What is a War Crime?

61 Pages Posted: 8 May 2019

See all articles by Oona A. Hathaway

Oona A. Hathaway

Yale University - Law School

Paul Strauch

Yale University - Law School

Beatrice Walton

International Court of Justice

Zoe Weinberg

Yale University - Law School

Date Written: March 30, 2019

Abstract

What is a war crime? Do all violations of the international law of war qualify as war crimes? And are all war crimes violations of the law of war? Academics, international criminal tribunals, and domestic courts have struggled to adopt consistent and comprehensive answers to these questions. To date, the most common approach has been to specify an act as a war crime if it violates the law of war and has been “criminalized.” Although this approach has the appeal of simplicity, it lacks a deep underlying justification and fails to adequately guide criminal tribunals, courts, and commissions. This Article instead identifies the core features of war crimes untethered from prior criminalization. We show that, despite differences in war crimes across jurisdictions and statutes, agreement exists as to the core features of war crimes. A war crime has two key elements: (1) a breach of international humanitarian law (IHL) that is (2) “serious.” Several practical implications follow from defining war crimes in this way: First, it provides a clearer standard for domestic courts holding individuals accountable for war crimes. Second, it clarifies the reach of international legal obligations requiring States to investigate violations of the law of war. Third, it provides clearer guidance for determining whether charges lodged in military commissions are in accordance with the “law of nations,” as required by Article I of the U.S. Constitution. And fourth, it helps to clarify the extent to which combatants can be subject to war crimes prosecutions.

Keywords: war crime, IHL, international humanitarian law, Geneva Conventions, ICC

JEL Classification: K33

Suggested Citation

Hathaway, Oona A. and Strauch, Paul and Walton, Beatrice and Weinberg, Zoe, What is a War Crime? (March 30, 2019). Yale Journal of International Law, Vol. 44, 2019. Available at SSRN: https://ssrn.com/abstract=3362915

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

Paul Strauch

Yale University - Law School ( email )

Beatrice Walton

International Court of Justice ( email )

Carnegieplein 2
The Hague, 2517 KJ
Netherlands

Zoe Weinberg

Yale University - Law School ( email )

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