The development of international law on war crimes 1949-2000

Abstract

The international legal provisions on war crimes have been adopted and developed within the framework of the law of armed conflict, a special branch of international law which has its own peculiarities and which has gone through an intense period of growth, evolution and consolidation in the last fifty years. This thesis will attempt to analyse the development of war crimes within the international legal and jurisdictional framework, starting with the legacy of the Nuremberg International Military Tribunal precedent. The activities of these Tribunals marked the beginning of an important legal evolution, which was later more clearly defined with the setting up of the ad hoe Tribunals for the Former Yugoslavia and for Rwanda, and, last but not least, with the Diplomatic Conference that adopted the Rome Statute of the International Criminal Court. An account of the development of international law on war crimes will be provided in two respects: (i) the movement that has taken place over the years away from the traditional international/internal dichotomy, and (ii) the developing corpus of the law on war crimes, both the conventional and customary categories of rules and principles. The primary goal of chapters 1 and 2, which deal with the war crimes provisions in multilateral conventions, resolutions, and studies, is to establish the letter of the law as a manifestation of opinio juris of States. In this respect, the grave breaches provisions of the 1949 Geneva Conventions and the 1977 Additional Protocols will be discussed in detail. By contrast chapters 3 and 5 focus on actual State practice. These chapters will discuss the rapid national and international legal developments, such as the establishment and practice of the ICTY and ICTR, as well as the adoption of the ICC Statute. The discussion in this respect will focus on the ICTY pronouncements on the customary status of certain war crimes, and on domestic prosecutions of war crimes and relevant national legislative initiatives. A brief conclusion will provide some general remarks and outline the development discussed in the body of the thesis. It will also touch on the prospect of evolution in the international system in keeping with the trends manifested in the ICTY jurisprudencewith regard to internal armed conflict and the role of customary international law.