The Nexus Requirement for War Crimes

Extract

1. Introduction

Not all crimes committed during an armed conflict constitute war crimes. It is widely held in case law and legal literature that, in order to qualify as a war crime, criminal conduct must be ‘closely related to the hostilities’.¹ This relationship between armed conflict and conduct, termed ‘nexus’ (or ‘link’), serves to distinguish between war crimes, on the one side, and ‘ordinary’ crimes committed during — but unrelated to — an armed conflict, on the other.²

The nature of this nexus requirement under current international law and the means to prove it, though theoretically distinct questions, are two closely intertwined matters, especially in the context of criminal trials. Prosecuting authorities in criminal proceedings dealing with alleged war crimes will have to prove the existence of this nexus beyond reasonable doubt on the basis of various indicia. One of the most problematic aspects of this exercise is that courts have not often made findings about the nexus requirement explicitly. This is probably due to the fact that in most war crimes prosecutions the nexus between the armed conflict and the alleged criminal conduct is self-evident and does not warrant any distinct or separate analysis by the judges. Be that as it may, it should be pointed out that case law is not always clear in establishing guiding principles to ascertain the contours of customary law dealing with the nexus.