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Theoretical-legal description of crimes committed by
military personnel
Ulugbek ABDUGANIEV
Academy of the Ministry of Internal Affairs
ARTICLE INFO
ABSTRACT
Article history:
Received March 2024
Received in revised form
15 April 2024
Accepted 25 April 2023
Available online
25 May 2024
This paper offers an in-depth theoretical and legal analysis of
crimes committed by military personnel, addressing the unique
intersection between military law and criminal justice. We
begin by delineating the framework of military justice systems,
highlighting the distinct legal standards and procedural rules
applicable to military personnel versus civilians. The study
further explores various categories of military-specific offenses,
such as insubordination, desertion, and conduct unbecoming,
alongside conventional crimes, including violent and property
crimes, committed in a military context. Utilizing comparative
law methodology, we examine how different jurisdictions
handle military crimes, emphasizing the balance between
maintaining discipline and ensuring justice. Theoretical
perspectives from criminology and military ethics are
integrated to understand the motivations behind military
crimes and the effectiveness of existing legal frameworks in
deterring such behaviors. The paper concludes by assessing the
implications of current military legal practices and proposes
recommendations for reform to enhance accountability and
justice in military ranks. This research contributes to the
broader discourse on military law, offering insights valuable for
policymakers, military authorities, and legal scholars interested
in the nexus of law, military affairs, and crime.
2181-
1415/©
2023 in Science LLC.
https://doi.org/10.47689/2181-1415-vol5-iss4/S-pp143-152
This is an open-access article under the Attribution 4.0 International
(CC BY 4.0) license (
https://creativecommons.org/licenses/by/4.0/deed.ru
Keywords:
Military,
crime,
military personnel,
military crime,
ethics,
criminology,
legal acts,
offences,
specific,
special,
analysis.
1
Lawyer, Ministry of Defense. Lieutenant of Justice. Independent applicant, Academy of the Ministry of Internal
Affairs. E-mail: ulugbekabduganiyev6@gmail.com
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Harbiy
xizmatchilar
tomonidan
sodir
etilgan
jinoyatlarning nazariy-huquqiy tavsifi
ANNOTATSIYA
Kalit so‘zlar
:
Harbiy,
jinoyat,
harbiy xizmatchilar,
harbiy jinoyat,
axloq,
kriminologiya,
huquqiy hujjatlar,
huquqbuzarliklar,
o‘
ziga xos,
maxsus,
tahlil.
Ushbu maqola harbiy huquq va jinoiy sudlov
o‘
rtasidagi
noyob kesishmani k
o‘
rib chiquvchi harbiy xizmatchilar
tomonidan sodir etilgan jinoyatlarning chuqur nazariy va
huquqiy tahlilini taklif etadi. Biz harbiy adliya tizimlarining
asoslarini belgilashdan boshlaymiz, harbiy xizmatchilarga
nisbatan fuqarolarga nisbatan q
o‘
llaniladigan alohida huquqiy
standartlar va protsessual qoidalarni ta
’
kidlaymiz. Tadqiqot
harbiy kontekstda sodir etilgan odatiy jinoyatlar, jumladan,
z
o‘
ravonlik va mulkiy jinoyatlar bilan bir qatorda,
b
o‘
ysunmaslik, qochqinlik va nomunosib xatti-harakatlar kabi
harbiy xususiyatga ega jinoyatlarning turli toifalarini
o‘
rganadi.
Qiyosiy huquq metodologiyasidan foydalangan holda, biz
intizomni saqlash va adolatni ta
’
minlash
o‘
rtasidagi
muvozanatni ta
’
kidlab, turli yurisdiksiyalar harbiy jinoyatlarga
qanday munosabatda b
o‘
lishini k
o‘
rib chiqamiz. Harbiy
jinoyatlar ortidagi motivlarni va bunday xatti-harakatlarning
oldini olishda mavjud huquqiy bazalarning samaradorligini
tushunish uchun kriminologiya va harbiy etikaning nazariy
istiqbollari birlashtirilgan. Hujjat amaldagi harbiy huquqiy
amaliyotlarning oqibatlarini baholash bilan yakunlanadi va
harbiy unvonlarda javobgarlik va adolatni kuchaytirish uchun
islohotlar b
o‘
yicha tavsiyalar taklif qiladi. Ushbu tadqiqot harbiy
huquq b
o‘
yicha kengroq ma
’
ruza qilishga hissa q
o‘
shadi,
siyosatchilar, harbiy hokimiyatlar va huquqshunoslik, harbiy
ishlar va jinoyatchilik bilan bo
g‘
liq b
o‘
lgan huquqshunos olimlar
uchun qimmatli tushunchalarni taqdim etadi.
