The Municipal and International Law Basis of Jurisdiction Over War Crimes

The International Law Commission of the United Nations has recently defined war crimes as all ‘acts in violation of the laws or customs of war’.1 In so far as the definition departs from the view that only ‘grave breaches’ of the law of war are war crimes,2 the statement is meaningful, but the equating of war crimes with violations of the law of war otherwise merely restates the problem, which is essentially: What acts in warfare are violations of international law? There is a category of conduct which has often in the past been loosely referred to in terms ofinternational law but which is actually not internationally criminal in the sense that a prescription of international law requires its punishment. There remain those acts, comprising for the most part cruel and inhuman treatment of prisoners of war, the sick and wounded, and civilian populations, which are universally recognized as war crimes in the proper sense of the word. An examination of the different theories under which states have prosecuted war crimes may thus not only assess the function of international law in dealing with violations ofthe law ofwar, but also serve as a basis for defining those violations themselves.

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