War crimes and the ruin of law

From Millennium – Journal of International Studies

The Criminal Tribunal for the Former Yugoslavia (ICTY) has acted as a prototype for international criminal justice in the aftermath of violent conflict and stated that ‘those who perpetrate horrific war crimes, genocide, and crimes against humanity will not go unpunished’. It poses the question if such differentiation between acceptable / unacceptable, justifiable / unjustifiable, and right / wrong war killings normalize and legitimize the brutal violence, injuries and deaths through war. This article considers the socio-political effects of the war crimes tribunal in terms of its conceptual impact on our collective understanding of war itself. it concludes with a number of strategies for rethinking what it means to account for violence. It argues that as tribunals function to exceptionalize certain behaviors in war as uniquely abhorrent perhaps pacifism is the only real alternative to work toward.


This article explores the manner in which the logic of the war crimes trial authorizes and legitimates the practice of war more generally. It proceeds from the recognition that all war involves injuring or the threat of injuring, and that articulating particular types of injuring as especially problematic takes as one of its effects the normalization of injuring in war more generally. The article queries the function of law through an analysis of the state of exception that is produced in the identification of ‘war crimes’. It argues that the logic of excision, which produces the political conditions in which war crimes become possible is structurally replicated through the excision of the perpetrator in the context of the trial. It also explores the manner in which the narrative strategies of what Elaine Scarry calls ‘active redescription’ associated with war render most war-related deaths and injuries politically invisible. The article concludes with a number of strategies for rethinking what it means to account for violence.

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Article details:
Dauphinee, E. (2008). War Crimes and the Ruin of Law Millennium – Journal of International Studies, 37 (1), 49-67 DOI: 10.1177/0305829808093730

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