Doctrinal Innovation in International Criminal Law: Harms, Victims, and the Evolution of the Law

There seems to be no limit to the kinds of atrocities that are committed during armed conflicts. During World War II, the Nazi regime committed unprecedented horrors that no legal system had foreseen. During the wars in Sierra Leone in the 1990s, combatants engaged in forms of cruelty that the law had not anticipated. Even now, in the conflict in Syria, combatants are using novel weapons to inflict harms for which the law cannot fully account. When faced with novel harms, how should prosecutors respond? They cannot simply create from whole cloth a brand-new crime; doing so would violate the defendant's rights. And they cannot simply ignore the conduct if they are to do their jobs effectively and deliver justice to victims and perpetrators. This Article shows how prosecutors can accomplish these seemingly contradictory goals. I argue that when faced with novel conduct, prosecutors should rely on a three-step process. First, they must identify with some precision the harms associated with the allegedly criminal conduct. Second, they must show that these harms are similar in type and magnitude to harms associated with established crimes. Third, they must show that the new crime is different enough from the established crime to justify using the novel crime. Using a harms-based approach will allow prosecutors to address novel harmful conduct more effectively and will help to ensure that harms that have been ignored for too long will be treated more appropriately. For much of the history of armed conflicts, harms inflicted on women and girls were either ignored or woefully inadequately addressed. A harms-based approach can begin to close this accountability gap by ensuring that wrongful conduct, regardless of the status of the victim, is fully addressed.