The Unintended Consequences of International Court Decisions
In response to a prosecution appeal in the case of The Prosecutor v. Bosco Ntaganda, the International Criminal Court (ICC) is currently considering the meaning of “attack” under the Rome Statute. The Court’s decision, however, could have consequences that reach beyond Ntaganda and could influence how the term is understood in the law of armed conflict (LOAC).
There is no doubt that international criminal tribunal decisions have contributed vastly to the development of LOAC over the years—from Nuremberg to the ICC. This has been, by and large, a welcome process, often taking into consideration the changing realities of warfare. One of the greatest examples of positive impact is the Tadić case.
However, to fight impunity, international tribunals have taken a broad and frequently expansive approach to jurisdiction over war crimes, particularly in the context of non-international armed conflicts. This “progressive development” has led to a distortion of the law. The ICC, in particular, has adopted and reinforced many of the International Criminal Tribunal for the former Yugoslavia’s (ICTY) interpretations of LOAC while adjusting others in pursuit of what has been referred to as the “humanisation of warfare” and the law that regulates it.
There are times when the dynamics of criminal trials, driven by the aims of criminal justice, will contribute to the utilitarian application and reinterpretation of LOAC. A real danger, however, lies where the jurisdictional and evidential limitations of a court dictate over-expansive interpretations of otherwise well-established and unimpeachable norms. This can lead to the criminalization of previously lawful military operations—or worse, a reduction of the existing spectrum of protections afforded to the most vulnerable people during armed conflicts.
This post highlights instances where international court decisions have impacted protection of the vulnerable and previously lawful conduct in military operations. Starting with the ICTY Tadić case, it then examines the Lubanga, Al-Mahdi, and Ntaganda cases. Briefly, before highlighting these cases, the post outlines the relationship between international criminal law and LOAC that underlies the changes occurring.
Relationship between International Criminal Law and LOAC
Domestic and international criminal courts provide post facto venues to address potential violations of LOAC. International criminal law differs greatly, however, from LOAC in its nature, settings, aims, and purposes. Its underlying purposes are to counter impunity, assure redress to victims, and achieve effective and successful convictions and just adjudications. Criminal trials, when looking into the conduct of warring parties, offer retrospective and keyhole-style insights into factual circumstances of a specific armed conflict. Jurisdictional and evidentiary limitations further ensure that review of LOAC is highly contextual.
In contrast, LOAC aims to regulate the conduct of military operations by striking a fragile balance between military necessity and humanitarian considerations. Often perceived as an imperfect compromise, the balance is a result of careful negotiation with involvement of these who apply it on the ground—the military operators. LOAC has to be practical and realistic for it to be readily applied and respected on the battlefield. When violations occur, they need to be addressed. And, one way of dealing with them is through a criminal process.
Like a bridge, war crimes are what link the two branches of law. To work effectively, the two branches should share terminology, concepts, and meanings. If terms are interpreted differently in the criminal process there are consequences. Tension may ensue between the branches of law. Moreover, the risk arises that the two bodies of law will drift apart on a material level, causing practical complications for domestic courts, practitioners, and military operators.
The single most significant, game-changing case that has influenced how we interpret LOAC is the Tadić case. Rendered in 1995, the Tadić Appeals Chamber decision had a profound impact on our understandings of many fundamental concepts in LOAC—such as defining the notion of armed conflict and separately identifying the existence of armed conflict, outlining requirements necessary for classification of the conflict as non-international in character, noting when an internal conflict can become internationalised, and the recognition that a large number of customary international humanitarian law rules are equally applicable to international and non-international armed conflicts.
Like many of my fellow academic colleagues and practitioners, I have become accustomed to treating the case findings as commonly accepted reflections of legal standards in customary international humanitarian law. While some of these conclusions might have been contested at the time of the verdict, a subsequent lack of objections from States as well as progressive and widespread use of these standards by various international actors—be they States during subsequent treaty negotiations, national and international courts, or various international organisations and bodies—has demonstrated that the ICTY’s findings in the Tadić case have become widely accepted as a reflection of established custom.
