2015 Joint Series: The Development of International Humanitarian Law by International Criminal Courts and Tribunals

In the fourth installment of our Transatlantic Dialogue Series, Professor Sandesh Sivakumaran discusses the role that International courts and tribunals have played in developing International Humanitarian Law. Mr. Sivakumaran is a Professor of Public International Law. He is also a non-resident research fellow at the United States Naval War College Stockton Center for International Law and a member of the advisory board of Geneva Call.  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. - 

Joint Series Part IV

Courtroom 1 in session at the The International Criminal Tribunal for the former Yugoslavia (ICty).  http://www.icty.org/   

Courtroom 1 in session at the The International Criminal Tribunal for the former Yugoslavia (ICty).  http://www.icty.org/ 

International courts and tribunals have played an important role in the development of international humanitarian law (IHL). [I use ‘development’ in a neutral sense, without regard for whether the developments are good or bad]. Indeed, I would go so far as to say that, today, we cannot properly understand IHL without considering the jurisprudence of international courts and tribunals. This includes standing courts such as the International Court of Justice, as well as sometimes overlooked bodies such as the Eritrea-Ethiopia Claims Commission.

Of particular note is the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). The Appeals Chamber in Tadić made important contributions to IHL, for example, on the notions of an international armed conflict, a non-international armed conflict, and the internationalization of the latter; on the geographical and temporal scope of application of IHL; and on the substantive law of non-international armed conflict. Although Tadić was not typical of ICTY jurisprudence in this regard – perhaps representing the high-watermark of judicial development of IHL – other ICTY case law has also proven influential.

International courts and tribunals have been able to develop IHL due to the particular cases that have been brought before them. The extent to which any court is able to develop a particular body of law turns on such matters as: the mandate of the institution, its jurisdiction, the subject matter of the cases that are brought before it, and the arguments of the parties. Opportunity matters. This explains why the ICTY has made a far greater contribution to the development of IHL than the International Criminal Tribunal for Rwanda. Many of the prosecutions brought before the latter were in respect of genocide and crimes against humanity rather than for war crimes.

The role played by international courts and tribunals in the development of IHL has been important for another reason. The interpretation and application of IHL tends to take place behind closed doors. States make the occasional public pronouncement, and their military manuals can be influential, but by and large, states interpret and apply IHL in private. Likewise, the International Committee of the Red Cross issues influential statements and produces highly regarded publications, but its day to day work is done confidentially. By contrast, the judgments of courts and tribunals are public, as, usually, are the arguments put before them.

Nonetheless, a certain care must be taken when having recourse to the work of international courts and tribunals on IHL, in particular the jurisprudence of international criminal courts and tribunals. The relationship between IHL and international criminal law is a close one, but the two bodies of law are not identical. In certain respects, they can be misleadingly similar. War crimes are serious violations of IHL that give rise to individual criminal responsibility. In essence, then, the core of a war crime is a violation of IHL. The close relationship between IHL and war crimes explains why the ICTY had to interpret and apply IHL, when judging the innocence or guilt of an accused.

However, the severity element of war crimes means that IHL is not the same as war crimes law. The two bodies of law sometimes differ in their content. For example, Article 4(3)(c) of Additional Protocol II provides: ‘children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities’. By contrast, Article 8(2)(e)(vii) of the Rome Statute of the International Criminal Court criminalizes ‘[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’. The Additional Protocol II prohibition is on the participation of children in hostilities; but only the active participation of children in hostilities is criminalized in the Rome Statute. To take another example, Article 51(5)(b) of Additional Protocol I prohibits ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’ By contrast, Article 8(2)(b)(iv) of the Rome Statute criminalizes attacks that would be ‘clearly excessive’. The differences between the IHL standards and the international criminal law standards might be understandable given the severity element of war crimes and the fact that war crimes entail individual criminal responsibility. But crucially, the war crimes standard is not the same as the IHL standard.

Care also needs to be taken in other respects. For example, IHL operates in real time, whereas international criminal law is backward looking. Again, the proportionality test usefully illustrates the point. It involves an assessment of the incidental loss ‘expected’ and the military advantage ‘anticipated’. This must be kept in mind when judging an attack that has already taken place. Thus, the jurisprudence of international criminal courts and tribunals is important in interpreting IHL, but IHL is different from international criminal law in certain respects. The two should not be conflated.

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. Application of IHL by National Courts - Professor Jeff Kahn, Southern Methodist University, September 22 on Lawfare
  6. Humanitarian Relief Operations: Professor Dapo Akande, University of Oxford & Emanuela Gillard, United Nations,  Sepember. 24 on EJIL:Talk