States Turn to Civilian Punishment When Defeated
International criminal law lacks a specific charge for the deliberate, large-scale destruction of civilian infrastructure, a gap a new white paper aims to fill by establishing Mass Destruction as a crime against humanity. Professor David M. Crane, the founding Chief Prosecutor of the Special Court for Sierra Leone, argues that current statutes do not adequately cover situations where a state chooses to attack civilians and infrastructure not to win militarily, but simply to punish them for losing.
Crane proposes that the international community can create this new category by expanding the definition of an “other inhumane act” within the Rome Statute. This legal mechanism has been used before, such as when it was successfully applied to create the crime of forced marriage during the Sierra Leone conflict. The proposed crime would focus on the “gravamen” of the offense: the wanton destruction of persons and objects without any militarily necessary reason.
The term Mass Destruction was chosen to distinguish this conduct from existing charges like “wanton destruction” or “urbicide.” While those labels might be limited in scope, Mass Destruction captures a broader policy of systematically beating down a civilian population out of frustration or revenge rather than a strategic military goal.
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Crane’s proposal stems directly from observations of recent conflicts. He notes that the Russian Federation began attacking Ukrainian infrastructure after military options diminished, and that Israel’s operations in Gaza eventually moved beyond defeating Hamas to a broader campaign of destroying the territory itself. In both instances, the actions lacked a clear military necessity, fitting the profile of the new crime.
Legal scholars often debate the pace at which international law evolves, typically reacting to atrocities only after they have already occurred. Crane argues that this timeline does not necessarily hinder justice, as prosecutions can—and should—happen during active conflicts to capture the full scope of criminal enterprise.
The framework could theoretically apply to non-state actors as well, provided they have the capacity to inflict mass destruction. The crime is defined by a general intent to beat down a population without the specific aim of destroying a group in whole or in part, which differentiates it from genocide. This distinction allows prosecutors to target state policy that punishes civilians for a loss on the battlefield.
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Modern investigations would likely rely heavily on satellite imagery and commercial remote-sensing data to prove the scale of destruction. While these commercial tools offer immense capacity, Crane suggests prosecutors should not be dependent on them. He emphasizes that traditional evidence like witness testimonies, demonstrative materials, and expert analysis remains vital. A proper legal foundation for any evidence, whether gathered commercially or on the ground, is essential for a conviction.
As autonomous weapons systems and artificial intelligence advance, the principles of international humanitarian law still require human operators to ensure targeting is militarily necessary. If an AI system destroys civilian infrastructure without this justification, it would still fall under existing war crime statutes, though the sheer volume and speed of such attacks could complicate accountability.
Environmental damage often lingers long after hostilities end, contaminating water sources and soil. Crane views this ecological harm as significant evidence of a state’s intent to punish a civilian population. Attacks that degrade the environment without military necessity are automatically potential war crimes, and they can serve as proof that a state is invoking Mass Destruction as a matter of policy.