Lubanga—Active Participation of Child Soldiers
The ICC created controversy in its first judgment in the Lubanga case. In pursuit of international criminal law objectives, the Court expanded the scope of active participation of child soldiers in hostilities to include “finding and/or acquiring food.” This interpretation goes beyond the understanding of the concept in LOAC and has been met with extensive criticism.
Critics faulted the Court with unwarranted and misguided judicial activism in expanding the Court’s jurisdiction over war crimes beyond LOAC. Extending the concept to include food gathering during hostilities could significantly reduce protection for children associated with armed forces or organised armed groups during armed conflicts who, in engaging in such activities during hostilities, could become lawful targets. Such a result would clearly not only be in contravention of the humanitarian considerations in LOAC, but also at the very least questionable under the principle of legality in international criminal law.
This ICC decision followed earlier ICTY cases, where the ICTY was criticised for expanding LOAC without due regard to the position of States and established practice. In the Kupreškić case, for example, the ICTY convicted the defendant of belligerent reprisals based on the apparent existence of a customary international law norm. However, the Court was unable to establish the necessary State practice to support its finding. Instead it over-emphasized the opinio juris element of the customary norm in order to justify the conviction. Recognising this limitation, the Court nevertheless justified its reasoning based on the “pervasive” transformative influence of human rights on LOAC and the “humanisation of armed conflict” (paras 527-534).
Al-Mahdi—Attacking Cultural Property
In the Al-Mahdi case, before the ICC, the Trial Chamber convicted a former member of Ansar Dine, a Tuareg Islamist militia in North Africa, for the war crime of attacking religious and historical buildings in the Malian city of Timbuktu. It was the first ICC conviction involving destruction of cultural property. The Court based its findings on same article the Prosecution has relied upon in the Ntaganda case, namely Article 8(2)(e)(iv) of the Rome Statute.
While lauded by many for its resolve to punish violations against cultural property, the Court’s decision in Al-Mahdi was criticised heavily by one of the most prominent experts in international criminal law—William Schabas. Schabas maintained the accused was wrongly convicted of a crime he did not commit. Schabas argued that while Al-Mahdi led and participated in destruction of the World Heritage site in Timbuktu, he did not engage in an “attack” within a meaning of this term as established both under LOAC and international criminal law.
The Al Mahdi judgement set a dangerous precedent. The Prosecutor in Ntaganda is now arguing that Article 8(2)(e)(iv)—and as such this category of war crimes—extends to various other acts of violence against specially protected objects.
Ntaganda—War Crimes Can Be Committed within an Armed Group
More recently, the ICC Appeals Chamber held in 2017 that the war crimes of rape and sexual slavery can be committed against members of an organised group by other members of that same group who are actively participating in hostilities.
Classifying member-on-member violence as a war crime has been positively received by some who consider it as extending humanitarian protections. However, other commentators have maintained that violence within the group cannot qualify as a war crime because it does not violate rules of LOAC. They have argued based on a general reading of Geneva Conventions I and II (see for example para 59 of the Ntaganda judgment) in the context of Common Article 3 that the rules could only have been violated in this case if victims of the sexual violence and slavery were wounded, sick, shipwrecked, or otherwise hors de combat. It would not apply to fighting members. Yet, the Appeals Chamber found that the rule was equally applicable to victims of such violence who were actively fighting members of the organised group.
In taking this stance, the Appeals Chamber went beyond the legal boundaries of customary LOAC. According to Kevin Jon Heller, a leading international criminal law expert, the Chamber relied on a rather “incomplete or misleading” reading of the new ICRC Commentary to Common Article 3 of the Geneva Conventions.
Heller further observed that the Trial Chamber transplanted international armed conflict treaty norms to support findings of war crimes in non-international armed conflicts without offering evidence of their overarching customary status. Such a relaxed approach to the law blurs the line between clear and unambiguous application of treaty provisions—designed to be applicable to one type of conflict—with the goal of tailoring the law to suit the circumstances of the case. The result: creation of a “new” war crime, which is questionable in terms of the principle of legality and which can damage the legitimacy and reputation of the Court.
Ntaganda—The Scope of “Attack”
As mentioned above, the Ntaganda trial is currently on appeal. The Appeals Chamber is addressing another category of war crimes—intentionally directing attacks against protected objects. The Trial Chamber judgment acquitted the defendant of responsibility for two alleged war crimes—one involving an attack on the church at Sayo and the other one unlawful appropriation of medical equipment at the hospital at Mongbwalu. The finding has been contested by the Prosecution.
