Abstract
This paper’s aim is to pose problems appropriate for the first paper of this issue, to provide something of an overview of the punishment of war crimes. It considers first the rationale of the law of war, the identification and scope of war crimes, and proceeds to consider the justification of punishing war crimes, arguing for a consequentialist view with side-constraints. It then considers the alternative of reconciliation.
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Notes
The half-dressed soldier is George Orwell’s example (Orwell 1966).
State of Israel v Eichmann, quoted in Drumbl 2007, p. 236.
For a detailed discussion of proportionality see Ryberg 2004.
As allowed by the Nuremburg Statute (annex to TS 27 (1946)).
Article 53 continues:
2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because ···
(c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber ···
3. (a) At the request of the State making a referral ··· or [of] the Security Council ···, the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.
(b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber’.
References
Bentham, Jeremy. 1962 (1823). (Bentham’s final revision of work first published in 1789.) An introduction to the principles of morals and legislation, Vol. 1 of The Works of Jeremy Bentham, ed. John Bowring. New York: Russell & Russell Inc.
Drumbl, Mark A. 2007. Atrocity punishment and international law. Cambridge: Cambridge University Press.
Ellis, Anthony. 2001. What shall we do with war criminals? In War crimes collective wrongdoing, ed. Aleksandar Jokić. Oxford: Blackwell.
Hart, H.L.A. 1968. Punishment and responsibility. Oxford: Oxford University Press.
International Criminal Court. 1998. Rome statute of the international criminal court 1999. London: Stationery Office.
International Criminal Tribunal of Yugoslavia. 1998. Erdemovic. http://www.icty.org/sid/7686. Accessed 9 Feb 2010.
Kant, Immanuel. 1996 (1797). The metaphysics of morals. In Practical Philosophy, trans. and ed. by Mary J. Gregor. Cambridge: Cambridge University Press.
May, Larry. 2005. Crimes against humanity. Cambridge: Cambridge University Press.
May, Larry. 2007. War crimes and just war. Cambridge: Cambridge University Press.
Orwell, George. 1966 (1938). Homage to Catalonia. Harmondsworth England: Penguin Books.
Orwell, George. 1968 (1945). Revenge is sour. In Collected Essays, Vol. 4. Harmondsworth England: Penguin Books.
Roberts, Adam, and Richard Guelff (eds.). 2000. Documents on the laws of war, 3rd ed. Oxford: Oxford University Press.
Ryberg, Jesper. 2004. The ethics of proportionate punishment. Dordrecht: Kluwer.
Truth and Reconciliation Commission in South Africa Report. 2001. New York: Palgrave Macmillan.
Universal Declaration of Human Rights 1948 217 A(III). http://www.un.org/en/documents/udhr/. Accessed 9 Feb 2010.
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Clark, M., Cave, P. Nowhere to Run? Punishing War Crimes. Res Publica 16, 197–207 (2010). https://doi.org/10.1007/s11158-010-9107-1
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DOI: https://doi.org/10.1007/s11158-010-9107-1