found in relation to the acts the international community is prepared to characterize as "war crimes," and secondly, in relation to the particular alleged atrocities the international community is prepared to collectively prosecute. This dual selectivity has been born of an exclusive reliance on ad hoc and ex post facto reactions. Despite repeated criticism of this reactive approach as inconsistent and hypocritical, the international community, to date, has been unwilling or unable to deal with war crimes in a more comprehensive, principled, or proactive way. …