ABSTRACT
The prosecution of war criminals by the state was customary in nature, with the 1899 and 1907 Hague Conventions failing to provide a framework for the prosecution of individuals. Evidently, not all violations of international humanitarian law (IHL) constitute a war crime. Only violations of IHL which are 'serious' may constitute a war crime attracting international criminal jurisdiction, with less serious violations being subject only to national law and potentially giving rise to international responsibility on behalf of the party and not the individual. Just as not all violations of IHL constitute a war crime, so too must there be a nexus between the alleged violation and its occurrence within armed conflict. Under current tenets of international criminal law, for a war crime to be committed, there must always be a physical and mental element. With a past focused on punishment and justice, contemporary international criminal law faces a dilemma in its goal of strengthening compliance as well as deterrence.
