The Law of War and its Many Distinctions

Abstract

This chapter focuses on the law of war and its many distinctions. The supreme distinction in this book is between lawful and unlawful. However, in the law of war, the distinctions multiply beyond control. Whether troops fighting abroad constitutes war is itself a disputed question; there has been a tendency in recent years to use “armed conflict” or “police action.” For the purposes of analyzing the Rome Statute and, in particular, Article 8 on war crimes, one has to assume an international perspective. Most countries in the international legal order are not democracies, and the internal allocation of power is not relevant to whether they violate Article 8. The complexity of Article 8 challenges the mind, with at least 50 distinct offenses. The chapter then elaborates on the perspectives necessary to grasp the general structure of war crimes in the international legal order.