Unequal Enforcement of the Law: Targeting Aggressors for Mass Atrocity Prosecutions

It is a central tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party that illegally launches a war benefits from all the same rights as a party that must defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible and that defenders should have more rights and fewer responsibilities than aggressors. The equal application doctrine retains the support of legal scholars, however, because they reasonably fear that applying different rules to different warring parties will substantially reduce overall compliance with the international humanitarian law system as a whole. My Article seeks to bridge these divides. It does so by shifting focus from the application of international humanitarian law rules to the enforcement of these rules. Although a vast body of scholarship has centered on the equal application doctrine, none of it considers the way in which that doctrine intersects with post-conflict enforcement of international humanitarian law. On the one hand, such neglect is unsurprising because, historically, there was no post-conflict enforcement of international humanitarian law violations. However, in the last 25 years, a series of international criminal tribunals have been established to prosecute large-scale violations of international humanitarian law, among other crimes. The creation of these tribunals provides a powerful opportunity to reconceptualize and refashion the equal application doctrine. Specifically, this Article advocates unequally enforcing international humanitarian law as a means of bridging the divide between the moral imperatives that excoriate the equal application doctrine and the practical imperatives that
maintain it.