25 Sensitization of International Bodies: interpretation of judicial decisions

Rohini Sen

Table of Contents

1. Learning Outcomes

2. Introduction

3. Courts and IHL

3.3 Subsidiary Source of International Law

3.2 Element of Armed Conflict

3.3 Nexus between Domestic and International Law

4. Role of IC

4.1 Gap-filling and law creation

4.2 The Court of Humanitarian Law

Learning Objective

• To give students an overview of the relation between International Court and IHL;
• By the end of the chapter, students will have an understanding of international human rights law as per judicial decisions.

2. Introduction

In the 1990s, the citizens of various countries in the Middle East and the North Africa started to protest against their dictatorial regimes. In response to the protestors, many regimes resorted to violent or fatal measures. There was a gross violation of human rights committed by these regimes. Some of these unpopular leaders were removed and subsequently were prosecuted in the national courts. However, it may be a challenge for the national courts to prosecute its former leader because of biases. It may undermine the effectiveness and ability of transitioning government to prosecute its former officials and heads. Peace-keeping after a conflict has become an internationally accepted norm. Thus, the national prosecution has an alternative of international courts including international criminal tribunals, for instance, the International Criminal Court in The Hague, Netherlands.

The link to armed conflict for prosecuting crimes against humanity was crystallized by ICC as ‘no’ by being the first international tribunal to formally remove “armed conflict” as a de jure or de facto requirement for crimes against humanity. ICC can adjudicate over national judiciaries only when national courts are unwilling or unable. Moreover, the presence of an ICC prosecution of crimes against humanity outside armed conflict can galvanize civil society groups and other national actors like embassy officials, lawyers, and judges to place stronger pressure on their governments in light of the prosecution. For instance, the UN Security Council issued warrants for arrest with reference to ICC against Gaddafi and his associated for violently killing hundreds of protestors under his regime in 2011.

3. Courts and IHL

3.1 A Subsidiary Source of International Law

Treaties and customs are the main sources of international law. The authoritative statement of the sources of international law in Article 38(1) of the Statute of the International Court of Justice likewise treats judicial decisions as a “subsidiary means for determination of rules of law”.Article 59 excludes the doctrine of stare decisis, the binding force of a judicial decision as a law-creating precedent.”Even though a judicial decision on a law is not binding it, however, does carry legal weight. A judgement can be persuasive depending upon its quality.

Though in practise courts consider the decisions of other tribunals but the Statute of the tribunals its does not attach any value to the decisions nor the precedents. For instance, the Rome Statute speaks to precedent within the International Criminal Court itself when it states in very general terms that the Curt “may apply principles and rules of law as interpreted in its previous decisions”.The constant reference to the case laws of other tribunals, as argued by some scholars, increases the danger of the field becoming “overly self-referential”. On the other hand, the decisions of Courts like Nuremberg and Tokyo reflects agreement amongst the States that created them and their constitutive instruments set down provisions that “were either declaratory of existing law or which had been gradually transformed into customary international law”.

3.2 Element of Armed Conflict

The classification of conflicts has a legal impact. The international law has traditionally been unable to prosecute perpetrators who have caused widespread domestic deaths because it was not an armed conflict. The existence of armed conflict triggers rights and obligations under the laws of war called the humanitarian law. The jurisdiction of international criminal courts only exists when there is an element of ‘armed conflict’. The International Criminal Tribunal for the Former Yugoslavia (ICTY) incorporated the armed conflict nexus requirement in the statute that created the ICTY. The ICTY, established by the UN Security Council in 1993 to deal with crimes of genocide, crimes against humanity and war crimes committed since 1991, is currently undertaking proceedings against about 90 people—most of whom were in leadership positions or were responsible for the large-scale crime. However, in the Prosecutor v Tadic, the Court the substantive elements required from crimes against humanity were eliminated though they still have loose effect for establishing jurisdiction. There has to be some essence of armed conflict in the crime but not requiring the act to be the part of hostilities. Thus, every case before the ICTY, occurring under the umbrella of the Yugoslav Wars, could have satisfied this element because the every case could be connected to that armed conflict. International Criminal Tribunal for Rwanda (ICTR) incorporated no requirement of substantial nexus but mandated armed conflict as an indirect jurisdictional element. Even, Special Courts of Sierra Leone had incorporated armed conflict directly to its statutes. The Special Court for Sierra Leone was established in January 2002 to bring to justice persons ‘who bear the greatest responsibility for war crimes and crimes against humanity’ in Sierra Leone’s long-standing internal conflict. Eventually, the Rome Statute, defining the jurisdiction of ICC, did away with the requirement of the nexus of armed conflict.

