2015 Joint Series: Application of IHL by National Courts

In the fifth installment of our Transatlantic Dialogue Series, Professor Jeff Kahn addresses the role of national courts in interpreting and applying IHL. Mr. Kahn is a Professor of Law at Southern Methodist University. The views expressed in this article are the author's own and do not necessarily reflect those of the ICRC or the other blogs taking part in this series.

Here's a taste:

Ypres, Belgium, 1917. Australian soldiers wear masks to protect themselves from poison gas. Chemical weapons were widely used during the First World War, causing death or terrible injuries. The 1925 Geneva Protocol prohibited the use of asphyxiating and poisonous gases in war. © Imperial War Museum London / hist-00687-01

Ypres, Belgium, 1917. Australian soldiers wear masks to protect themselves from poison gas. Chemical weapons were widely used during the First World War, causing death or terrible injuries. The 1925 Geneva Protocol prohibited the use of asphyxiating and poisonous gases in war. © Imperial War Museum London / hist-00687-01

The use of national courts to enforce IHL is a recurring historical theme, although not always a theme of successful enforcement.  After World War I, Germany insisted on prosecuting its own alleged war criminals in its own courts.  This resulted in low rates of conviction and modest punishments.  This minimalism encouraged use of international military tribunals after World War II.  Still, national courts were far from displaced: the Allied nations prosecuted lower-ranking defendants in national courts they set up in Occupied Germany, in many respects continuing the role played by national courts presiding over cases of offenders and victims, nationals and foreigners, throughout the war. 

States Parties to the Geneva Conventions agree to “provide effective penal sanctions” for grave breaches to the Conventions.  The ICRC reminds us that “the criminal repression of serious violations of IHL remains primarily the responsibility of States,” in particular “war crimes allegedly committed by their nationals or armed forces, or on their territory.” 

Read her full post on Lawfare.

Other posts in this series:

  1. Introduction to the 3rd Annual Transatlantic Workshop on International Law and Armed Conflict
  2. Direct participation in hostilities: what are the issues and where are the controversies? - Professor Marco Sassoli, University of Geneva, September 8 on Intercross
  3. Querying the Roles for Human Rights Bodies in the Interplay between International Human Rights Law and International Humanitarian Law - Professor Joanna Harrington, University of Albert Law School, September 10 on Lawfare
  4. Application of IHL by National Courts - Dr Lawrence Hill‐Cawthorne, University of Oxford, September 15 on  EJIL:Talk 
  5. The Development of International Humanitarian Law by International Criminal Courts and Tribunals - Professor Sandesh Sivakumaran, University of Nottingham, September 17 on Intercross.
  6. Humanitarian Relief Operations: Professor Dapo Akande, University of Oxford & Emanuela Gillard, United Nations,  Sepember. 24 on EJIL:Talk