Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology

Should perpetrators of genocide, violent acts against civilians during war, or other massive violations of core human rights be punished? International criminal law (ICL) answers this question affirmatively, asserting that the punishment of such atrocities is just and that their effective prosecution can (and should) contribute to the prevention of such future acts. Moreover, an increasing attempt has been made in the international and domestic arenas to act in accordance with these assertions of ICL through the prosecution of war crimes. During the last two decades the role of ICL has become gradually more significant, and the fall of the Soviet bloc has lifted the main political barriers that had prevented the implementation of ICL. Furthermore, the atrocities of the 1990s (mainly in the former Yugoslavia and Rwanda) have reaffirmed the post-World War II realization that means directed against states (such as reprisals and countermeasures) are insufficient to prevent those atrocities that ICL is designed to prevent and punish. These atrocities have also strengthened the moral conviction that perpetrators of such acts must be punished. Thus, ICL has been increasingly applied through the use of international tribunals that directly apply the norms of ICL, as well as through domestic prosecution of acts that constitute war crimes. These attempts on the international and domestic levels are strongly connected. Accordingly, it can be argued that an international penal legal system currently exists (ICL) and that the different international and domestic forums that partake in war crimes prosecution are simply different means that this system has to enforce its norms. Alternatively, it can be argued that each domestic enforcement mechanism should be viewed as a branch within the relevant domestic system, and thus the reference to ICL as a legal system should only be made in the context of war crimes prosecution made by international tribunals. This Article will not attempt to resolve this dispute and thus will use the dual terms ICL and war crimes prosecution. The Article intends to focus on attempting to justify a phenomenon that cannot be disputed: the considerable strength that direct and indirect enforcement of ICL norms through war crimes prosecution has gained in recent decades. The prosecution of war crimes is not without its critics. Much of the criticism of ICL and war crimes prosecution\u27s premises of just punishment and effective crime prevention is based on the findings of sociological and psychological research. As of yet, proponents of ICL and war crimes prosecution have failed to supply a sufficient response to this criticism. This Article attempts to fill this void

International Criminal Law’s Millennium of Forgotten History

At the close of World War II (WWII), Winston Churchill suggested summarily executing the remaining Nazi leadership. Franklin Delano Roosevelt disagreed, insisting on prosecuting them in an international military tribunal. This is considered the “birth” of International Criminal Law (ICL), following a consensus that “[t]he Nazi atrocities gave rise to the idea that some crimes are so grave as to concern the international community as a whole.” A few earlier instances of penal action against violators of the laws of war are acknowledged, but they are dismissed as unrelated to current ICL, because (presumably) these cases are sporadic domestic legal actions that lack a common doctrine.</jats:p

Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology

Should perpetrators of genocide, violent acts against civilians during war, or other massive violations of core human rights be punished? International criminal law (ICL) answers this question affirmatively, asserting that the punishment of such atrocities is just and that their effective prosecution can (and should) contribute to the prevention of such future acts. Moreover, an increasing attempt has been made in the international and domestic arenas to act in accordance with these assertions of ICL through the prosecution of war crimes. During the last two decades the role of ICL has become gradually more significant, and the fall of the Soviet bloc has lifted the main political barriers that had prevented the implementation of ICL. Furthermore, the atrocities of the 1990s (mainly in the former Yugoslavia and Rwanda) have reaffirmed the post-World War II realization that means directed against states (such as reprisals and countermeasures) are insufficient to prevent those atrocities that ICL is designed to prevent and punish. These atrocities have also strengthened the moral conviction that perpetrators of such acts must be punished. Thus, ICL has been increasingly applied through the use of international tribunals that directly apply the norms of ICL, as well as through domestic prosecution of acts that constitute war crimes. These attempts on the international and domestic levels are strongly connected. Accordingly, it can be argued that an international penal legal system currently exists (ICL) and that the different international and domestic forums that partake in war crimes prosecution are simply different means that this system has to enforce its norms. Alternatively, it can be argued that each domestic enforcement mechanism should be viewed as a branch within the relevant domestic system, and thus the reference to ICL as a legal system should only be made in the context of war crimes prosecution made by international tribunals. This Article will not attempt to resolve this dispute and thus will use the dual terms ICL and war crimes prosecution. The Article intends to focus on attempting to justify a phenomenon that cannot be disputed: the considerable strength that direct and indirect enforcement of ICL norms through war crimes prosecution has gained in recent decades. The prosecution of war crimes is not without its critics. Much of the criticism of ICL and war crimes prosecution\u27s premises of just punishment and effective crime prevention is based on the findings of sociological and psychological research. As of yet, proponents of ICL and war crimes prosecution have failed to supply a sufficient response to this criticism. This Article attempts to fill this void

Proportionality in Military Force at War\u27s Multiple Levels: Averting Civilian Casualties vs. Safeguarding Soldiers

To what lengths may a state go to protect its soldiers in war? May it design its military operations to further that goal if this significantly increases civilian casualties? International law currently offers no clear answers. Because recent wars have seen many states prioritize soldier safety over avoiding civilian casualties, spirited debate has arisen over the legal defensibility of this practice. This debate currently focuses on an ethics code proposed by two influential Israeli thinkers and allegedly embodied in Israel\u27s conduct of its 2008-2009 Gaza war with Hamas. This Article shows that current discussion fails to appreciate how judgments about proportionality in the use of military force necessarily differ at the tactical, operational, and strategic levels of warfare. It illustrates this with empirical material from recent armed conflicts. If international law is to address war\u27s inescapable moral complexities, it must be interpreted to reflect the variation in the kind of decisions that soldiers confront at distinct organizational echelons. This approach largely resolves one of the most vexing conundrums that has perennially bedeviled the law of war

Civilian casualties and public support for military action: Experimental evidence

In contrast to the expansive literature on military casualties and support for war, we know very little about public reactions to foreign civilian casualties. This article, based on representative sample surveys in the US and Britain, reports four survey experiments weaving information about civilian casualties into vignettes about Western military action. These produce consistent evidence of civilian casualty aversion: where death tolls were higher, support for force was invariably and significantly lower. Casualty effects were moderate in size but robust across our two cases and across different scenarios. They were also strikingly resistant to moderation by other factors manipulated in the experiments, such as the framing of casualties or their religious affiliation. The importance of numbers over even strongly humanizing frames points towards a utilitarian rather than a social-psychological model of casualty aversion. Either way, civilian casualties deserve a more prominent place in the literature on public support for war