The international law lacks a definite definition of a domestic uprising becoming an armed conflict. However, the most commonly applied definition requires protracted conflict between armed groups. The Geneva Conventions and their Protocols do not delineate the threshold for armed conflict. It has been argued to use factor-based approach by weighing the organisation of parties, intensity of conflict, degree of violence, and duration to determine armed conflict.

The ICC addressed the presence of armed conflict in situations of DRC, Uganda, the Central African Republic, the Republic of Sudan (Sudan) and C ˆote d’Ivoire. DRC already has a well-established armed conflict. This situation dealt with the deadliest armed conflict since after World War II, the Second Congo War. In the situation of Uganda, the Court established ‘protracted’ armed conflict of five months. Sudan conflict, a decade-long, included allegations of genocide. The case features the first ICC arrest warrant for a sitting head of state, President Omar Hassan Ahmad Al-Bashir, and he is also the first defendant facing charges of genocide. Furthermore, the Prosecutor alleged that there was a protracted armed conflict between the Sudanese Armed Forces, the Popular Defence Force, and the Janjaweed militia against organized rebel groups. ICC also dealt with cases with an allegation of crimes against humanity but outside armed conflict, Kenya and Libya.

3.3 Nexus between Domestic and International Law

The parameter of IHL has broadened because of modern warfare. The nexus between the international and domestic laws helps in the evolution and implementation of the IHL by the Courts. The advantage can be analysed, for an instant, through ‘direct participation in hostilities’. The fact that terrorist groups like Hamas, Hezbollah, or Al Qaeda have developed into significant political actors, raises the question whether mere membership to these organisations is enough in order for an individual to be considered a legitimate target. There is no specific definition of direct participation in hostilities. Traditionally, the international law requires for civilians, to be a part of ‘direct participation’, not engaged in military action and suspected of terrorism. On the one hand, The blatant departure from the fundamental principles of international humanitarian law and on the other requires broad definition to cover preparatory stage of an attack. It has been noted that direct should not include support or affiliation to the adversary. It is also argued that if liberally interpreted then civilians would ultimately distant from the conflict. The domestic Supreme Court of US has, for instance, held that Hamdan was a combatant even though he was just a driver of Bin Laden. The preliminary stages before the actual use of force were included within the scope of direct hostilities by the Supreme Court of Israel.

Striking a balance between the protection of humanitarian rights and accommodating the shifting realities of the battlefield is important. The jurisprudence nexus between international court and the domestic court allows development of IHL is ensuring the balance. For instance, the Court of Appeal of England and Wales was guided to rule on what constitutes as terrorism by the dicta of an international tribunal, Appeals Chamber of the Special Court for Lebanon.

Role of IC

Judicial decisions as a subsidiary source may hamper the development of international law. Judicial decisions can bridge existing gaps, accommodate old laws in changing circumstances and push the boundaries for effective development of the laws.

4.1 Gap-filling and law creation

The International Court of Justice endeavoured to perform following three functions:

a) The former function, which considered in elucidating the existing law, and in defining and confirming it;

b) that of modifying, in conformity with the conditions of international relational, provisions which, though on the force have become out of date;

c) that of creating and formulating new precepts, both for old problems where no rules exist and also for new problems.

The issue of the gap in the international law has been referred as non-liquet which poses restriction in the evolution of the international law. Non-liquet is where the court concludes that the situation in a particular case has no answer from the governing system of law. A judicial decision is an apt tool to enforce Article 38(1)(c) of the ICJ Statute on general principles, i.e., “removing the last vestige of the possibility of gaps conceived as a deadlock in the way of the settlement of a dispute”. However, the decision has to be well within the limits of existing international laws. The application of general principles of humanitarian law through judiciary function will elaborate the meaning and their application to specific situations. The judges, as per the opinion of few scholars, should articulate the preferable law that should be applied to the circumstances to resolve conflict and avoid non-liquet. This function does not amount to judicial law-making. On the other hand, it is argued that “ the principle on which the Court acts, be it one of prohibition or one of authorization, leaves no room unoccupied by law and consequently no space available to be filled by the non-liquet doctrine or by arguments traceable to it”. It is, for instance, argued by the Nuclear States that the law permits the use of nuclear weapons under certain circumstances and has thus not expressly prohibited its use and doesn’t involve the matter of gap in the law. This approach may grant a degree of legality to everything that is not expressly prohibited, even though the law may be deliberately silent or neutral on the matter. While the Nuclear Weapons Advisory Opinion has been criticised as an “abdication of the judicial function” for permitting a non-liquet, it does highlight the differing interpretations of the non-liquet doctrine and the role of the international judge in addressing apparent gaps.

