Challenges to Adjudication and Investigation
Edited by Fausto Pocar, Marco Pedrazzi and Micaela Frulli
Chapter 2: Serious violations of the law on the conduct of hostilities: A neglected class of war crimes?
Abidance by the rules of international humanitarian law (IHL) on the conduct of hostilities (often called ‘Hague law’) is obviously crucial in preventing armed conflicts from becoming what Carl von Clausewitz defined as absolute or total wars and ensuring respect for the only legitimate scope of belligerent violence, that is weakening the military potential of the enemy. These rules are enforceable under international law through a variety of mechanisms including the criminal prosecution for war crimes of those who violate them. However a cursory look at national and international case law shows that the breach of IHL rules on the conduct of hostilities constitutes the basis of war crimes charges much more infrequently than violations of the other classes of international law such as the so-called Geneva law, which regulates the treatment of protected persons in an armed conflict. This trend manifested as early as the post-World War I war crimes trials before the German Supreme Court in Leipzig in which the Allies alleged war crimes.
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