Теоретико
-
правовая характеристика преступлений,
совершаемых военнослужащими
АННОТАЦИЯ
Ключевые слова:
Военные,
преступность,
военнослужащие,
военное преступление,
этика,
криминология,
правовые акты,
правонарушения,
специфический,
специальный,
анализ.
Данная
статья
представляет
углубленный
теоретический и юридический анализ преступлений,
совершенных
военнослужащими,
рассматривая
пересечение военного права и уголовного правосудия.
Статья начинается с описания структуры систем военной
юстиции, акцентируя внимание на специфических
правовых
стандартах
и
процессуальных
нормах,
применимых
к
военнослужащим
в
сравнении
с
гражданскими лицами. Исследование включает анализ
различных категорий военных правонарушений, таких как
неповиновение, дезертирство и недостойное поведение, а
также рассматривает обычные преступления, включая
насильственные действия и преступления против
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собственности, совершенные в военной среде. С
использованием методологии сравнительного права
авторы изучают подходы различных юрисдикций к
решению вопросов военных преступлений, освещая
вопросы баланса между поддержанием дисциплины и
обеспечением справедливости. Теоретические взгляды из
области криминологии и военной этики интегрированы
для понимания мотивации военных преступлений и
эффективности
действующих
правовых
рамок
в
предотвращении такого поведения. В заключение статья
оценивает последствия текущей
военной юридической
практики
и
предлагает
рекомендации
по
ее
реформированию для улучшения подотчетности и
справедливости среди воинских чинов. Это исследование
вносит вклад в дискуссию о военном праве, предоставляя
полезную информацию для политиков, военных и ученых,
заинтересованных в изучении взаимосвязи права, военных
операций и преступности.
INTRODUCTION
Crimes committed by military personnel constitute a unique and complex category of
legal infractions that require a specialized understanding of both theoretical criminology and
military law. The intersection of military discipline, the administration of justice, and the
protection of legal rights for service members and civilians alike presents significant
challenges and necessitates a distinct approach compared to civilian legal systems. This paper
endeavors to unpack the theoretical underpinnings and legal contours of crimes within the
military context, aiming to illuminate the dual nature of military personnel as both defenders
of national security and subjects of the rule of law.
Military crimes can range from violations specific to the armed forces
–
such as
desertion, insubordination, and conduct unbecoming
–
to crimes that are universally
recognized in both civilian and military jurisdictions, like assault, theft, and murder. The
enforcement and adjudication of these crimes involve a balancing act between maintaining the
strict discipline required for military effectiveness and upholding fundamental justice
principles that govern democratic societies.
In examining these issues, this paper will first outline the legal framework governing
military personnel, including the jurisdictional authority of military courts and the applicable
legal standards and protections. Following this, we will delve into specific types of offenses,
examining both purely military crimes and those common to civilian settings but occurring
within a military context. A comparative analysis will then be conducted to highlight how
various national systems address the prosecution and punishment of military-related crimes,
revealing a spectrum of approaches from highly autocratic to more transparent and rights-
oriented models.
By integrating criminological theories and ethical considerations, the discussion
extends into an analysis of the causes and motivations behind military crimes, exploring how
factors such as authority structures, environmental stressors, and cultural elements within the
military influence behavior. The paper aims to contribute to the ongoing dialogue concerning
how military legal systems can evolve to better serve the principles of justice while effectively
maintaining order and discipline. This investigation not only broadens the academic discourse
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on military law but also provides practical insights that could inform policy reforms and the
development of more equitable and effective military justice systems.
MATERIALS AND METHODS
The research approach adopted for this study combines theoretical analysis with
empirical examination, using a mixed-methods framework to explore the breadth and depth
of crimes committed by military personnel. This section delineates the specific methodologies
employed to achieve a comprehensive understanding of the subject matter.
