War Crimes Accusations: A Typology

• In Event: The International Criminal Court at 25: Politics and Perceptions

Abstract

Accusations that individuals or groups are guilty of war crimes have proliferated dramatically in
recent decades. Governments, human rights groups, international organizations, lawyers, formal
courts, journalists, and political propagandists all routinely make accusations that war crimes
have been committed. The development of International Criminal Law and its
institutionalization in courts such as the International Criminal Court has established a legal
discourse which is authoritative in determining which particular acts of mass violence legally
qualify as war crimes and crimes against humanity. This legalization process has given force to
a much broader and only loosely norm governed discourse in which politically motivated actors
seek to frame particular acts and actors as war crimes and war criminals. While the formal legal
discourse is constrained by tight jurisdictional and procedural rules, the popular discourse on war
crimes faces no such constraints. Accordingly a broader collection of potential “cases” of war
crimes are considered and contested in this political discourse than what is possible in the formal legal sphere. In order to better understand the impact of the establishment of the International Criminal Court, and the development of international criminal law through various ad hoc courts of the last several decades, it is necessary to develop a typology of war crimes accusations. Claims about war crimes differ in the extent to which accusations are linked to particular legal standards, such as the definitions of crimes in the ICC statute. They also differ in their degree of specificity with regard to the individuals or groups that are allegedly responsible for committing crimes. Claims about war crimes also differ in purpose. While some are intended to lead to formal legal processes, other accusations of war crimes are primarily political in purpose, intended to politically weaken the targets by demonizing them as individuals or undermining
their larger political objectives. By developing a clearer typology of war crimes accusations, this
paper endeavors to shed light on how different actors make use of war crimes discourses, and the
different purposes for which those accusations are intended. Eventually, this typology can be
used to better understand the ways that the establishment of the International Criminal Court and other types of judicial processes impacts the politics of international violence.

Author

• Michael J. Struett, North Carolina State University