It is often argued that part of the durability of the rules of law during a war can be attributed to the concept of reciprocity. Soldiers respect the rights of prisoners of war, for example, because later in the war they may wind up as prisoners of the enemy, and then they will want their own rights to be respected. There is no doubt that reciprocity plays a role in strengthening the laws of war. But reciprocal "retaliation" can sometimes erode a rule. If the enemy bombs your civilian population centres, you may retaliate by bombing his. The bombardment of undefended civilian cities and towns was an established war crime well before the Second World War, yet, during that war the increasing escalation of retaliatory action chipped away at the rule.

At the time of the Nuremberg trials, there were no prosecutions specifically directed against pilots or their commanders for aerial bombardment of undefended civilian population centres.

My own view is that the laws of war are significant because of the oldest theory of criminal jurisprudence: deterrence.

Tonsider the following typical example: N., a soldier in a war has an opportunity to kill (or rape or torture) some defenseless civilians. Assume further that some other soldiers in his platoon are engaged in killing (or raping or torturing) civilians. We'll even assume that the war is particularly brutal and "total" from the soldiers' point of view. Clearly, N can proceed without any personal risk or immediate fear of punishment. He might hesitate for reasons of conscience, but we'll make the example stronger by assuming that N has no sense of moral obligation. The only thing that might deter him is the degree of his aversion to taking personal risk. If he believes that there is some chance, even if it is extremely small, of his being imprisoned in the future for the acts that he is considering now, he might hold back. He analyzes the situation from a risk vs. reward perspective. There is no reward for him personally if he engages in killing civilians. Given a reward of zero, and a risk of a very small positive number, the risk/reward ratio is unfavourable. N may be deterred.

Obviously I am not claiming that everyone will be deterred; people have different degrees of risk aversion. Indeed, I assumed that other soldiers in N's platoon were committing war crimes. But that is not a flaw in deterrence theory (murders in peacetime are not totally deterred by legal prohibitions). What is important is to establish a positive degree of personal risk for all soldiers who might be tempted to commit war crimes. Some and maybe a majority of soldiers may then be deterred.

This positive degree of personal risk is established in three ways. First, if N's side loses the war, he may be prosecuted for war crimes by the enemy after the war. Second, if N's side wins the war, his own country may court-martial him. Third, whether the war is won or lost, an international tribunal may prosecute him. This is the strongest possible way to deter criminal behaviour during war. We are now seeing a watershed development in human history: the establishment of war-crimes tribunals for Yugoslavia and for Rwanda, and the attainment a few months ago of a statute for a permanent International Criminal Court.

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