"War Time" in International Criminal Law

I. Introduction

Mary Dudziak's insightful book chronicles the impact of the wartime narrative on US law and policy. Much of the political discourse in this country is framed around a binary notion of "times" being divided between war and peace. Wartime is the exception and, as a result, wartime discourse is used to justify exceptional policies, many of which conflict with our society's foundational norms of freedom and justice. Although the book's orientation is descriptive, Dudziak's project is clearly animated by her concern about the consequences of wartime framing. In particular, she is concerned about abuses of important individual rights in the name of national security.¹ The book concludes on a normative note: "When we understand that 'wartime' is an argument, rather than an inevitable feature of our world, then we can see that it need not cause us to suspend our principles. Our times do not determine our actions, they do not absolve us from judgment."² Dudziak's excellent book is therefore intended to stimulate discussion both about how wartime framing threatens important values and about how policy makers can resist the consequences of wartime rhetoric. This short essay takes up Dudziak's suggestion that we examine the effects of wartime framing by considering how such framing has impacted the development of international criminal law. Unlike some of the national policy areas that Dudziak examines, the importance of wartime thinking in the context of international criminal law has diminished over time. As the conclusion notes, this trend in international criminal law may contain a lesson for US law and policy.

II. Wartime Framing in International Criminal Law

The fiction that time can be divided into wartime and peacetime has been critical to the development of international criminal law from its inception. In peacetime, international law traditionally granted states almost complete liberty to structure and apply criminal justice as they saw fit. Times of war, however, have long been treated as the exception, justifying increased international intrusion on state sovereignty. The conclusion that a state of war exists changes the relationship between the states involved and the international community. In times of war, international law seeks to regulate state actions and, more recently, to hold accountable individual actors who violate international norms. Indeed, the idea that the existence of wartime justifies international intrusion on state sovereignty with regard to criminal justice was critical to the establishment of the seminal International Military Tribunal at Nuremberg (IMT). The IMT and the other post-World War II trials were justified largely on the grounds that the crimes at issue took place during wartime and, as such, the international community (or at least the Allies) had an interest in their adjudication. In other words, these trials were premised on the notion that time can be divided into wartime and peacetime, and that crimes committed in wartime concern the international community, while those committed in peacetime do not. The prosecution at Nuremberg challenged this boundary by seeking to include within the Court's mandate crimes the Nazis had committed before the official outbreak of war.³ The judges demurred, noting that while the pre-1939 crimes had been "revolting and horrible," heinousness alone did not justify international adjudication.⁴

Over time, however, international criminal law's reliance on the war/peace dichotomy has gradually eroded. In what can be seen as an implicit recognition of Dudziak's central point—that wars are constructs rather than particular periods in time—international criminal law has evolved to care less and less about them. This evolution started immediately after Nuremberg. In 1948, the United Nations General Assembly adopted the Genocide Convention, providing universal jurisdiction over a crime that can take place in wartime or peacetime.⁵ Additionally, the International Law Commission (ILC), charged with developing international criminal law, rejected the idea that the justification for international jurisdiction should rest entirely on the war/peace distinction. In codifying the Nuremberg Principles and drafting a Code of...