War crimes

Hersch Lauterpacht famously wrote: ‘If international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law.’ Nevertheless, the concept of laws of war has existed at least since Achilles tied the corpse of the dead warrior Hector to his chariot and dragged it around the walls of Troy, and even before. Evidence of the customary laws of war has traditionally been found in the practice of national military tribunals, and in manuals dealing with the laws of war prepared for use by various armed forces, but it can also be identified in literature, like the plays of Shakespeare, and in the historic works of public international law. Of more recent vintage is the suggestion that violations of the laws and customs of war were punishable offences that engaged the criminal responsibility of individuals. With little or no hesitation, the Commission on Responsibilities established at the Paris Peace Conference in 1919 concluded that ‘[a]ll persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences agains the laws and customs of war or the laws or humanity, are liable to criminal prosecution’. The Commission said that ‘[e]very belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty’ of war crimes, ‘if such persons have been taken prisoners or have otherwise fallen into its power’.