This article has been authored by Rasmika Gosh
‘Thou shall not steal, but if you do, do it decently’ – this appears to be the underlying principle governing the laws of armed conflict, that is, International Humanitarian Law (“IHL”). IHL acknowledges that armed conflicts cannot be prevented, but by regulating the conduct of parties at war, it aims at minimizing the suffering caused by such conflicts. Broadly, IHL is constituted by the four Geneva Conventions of 1949, Treaties regulating the use of certain weapons and protection of certain objects and the statutes of International Courts and tribunals- governing crimes and jurisdictions. The Rome Statute, establishing the International Criminal Court (“ICC”) is one of the most significant authorities on IHL. Apart from these sources, the implementation of IHL continues to evolve through the decisions and opinions rendered by international courts and tribunals, considering the evolving nature of warfare. This process by which international courts and tribunals progressively expand their jurisdiction beyond the mandated limitations while interpreting and applying IHL, in the interest of justice, has been termed as the humanization of warfare. However, such utilitarian application of IHL rules, could potentially distort time-tested IHL rules and lead to the criminalization of formerly lawful military operations or compromise the protection accorded to vulnerable communities during an armed conflict.
Before critically appraising the judicial creativity of International Courts and tribunals and its impact, certain instances of such creativity and the consequent responses must be recalled. In the Prosecutor v. DuskoTadićcase (“Tadićcase”), before the International Criminal Tribunal for Yugoslavia (“ICTY”). In this case, the Appeals Chamber redefined notions of an armed conflict and an internationalized armed conflict and recognized the applicability of customary IHL rules to both international as well as non-international armed conflicts. The findings of the ICTY in the Tadićcase, have been widely accepted and have significantly contributed to the development of IHL. In the Prosecutor v .Kupreškićcase, the ICTY convicted the defendant on the basis of customary IHL norms, relying on opinion juris, yet failed to establish the existence of any State practice regarding the prohibition of reprisals against civilians. This decision lacked due regard for the existing State practice and sets a dangerous precedent, implying that the function of international law prioritizes what the law should beover a retrospective assessment of what the law is. In the Prosecutor v. Thomas Lubanga Dyilocase, the ICC expanded the scope of active participation of child soldiers in hostilities to include finding or acquiring food. Consequently, the protection accorded to children associated with armed conflicts gets significantly reduced. In the Prosecutor v. Ahmad Al Faqi Al Mahdi case, the defendant was convicted for the destruction of cultural property, under Article 8(2)(e)(iv) of the Rome Statute. However, the Court did not establish that Al-Mahdi engaged in an “attack” as defined under IHL and existing case laws, which sets a detrimental precedent. In Prosecutor v. Bosco Ntagandacase, the ICC Appeals chamber went beyond the boundaries of customary IHL and held that the acts of rape and sexual slavery committed against members of an organized group by members of the same group, constitute a war crime, thus, classifying member-on-member violence as a war crime and expanding the scope of humanitarian protections.
Now, the aforementioned cases have garnered mixed responses. On the one hand, the commitment of the Courts towards the humanization of warfare has been lauded, but on the other hand, it has also been recognized that Courts and tribunals need to be mindful of how far they distort IHL rules.
Theoretically, the ICC is not bound by precedents or judgements rendered by tribunals, yet, with an aim to establish uniformity and maintain stability, the Courts tend to adhere to precedents and previous findings. This makes it all the more important to ensure that the distortions of IHL by Courts and tribunals are not potentially detrimental. IHL rules must be cognizant of the balance required between addressing military needs and humanitarian protections during an armed conflict and must strive to maintain it. While criminalizing conduct that is not specifically regulated by IHL, Courts must not expand their interpretation so much as to cause confusion among military operators and restrict them from performing awful acts because of a probable risk of criminal consequences of such acts. For instance, re-interpreting the concept of an “attack” could have major legal as well as practical consequences for military personnel.
While discussing the consequences of distortion of IHL rules by International Courts and Tribunals, one cannot ignore the role of States. One of the core foundations of international law, is the consent of the State parties. When International courts and tribunals expand their jurisdictionor creatively interpret the norms of IHL, an onus falls upon the States to either validate or reject such re-interpretation. They cannot remain indifferent, as that would indicate that any judicial findings are entitled to the implicit acceptance of States.
In light of the principles and objectives of IHL, International Courts and tribunals must strive to maintain a balance between judicial creativity and overstepping their mandates. Judicial creativity is essential and restricting the same would impede the evolution of IHL in tandem with evolving realities of warfare; however, such creativity and distortion of IHL rules must be performed with caution and within limits, so as to ensure that neither the military operators nor the protected persons are disproportionately affected.
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