The Shadow of Success: How International Criminal Law Has Come to Shape the Battlefield
The rise of international criminal law (ICL) has undoubtedly contributed to the development and enforcement of international humanitarian law (IHL). Yet, there are also important and oft-overlooked ways in which it has done the opposite. By labeling certain violations of the laws of war as “criminal” and setting up dedicated mechanisms for prosecution and punishment of offenders, the content, practice, and logic of ICL are displacing those of IHL. With its doctrinal precision, elaborate institutions, and the seemingly irresistible claim of political and moral priority, ICL is overshadowing the more diffuse, less institutionalized, and more difficult to enforce IHL.
But if ICL becomes the dominant lens through which battlefield activity is measured, it is not merely intellectually unsatisfying; it poses a serious risk to the attainment of the very same humanitarian values that ICL seeks to protect. Consider the fact that in many wars fought today, the majority of civilian deaths and injuries does not result from acts that could be classified as war crimes, but from the more “mundane” choices of means and methods of warfare that at most would lend themselves to IHL scrutiny.
Rather than diminishing the importance of ICL, this article calls for more attention to the ways in which ICL is impacting IHL as well as for a stronger commitment by States to the application and enforcement of IHL for its own sake.