Legitimacy and Coherence
Edited by Gideon Boas, William A. Schabas and Michael P. Scharf
Chapter 12: International criminal justice and military perspectives
Historically, there is little evidence of military commanders being among the most fervent champions of international humanitarian law (IHL), or the law of war. Sir Arthur ‘Bomber’ Harris, the commander of the Royal Air Force’s Bomber Command during World War II, famously said: ‘Inter- national law can always be argued pro and con, but in this matter of the use of aircraft in war there is, it so happens, no international law at all.’1 It is unlikely that this view would allow for enthusiasm for any notion of international criminal justice. How should the contemporary institutionalisation of the idea of international criminal justice, embodied in the establishment of a number of international courts and tribunals since 1993, be viewed by military forces? Should they be wary of it, or should they welcome it? This chapter argues that a well-trained and disciplined military force that exhibits a commitment to the observance of IHL, has nothing to fear from international criminal justice and should adopt a ‘business-as-usual’ approach. In some respects, such a commitment can be seen as positive. In early 1995 the author was the Director-General of Legal Services of the Australian Defence Force (ADF) and in that capacity, joined in the work towards the development of the Australian Government’s position on the proposal to establish an international criminal court. As with all treaty negotiations, there is an irresistible and natural inclination to approach the task with a view to achieving what a state regards as the optimum outcome for it,
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