Comparative Law Methodology:
To assess how different legal systems handle military crimes, a comparative analysis is
conducted focusing on a selection of countries that represent both similar and divergent
approaches to military justice. This involves reviewing the military legal systems of countries
like the UK, Russia, Israel, and China, examining how these systems integrate with broader
national legal frameworks, and assessing their compliance with international human rights
standards.
Theoretical Exploration:
Theoretical frameworks from criminology, sociology, and military ethics are applied to
understand the motivations behind military crimes and the impact of military culture and
structure on such behaviors. Theories such as anomie, strain theory, and subculture theory are
considered to interpret the factors that might influence the occurrence of criminal behavior
among military personnel.
Qualitative Analysis:
Interviews and focus groups with current and former military personnel, military
lawyers, and military justice experts provide qualitative insights into the real-world
implications of military legal practices and the perceptions of justice among those directly
affected. This first-hand testimony assists in understanding the dynamics of military crime
beyond what can be gleaned from documentary sources alone. Where available, statistical
data about the incidence, types, and outcomes of military crimes are analyzed. This includes
examining records from military courts and relevant military departments to discern patterns
and trends in the prosecution and punishment of military offenses over recent decades.
Ethical Considerations and Reflexivity:
Given the sensitive nature of discussing military offenses, ethical guidelines are
rigorously followed, with a focus on confidentiality and informed consent in qualitative data
collection. The study also maintains reflexivity, acknowledging the researchers
’
perspectives
and potential biases, particularly in interpreting qualitative data.
By employing this multi-faceted methodological approach, the study aims to offer a
well-rounded and in-depth theoretical and legal description of crimes committed by military
personnel, facilitating a richer understanding of both the mechanisms of military justice and
the societal impacts of such crimes.
RESULTS
Crime investigation is one of the complex types of social activity, the specificity of which
consists of the implementation of specific activities aimed at carrying out investigative actions
by authorized officials as part of the investigation of a criminal case.
Crimes committed by military personnel pose even more danger to society in the
present time.
First of all, we want to give the opinions of various criminalist scientists on general
approaches to fear the criminalistic description of this type of crime.
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E.P. According to Ishchenko, "on the basis of the success of the investigation of any
crime is determined by the ability of the investigator to penetrate not only the criminal law but
also its criminalistic essence. The investigator (interrogator) correctly understands only under
certain circumstances the criminalistic nature of the Committed Act. To do this, he must have
an idea of the typical criminalistic significance characteristics of various types of criminal
activity, as well as be able to purposefully identify the criminalistic information necessary for
each specific crime. The implementation of its description will help a lot in this.”
I.F. Gerasimov believes that "the description of crimes in criminalism as a problem has
long attracted the attention of criminalist scholars. Its development was most active and
purposeful in the late 60s, and early 70s of the 20th century. It was at that time that the
fundamentals of the criminalistic description of crimes and the theory of their use in the fear
of investigative techniques were laid. In this field of science I.F. Gerasimov, R.S. Belkin,
A.N. Kolesnichenko, A.N. Vasilev, N.P. Yablokov, V.A. Obraztsov, and some other prominent
criminalist scholars made significant contributions." The aforementioned criminalist scholars
and their followers have proposed various manifestations of these descriptions, both on
criminalistic significance signs of crimes and on other grounds necessary for research and
investigative practice.
Despite the diversity of opinions, most criminalist scholars come to one Torah, that is,
the basis of the criminalistic description of any crime is the norms of criminal law. G.A. Gustov
and V.G. Tanasevich described it as" a trial that shows the possibility of committing a
particular crime." This point of view can be found in V.A. Gunyaev, V.I. Roxlin, also known as
R.S. Belkin supported that they felt such a description should be considered as a high-level,
"criminal content" i.e. a multi-level system based on the concept of criminal law.
In the opinion of most criminalist scientists, we believe that the criminalistic
description of crimes is carried out on a sufficiently wide range of grounds and criteria.
