War Crimes and the Conduct of Hostilities
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War Crimes and the Conduct of Hostilities

Challenges to Adjudication and Investigation

Edited by Fausto Pocar, Marco Pedrazzi and Micaela Frulli

Most charges for war crimes are brought for violations of the rules on the treatment of protected persons in armed conflict situations. However in certain cases, they are brought for serious breach of international humanitarian law rules governing the conduct of hostilities. This book seeks to address this somewhat neglected area of international criminal law.
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Chapter 18: The challenges of establishing the facts in relation to ‘Hague law’ violations

Stephen Wilkinson


Criminal prosecutions relating to crimes regulated by traditional ‘Hague law’ are few and far between. A key question worth considering is whether or not the ultimate challenge remains at the micro level; the ultimate challenge lies in ascertaining legally pertinent facts which are required to make sound and clear legal adjudications, be they criminal or civil in nature, in relation to this specific body of international humanitarian law (IHL). Facts are the building blocks of any legal assessment, pieces of the jigsaw puzzle that when compiled together can help elucidate a legally relevant picture. Any legal adjudication of ‘Hague law’ must necessarily determine adherence to a primary rule; the same is as true for criminal prosecution as it is for a commission of inquiry. In short relevant facts must be compiled in order to form a coherent legal assessment. Like any good jigsaw some pieces will be easier to spot than others, for example it is easier to objectively determine the number of victims in a given attack, yet conversely knowing whether or not those persons were legitimate targets, whether or not they were the direct object of attack and what was the subjective perception of the attacking party are necessarily more challenging ‘facts’ to determine.

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