To fill the gap, the Court may create law when interpreting the existing law. Its decisions may not be categorized as more determination or elucidation of the law. Judicial development may amount to law-making. The traditional function of the judiciary is limited to find and apply the codified law which losing its ground domestically. There is blurry boundary which separates articulation of codified laws and its judicial legislation. Using creative approach, like purposive interpretation, the Court can expand its role and carry out the functions of legislation. This could eventually threaten the state sovereignty. However, if exercised within reasonable limits may not be a ‘destructive trap’.

4.2 The Court of Humanitarian Law

Contemporary humanitarian law is the outcome of a long normative process, whose more immediate origins date back to the late nineteenth century with the movement towards codification of the laws and customs of war. The Hague Law and Geneva Law are two prominent sets of rules. The International Court of Justice in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons stated that IHL contains rules regarding the conduct of hostilities and as well as those protecting persons in the power of the adverse party. The Court establishes that the fundamental ethical values of IHL are similar to that of human rights law. They both are concerned with human dignity. The Court recognizes the importance of applying human rights treaties even in the time of armed conflict. It also confirms that the provisions of Geneva and Hague Conventions are declaratory of customary law.

The rules of international law those are so fundamental to ensure international public order that the States cannot derogate from them forms the notion of jus cogens. The International Court of Justice has addressed the issue of jus cogens or related concepts, such as obligations erga omnes, in various contexts closely linked to humanitarian law, e.g. fundamental human rights, the prohibition of the threat or use of force, and the peoples’ right to self-determination. The obligation of erga omnes was first referred by the Court in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951. It held that outlawing genocide fell within the obligation of erga omnes.

The Court through a series of case laws has established various fundamental principles of IHL in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons:

Fundamental principles relating to the conduct of hostilities –

The principle of the distinction between combatants and non-combatants According to the Court, this principle:

“is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets”.

The distinction between non-combatant and combatant forms the cornerstone of all IHL. This basic principle derives from the axiom that is the very foundation of international humanitarian law, namely that only the weakening of the military potential of the enemy is acceptable in time of armed conflict. The judiciary acknowledges the principle of distinction, the prohibition of indiscriminate weapons and the prohibition of attacks against civilians. It confirms that the prohibition of the use of indiscriminate weapons is an integral part of the customary principle of distinction.

The prohibition of the use of weapons that cause superfluous injury or unnecessary suffering This prohibition is, by the Court, the second of “the cardinal principles (…) constituting the fabric of humanitarian law” on the conduct of hostilities:

“According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In the application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use.”

The Court defines “the unnecessary suffering caused to combatants” as “a harm greater than that unavoidable to achieve legitimate military objectives”. The assessment of the legality of a weapon or its use depends therefore on the balance between the degree of injury or suffering inflicted and the degree of military necessity, in the light of the particular circumstances of each case.36 The greater the military advantage, the greater will be the willingness to tolerate higher levels of suffering”.

The Martens Clause

A. The Court notes that:

“[T]he Martens Clause (…) was first included in the Hague Convention II with respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. A modern version of that clause is to be found in Article 1, paragraph 2, of Additional Protocol I of 1977, which reads as follows: ”In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’.”

The Court affirms that the Martens Clause is a customary rule. Thus it is of normative status which regulates the State conduct.

B. The treatment of persons in the power of the adverse party

In Military and Paramilitary Activities in and against Nicaragua, 1986, the Court laid down a minimum standard of humanity. The general principle of humanitarian law expressed in common Article 3 goes beyond the conventional restraints of the Geneva Conventions and applies to every type of armed conflict, whether internal or international.

C. The implementation of the international humanitarian law.

The case law of the International Court of Justice enables three basic rules governing respect for international humanitarian law to be drawn, namely: the obligation to respect and to ensure respect for humanitarian law; humanitarian assistance; and the prohibition of genocide.

Reference

• Shane Darcy, Judges, Law and War: The Judicial Development Of International Humanitarian Law, Cambridge University Press, 2014
• Shabtai Rosenne, The Law and Practice of the International Court of Justice,4th edn (Leiden/Boston: Martinus Nijhoff Publishers, 2006), vol. III
• ‘Applying International  Humanitarian  Law  in  Judicial  and  Quasi-Judicial  Bodies: International and Domestic Aspects’, (Derek Jink & Solon Solomon eds, Springer, 2014)
• Carey Shenkman, ‘Catalyzing National Judicial Capacity: The ICC’s First Crimes Against Humanity Outside Armed Conflict’. Volume 87, Number 4, New York University School of Law, 2012 http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-87-4-Shenkman.pdf
• Vincent Chetail, ‘The Contribution of the International Court of Justice to International Humanitarian Law’. 30-06-2003 Article, International Review of the Red Cross, No. 850 https://www.icrc.org/eng/assets/files/other/irrc_850_chetail.pdf