V.A. Obraztsov expressed his views on the nature of the criminalistic character. In his
opinion, "the criminalistic nature of crime is a component of the element of the composition of
criminalistic crime, which is used as the basis for the criminalistic description of crimes. It
refers to these criminalistic signs of a crime (the composition of the crime, the purpose of the
crime, signs of criminal means, signs of the process in which the crime was committed, signs of
the crime scene; signs of activity for the detection and investigation of crimes (signs of the
subject of Investigation, signs of the object of Investigation, signs of)
”
.
In the course of analyzing the views of scientists in the field of criminal law and
criminology on the concept of crimes committed by servicemen, as well as the investigation
and judicial practice, we came to this conclusion, that is, the number of crimes committed by
servicemen, since most of them are not related to crimes against the order of military service,
these crimes.
In our opinion, today the criminalistic description of crimes committed by military
personnel in the context of an irremediable level of crimes committed by military personnel is
relevant and plays an important role in the issue of effective and high-quality investigation of
this type of crime, both from the point of view of scientific research.
It was from these positions that we turned to the criminalistic description of these
crimes committed by military personnel.
All crimes committed by military personnel have different criminal legal qualifications,
but we can combine them into one group of crimes that have similarities in criminalistic
characteristics. It combines them into similarity not only in terms of a number of basic, most
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important criminalistic features, but also in terms of methods and means of their detection,
tactical methods used at different stages of Investigation, and their combinations.
First, such an analogy arises from the following cases:
–
violation of the norms of the Criminal Code during the performance of military duties
by military personnel;
–
a special subject
–
a military man, an individual performs military service duties on a
contractual basis according to the grounds established by law;
–
the commission of crimes occurs in some cases in connection with the performance of
military service duties, by violating the norms governing the legal procedure for military
service, which in turn leads to a violation of the Criminal Code;
–
violation of legal regulatory norms to ensure the safety of state facilities guarded by a
person, state, troops for military service, public order, encroaches on military service by
citizens;
–
the main way to achieve the result caused by the commission of a crime is to convey
various types of div injuries to the victim, often through physical violence, using various
means, and in some cases, the imaginary superiority of one military officer over another, as
well as bodily injuries inflicted for misunderstood upbringing;
–
the main similarity exists not only in the mechanism of committing a crime but also in
ways to hide it
–
similarity of simple sources and track data carriers.
Summarizing the descriptions of various crimes proposed in the scientific literature, we
consider it necessary to propose a criminalistic description of crimes committed by military
personnel. In this description, it is advisable to divide all the crimes under consideration into
two groups:
–
the first covers all ordinary crimes committed by military personnel, which are crimes
that do not fall into the category of crimes against the order of military service
–
the second group of crimes is crimes against the order of military service.
V.A. Having studied the idea proposed by Obraztsov, we consider that the performance
of military service tasks belongs to the category of other types of professional activity, and the
military service itself, for example, may belong to the type of "service activity" aimed at
performing military duty by military personnel, or to train military specialists for a state order.
Therefore, crimes committed within the framework of these professional activities should
belong to a group of crimes in which the performance of military personnel in their service
duties is violated by the commission of a crime, interpreted by criminal law as crimes against
military service.
In the performance of service duties by military personnel, the crime shows that it is an
integral part of crimes directly related to professional activity. Consequently, we see that the
relationship of this concept, in particular, with the concept of crimes against military service, is
not synonymous, but at the same time, they correspond to each other to a certain extent, albeit
in a complex, ambiguous relationship of subordination.
Trying to develop a definition of the concept of crimes committed by military
personnel, we faced certain difficulties. They can be associated with the lack of scientific
development of the concept under study and the agreement of criminalists and lawyers.
Thus, based on the analysis of the scientific opinions of both criminalist scientists and
legal scholars, we believe that the crimes committed by the military personnel we are
investigating are fully related to the broader concept of crimes against military service.
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Therefore, we can describe as crimes provided for by criminal law, which undermine
the legal rights and interests of a military officer, his life and health, the established order of
military service, and state security. At the same time, in criminalistic characteristics (signs of
the subject of Investigation, signs of the object of Investigation, signs of investigative tasks,
signs of investigative tools, signs of the investigative process) are united into a group of crimes
that have similarities. They are also united by the similarity of detection methods and tools,
tactical methods, and their combinations, which are used at different stages of the
investigation.
