Operationalisation of legislation and the will of legislators in the judgments of international courts of war crimes and post-war recovery

Abstract

ABSTRACT If the substantive truth, the actual situation in a war and post-war recovery based on the consequences of the war, is seemingly easy to determine in law, the judgments of international courts deciding on cases which occurred during the war do not attest to this. Substantive law is important, but procedural law is perhaps more significant with regard to rulings on war and post-war recovery. Only the highest degree of certainty is sufficient for a final and enforceable judgment. One of the key conditions for reaching a final and enforceable judgment is the consideration of the substantive and procedural conditions of proof, which is not possible without legal, relevant and legitimate evidence. This article argues that it should not be forgotten that in cases of legal proceedings against a certain military commander, the country whose armed forces they commanded is also always involved. If a member of a certain armed forces is legally convicted or acquitted, the country on whose behalf they acted as a military person in a military unit of that country is also legally convicted or acquitted. So, in international judicial proceedings, the implementation of procedural legislation and the will of legislators in war and post-war recovery has a different meaning from ‘ordinary’ criminality. War, as an extreme form of human violence which results in the biggest and most tragic events experienced by a country and its population, requires special forms of proving the consequences of war actions. The International Humanitarian Fact-Finding Commission should perhaps play a much greater role in this than it currently does.