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

71 Pages Posted: 24 Mar 2013

See all articles by Ziv Bohrer

Ziv Bohrer

Bar-Ilan University - Faculty of Law

Abstract

The prosecution of war crimes attempts to prevent and punish acts of violence directed against innocent civilians that are committed during war or “social breakdown” by members of closed social groups (i.e., domestic societies, combat units, nationalist groups, etc.). War crimes prosecution is based on the twin premises that the punishment of perpetrators of such atrocities is just and that the relevant laws and law-enforcement can effectively deter individuals from committing such acts. But is war crimes prosecution truly just and effective? The findings of sociological and psychological research have been claimed to call these premises into doubt. This Article, however, argues that such claims are inaccurate.

Research findings indicate that under certain socio-psychological “coercive” conditions, which exist in almost all situations regulated by war crimes prosecution (such as strong group cohesion, social isolation, etc.) the vast majority of individuals are conditioned to commit atrocious acts. Thus, some claim that war crimes prosecution is unjust and ineffective since it punishes, and attempts to deter, actions that individuals cannot prevent themselves from committing.

This Article argues that current interpretation of such research findings is flawed, and that this misinterpretation is what leads many to inaccurately claim that war crimes prosecution is unjust and ineffective. In order to redress this flaw, this Article points to an overlooked aspect in the research, namely the fact that enactment of criminal laws and their enforcement can decrease conditioned behavior. It concludes that once the effect of the legal norms and law-enforcement relevant to war crimes prosecution is taken into account, only on rare occasions should the commission of war crimes be viewed as conditioned. Thus, this Article only acknowledges that when an attempt is made to strongly and completely indoctrinate a person through the use of harsh coercive means (such as forced drug use, torture, or abduction to military service at a young age) it is unlikely that “socio-psychological coercion” can be overcome. Therefore, this Article argues for adoption of a “Coercive Indoctrination” defense in war crimes prosecution.

Keywords: War Crime, international criminal law

JEL Classification: K14, K33

Suggested Citation

Bohrer, Ziv, Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology. Michigan Journal of International Law, Vol. 33, No. 4, 2012, Available at SSRN: https://ssrn.com/abstract=2237465

Ziv Bohrer (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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