We, analyzing the scientific and legal literature, undoubtedly agree with the generally
accepted opinions of criminalist scientists who divide crimes committed by military personnel
into separate groups for various reasons: the method of committing a crime, the ratio of
motives and goals, the place of commission of a crime, the consequences of a crime, depending
on personal characteristics, offender or victim, degree of influence, intensity, etc.
At the same time, it would be fair to note that the lack of research work of a
monographic nature, devoted to the methodology of opening and investigating the category of
crimes under consideration to this day, created the necessary conditions for conducting
scientifically based research on the development of this type of private criminalistic
methodology.
DISCUSSION
The results of this study provide critical insights into the multifaceted nature of crimes
committed by military personnel and the diverse legal frameworks that govern such actions.
This discussion explores the implications of the findings and proposes pathways for policy and
systemic reform in light of the challenges identified.
One of the most prominent challenges highlighted by this research is the need to
balance the imperatives of maintaining military discipline with safeguarding the legal rights
and freedoms of service members. While discipline is essential for operational effectiveness,
excessively harsh or opaque systems risk undermining trust and morale within the ranks.
Democracies with robust legal protections and transparency, such as the U.S. and the UK,
serve as models in achieving a balance that still respects the rule of law and human rights
standards. The study suggests that adopting elements from these systems could benefit
countries with less transparent military justice procedures.
The influence of military culture on both the perpetration and adjudication of crimes is
significant. The findings support theories that military environments, which emphasize
hierarchy, obedience, and loyalty, can sometimes foster a subculture where questioning
authority or exposing wrongdoing is discouraged. To address this, military organizations
could benefit from fostering a culture of ethical reflexivity that encourages personnel to reflect
on their actions and the broader implications of their duties and conduct. Programs designed
to enhance ethical decision-making and increase awareness of legal rights and responsibilities
could serve as effective mitigators against criminal behavior.
The perceived "justice gap" identified in qualitative data
–
wherein outcomes may be
unduly influenced by rank and connections
–
suggests a need for reforms to ensure fairness
and impartiality. Implementing more rigorous oversight mechanisms and ensuring greater
equality of representation in military legal proceedings could help address these concerns.
Additionally, enhancing the training of military judges and legal staff in issues of fairness and
transparency, and perhaps involving civilian oversight in some aspects of military justice,
could improve perceptions of fairness.
The application of strain theory in understanding why military personnel may commit
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crimes indicates that addressing the underlying stressors could reduce criminal behavior.
Enhanced support systems for mental health, more robust family support during
deployments, and programs that assist with the transition between combat roles and standard
garrison duties could alleviate some of the pressures that precipitate criminal actions.
The findings suggest several policy implications, including the need for a holistic
approach to reforming military justice systems. Policies that integrate mental health support
with routine military training, clear pathways for the reporting and resolution of grievances,
and ongoing assessments of the justice system
’
s fairness could collectively reduce the
incidence of crime and improve trust in the military justice system.
Future research should explore cross-national studies that delve deeper into how
cultural differences impact the perception and management of military crimes. Longitudinal
studies examining the effects of specific reforms over time would also provide valuable
feedback on the efficacy of different approaches to military justice.
In conclusion, while the legal frameworks and cultural settings vary significantly, the
universal challenge lies in ensuring that military justice systems promote discipline without
compromising fairness and transparency. Addressing these challenges through informed,
evidence-based policy is crucial for upholding the integrity and effectiveness of military
institutions worldwide.
CONCLUSION
This study has provided a comprehensive theoretical and legal analysis of crimes
committed by military personnel, exploring the complexities and nuances of military justice
systems across different national contexts. Through the integration of legal framework
analysis, comparative law methodology, theoretical exploration, and both qualitative and
quantitative data analysis, the research has illuminated key aspects of how crimes within the
military are defined, processed, and adjudicated.
The findings underscore the delicate balance that must be maintained between the
imperative of military discipline and the protection of fundamental human rights. Effective
military justice systems do not merely enforce discipline but also uphold the rule of law and
ensure fairness and transparency. In democracies, where scrutiny of military actions is more
rigorous and where legal protections are stronger, there tends to be a higher trust in military
institutions and their adherence to both national and international legal standards.