In its wisdom, the Appeals Chamber asked experts for amicus curiae submissions on the topic of “attack.” Most of the submissions appear to point out the error of the Prosecution’s argument in its Ntaganda appeal brief. They not only argue that attack in this provision of the Statute has a distinct meaning, but also that the factual descriptions of the violence against the church at Sayo and the hospital at Mongbwalu warrant a different standard of regulation under LOAC and different war crimes charges under the Rome Statute. This author was one of the amici, and my line of argument is indeed consistent with other mentioned experts.
The purpose here is not to discuss the various arguments put forth, as they have been addressed at length by others in this symposium (see here, here, and here). Rather, this case demonstrates how potential reinterpretations of core operational notions of LOAC—such as an “attack”—may also result in an inability to conduct previously lawful military operations involving damage or destruction to objects now without risking a criminal sanction.
The Appeals Chamber in the Ntaganda case has a chance to correct an earlier, questionable decision in Al Mahdi. Such a verdict would no doubt align the notions under LOAC applicable to military operations in a more legally correct way with those used under the Rome Statute in the post-conflict criminal proceedings. It could, however, create a problem for the Court, whose conviction of Al-Mahdi may then seem unjust and in contradiction to the principle of legality. Should the Appeals Chamber be persuaded by the Prosecution and confirm the reasoning applied in the Al Mahdi case, it could change the very core of LOAC, diverting it from its well-established and commonly used concept of “attack.”
It is worth noting that while the Court, in theory, is not bound by its previous judgements or judgments from any other jurisdictions, the Court nonetheless appears to follow the previous findings of other criminal tribunals such as the ICTY and its own past decisions. It could be that by doing so, the Court aims to maintain consistency and legal stability in its pronouncements. The danger is, however, once the Court reaches certain conclusions in one case, it may perpetuate these findings in subsequent cases, even if the original finding might have been seen to be faulty retrospectively. One way the Court could potentially revisit its own findings would be to consider expert opinions on the contested issues, which the Court clearly solicited in this case.
The consequences of re-interpretating LOAC notions, such as “attack,” could be far-reaching from a legal and practical point of view. Developments like those discussed above risk further fragmentation in the material sense of LOAC and international criminal law. Such developments are also likely to disrupt the fragile balance between military needs and humanitarian considerations in armed conflict.
If tribunals criminalize conduct not regulated by the same terms under LOAC, then confusion can ensue as to the practical application of LOAC by military operators. This could inadvertently cause military operators to unduly restrain themselves in how they operate during armed conflict. They may refrain from undertaking otherwise lawful actions because of a perceived risk of criminal sanction. The law must be clear in order for military operators to be able to undertake the full spectrum of military operations in the heat of battle without the uncertainty of criminal consequences. Moreover, the law must be clear for military operators to train their forces before battlefield deployment and for lawyers to give advice during conflict.
This trend of courts interpreting LOAC differently for international criminal law purposes leaves States to decide whether to accept international courts’ conclusions, or to follow the traditional way LOAC has been interpreted. It may be that States are comfortable relying on international criminal courts to restate the law, elucidating its aspects, and even contributing to progressive development of new norms. However, if not, States should be more vocal about their objections to such findings and should reassert their international law-making role. Either way, States should not be indifferent. Indifference can easily be interpreted as acceptance of the ICC’s findings and therefore affirmation of this pattern of judicial sanctioning of ever-expanding categories of war crimes.
Last but not least, international criminal tribunals must not only remain mindful of the vitality of upholding the principle of legality, but also of the reality of future armed conflicts. In these conflicts both the fighting participants and protected persons will bear the brunt of reinterpretation of the legal framework regulating such conflicts.
Dr. Agnieszka Jachec-Neale is an expert researcher and lecturer at Exeter Law School.
 This humanization of LOAC has been understood as a process by which criminal courts and tribunals progressively expand their jurisdiction beyond the bounds of their mandate when applying and interpreting LOAC through the lens of international criminal law (see also here).
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