Ensuring Experience Remains the Life of the Law: Incorporating Military Realities into the Process of War Crimes Accountability
25 Pages Posted: 10 Jan 2015
Date Written: January 8, 2015
International criminal responsibility for war crimes is today a firmly entrenched component of the IHL compliance mosaic. Investigation, prosecution, conviction, and punishment of individuals who violate IHL – the internationally adopted rules that regulate armed conflicts - is expected to produce both retributive and deterrent effects, ostensibly enhancing the probability of legal compliance in on-going and future armed conflicts. Military commanders are and must remain the focal point for this accountability process; a focal point that is logically aligned with the unique authority of commanders to train, direct, and oversee the conduct of subordinates armed with immense lethal capability, and entrusted with the authority to make judgments that have profound life and death consequences.
While may all be unremarkable, and perhaps even axiomatic, it also produces an increasing complex process of criminal application of an operational regulatory regime. And this complexity will only increase with the inevitable extension of international criminal accountability to situations of complex tactical and operational judgments – most notably targeting judgments. Evidentiary and procedural challenges associated with war crimes prosecutions will be magnified by such cases, cases that will require tribunals to sift through the proverbial ‘fog of war’ in an effort to identify the outer limits of reasonable operational and tactical judgment.
Cases involving complex battlefield decision-making therefore highlight important questions over the intersection of battlefield regulation and doctrines of criminal responsibility, and how such prosecutions will produce credible and reliable outcomes. More specifically, how, if at all, does the so-called ‘fog of war’ impact the adjudication of guilt, and how can the touchstone of reasonableness be applied in the criminal accountability process? This Essay focuses on these and other related questions in an effort to generate a more extensive consideration of interplay between operational planning, real-time mission execution, and the criminal accountability process. The ultimate thesis of the Essay is that improving the synchronization between the regulatory and accountability domains of IHL will inevitably enhance the efficacy of the law in both domains, and contribute to the overall credibility of prosecutorial outcomes.
Keywords: Humanitarian Law, International Criminal Law, War Crimes, Accountability, Law of Armed Conflict, Conflict Regulation
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