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Inventing the War Crime: An Internal Theory
Witt, John
Witt, John
Abstract
This Article offers a novel account of how and why the war crime arose as a legal concept in the late nineteenth and twentieth centuries. The reason was not new horrors and atrocities, though to be sure there were all too many of those. Nor was the war crime born of any special moral insight, Instead, new procedural and jurisdictional imperatives internal to the constitutional Iaw of the United States-the most bellicose State in the Euro-American world during the mid-nineteenth century --presented the occasion or the war crime idea. Jurists and soldiers elaborated the war crime as a category separate and distinct from ordinary crime in order to manage the special constraints placed by the United States Constitution on criminal prosecutions. While navigating such constitutional obstacles to the punishment of Mexican guerrillas and Confederate soldiers, American jurists coined the phrase 'var crime" and cemented the modern concept to which it is attached.