Mélange du Mercredi/Military Self-Interest in Accountability for Core International Crimes

Welcome to Mélange du Mercredi (Wednesday Mix). Each week, we highlight one of the latest and greatest in reading, film and other scholarly resources, focusing on a variety of issues pertaining to international humanitarian law. As always, if you have suggestions, or would like to submit a post on something you feel our readers will also enjoy, we're happy to include them. Just email Editor Niki Clark


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Military Self-Interest in Accountability for Core International Crimes, edited by Morten Bergsmo and Tianying Song

This review written by William J. Fenrick, a Canadian military lawyer and former Senior Legal Adviser for the International Criminal Tribunal for the former Yugoslavia and was originally published in The International Review: The Evolution of Warfare

  

The book under review, edited by Morten Bergsmo and Tianying Song, contains papers linked to a conference of the same name given at Stanford University in 2012. It opens a debate on a topic that is extremely important but has not been adequately addressed in the past. Reasons for this lack of prior discussion include the perception by most lawyers and legal scholars directly involved with international humanitarian law (IHL) that their task is one primarily of prevention rather than enforcement and, unfortunately, the relative dearth of court cases when compared with the large number of offences allegedly committed.  

The core international crimes are genocide, crimes against humanity, war crimes and aggression. All members of the armed forces are, obviously, obligated to comply with applicable national and international criminal law, including an obligation not to commit any of the core international crimes. The most effective way to ensure such compliance is to adopt a preventive law approach. All members of the armed forces must receive sufficient training in the law to enable them to comply with its constraints in relatively straightforward situations. At lower levels in military organizations, this training will normally aim at teaching individual soldiers to comply with the basic principles of the law as embodied in codes of conduct or rules of engagement. At higher levels, officers may require a degree of formal training in the relevant law and also access to legal specialists who have both a degree of expertise in the law and an awareness of the realities of military operations. At all levels, both trainers and legal advisers must and do advise that compliance with the law should also comply with the principles of war, which mandate such things as focusing on the aim of the military operation and economizing on the resources used in particular operations to ensure adequate resources are available for other tasks. If the law is not to be merely hortatory, it must be enforced when breaches occur. Although the military should have a substantial self-interest in accountability for core international crimes, those who commit such offences may not always be subject to trial before military courts either because of limitations in the jurisdiction of such courts or because, for some core crimes such as genocide and crimes against humanity, the degree of involvement of higher-level persons may render military prosecution unrealistic.

To download the full review, click here