Ilias Bantekas
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Punishment in warfare and the application of law
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Humankind has enjoyed a rich history of wars, ever since men could organise themselves into fighting units against adversary forces. While international law categorically sanctioned the resort to war other than for legitimate self-defence, the family of nations has since time immemorial, whether individually or collectively, attempted to regulate personal conduct in warfare. After the Thirty Years War, which was terminated with the 1648 Peace Treaty of Westphalia, war became an interstate affair, rather than as previously a personal feud between princes. This chapter examines the evolution of custom in international humanitarian law and the elements that demonstrate evidence of state practice and opinio juris with regard to criminalisation. Wright, in his comments to the concluding Law Report of the allied trials of World War II, claimed that the punishment of war criminals had 'been recognised by the practice of nations and [was] part of the traditional law'.

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