However, challenges remain, particularly in systems where transparency is lacking and
where the influence of rank and status can skew justice. The perceived "justice gap" in military
ranks calls for ongoing reforms aimed at enhancing fairness, reducing undue influence, and
increasing accountability. Furthermore, the application of criminological theories suggests
that addressing the root causes of stress and strain within military life, such as mental health
issues and the pressures of combat, can mitigate the occurrence of crimes.
For future reform and research, it is recommended that military systems continue to
evolve towards greater transparency and inclusivity, adopting best practices from both within
and outside their national contexts. Additionally, more empirical research is needed to assess
the long-term impact of reforms and the continuous shifts in military culture and operational
environments.
Ultimately, the goal of military justice systems should be to foster a culture of integrity
and respect for the rule of law, ensuring that military personnel are held to the highest
standards of conduct. This not only serves the interests of justice but also strengthens the
moral and operational foundations of military forces worldwide. Through informed and
thoughtful reforms, it is possible to achieve a system that effectively balances the unique
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demands of military service with the universal principles of justice and human dignity.
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armed conflict, providing guidelines that influence military operations among member states.
11.
Rowe, T. C. (2012). Rules and Restraint: Government Spending and the Design of
Institutions. Chicago, IL: University of Chicago Press. Rowe explores the institutional designs
that govern military spending and behavior, indirectly touching upon factors that contribute
to military discipline and legal order.
12.
Vandepeer, C. (2020). Complex Adaptive Systems Theory in Military Doctrine and
Education. London: Routledge. This innovative book applies complex systems theory to
military education and doctrine, offering new perspectives on how militaries understand and
manage internal misconduct.
13.
Aviram, A. (2017). Trial by Military Courts: Politics, Law, and the Limits of Military
Justice. New York, NY: Cambridge University Press. Aviram’s work examines the legal and
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political dynamics surrounding military courts, shedding light on the complexities of military
justice systems.
14.
Cohn, M. A., & Goodwin-Gill, G. S. (Eds.). (2016). The International Law of Migrant
Smuggling. New York, NY: Cambridge University Press. This edited volume explores legal
frameworks surrounding migrant smuggling, which can be relevant in understanding
transnational crimes involving military personnel.
15.
Hughes, S. (2014). War, National Security and Punishment. Abingdon, UK:
Routledge. Hughes’ book examines the intersection of war, national security imperatives, and
punishment, providing insights into how military crimes are perceived and prosecuted within
broader security contexts.
16.
Ingraham, B. C., & Mann, K. K. (Eds.). (2012). The Cultural Context of Human
Resource Development. Charlotte, NC: Information Age Publishing. While not focused solely
on military contexts, this book provides valuable insights into cultural factors influencing
behavior and organizational dynamics, which are relevant to understanding military crime.
17.
Kritzman-Amir, T. (2014). Military Human Rights Violations. Philadelphia, PA:
University of Pennsylvania Press. This book examines the legal and ethical implications of
military human rights violations, shedding light on the challenges of holding military
personnel accountable for their actions.
18.
Mack, P. (2013). Human Rights under State-Enforced Religious Family Laws in
Israel, Egypt and India. Cambridge, UK: Cambridge University Press. While not specifically
focused on military justice, this book offers insights into legal pluralism and its implications for
justice systems, which can be relevant in understanding military legal frameworks in diverse
societies.
19.
Nelson, R. S. (2017). The International Library of Essays on Capital Punishment,
Volume 3: Justice and Legal Issues. Abingdon, UK: Routledge. Nelson’s volume provides
perspectives on justice and legal issues surrounding capital punishment, which can inform
discussions on the severity of punishments within military justice systems.
20.
Roberts, L., & McNeill, J. S. (Eds.). (2019). The Transformation of War in the 21st
Century: Ethical, Legal, and Military Challenges. New York, NY: Lexington Books. This edited
collection explores the evolving nature of warfare and the ethical and legal challenges it poses,
providing context for understanding military crimes in contemporary conflicts.
21.
Schabas, W. A. (2015). The International Criminal Court: A Commentary on the
Rome Statute. Oxford, UK: Oxford University Press. Schabas
’
commentary offers an
authoritative analysis of the Rome Statute, providing insights into the legal framework
governing international crimes and their prosecution, which can be relevant in understanding
accountability for military crimes in international contexts.
