Freezing or Consolidating the Development of War Crimes Law? The International Criminal Court and the Role of Judicial Innovation

Hoffmann, Tamás

doi:10.1007/978-3-031-45994-8_2

Tamás Hoffmann⁵

Part of the book series: Global Issues ((GLOISS))

31 Accesses

Abstract

After the adoption of the Rome Statute of the International Criminal Court, several commentators claimed that the statute was specifically drafted to curtail judicial innovation following a period of exponential expansion led by the jurisprudence of the International Criminal Tribunal of the Former Yugoslavia (ICTY). One particularly vicious criticism was voiced by Alain Pellet, who accused the drafters of the statute that as a ‘result of a veritable brainwashing operation led by criminal lawyers, with the self-interested support of the United States […] have frozen customary definitions in a process of rapid evolution’.

This chapter aims to further examine the question of whether the institutional design of the Rome Statute of the International Criminal Court has indeed restricted the development of international criminal law, focusing on the field of war crimes law. It first analyses the relationship between international humanitarian law and international criminal law, then addresses the historical role of the Nuremberg Tribunal and the International Criminal Tribunal for the Former Yugoslavia in the development of war crimes law. Finally, it zeroes in on the Rome Statute and investigates whether the crime definitions and the emphasis on the principle of legality have actually curbed the potential for judicial innovation.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 129.00; Price excludes VAT (USA)

Hardcover Book: USD 169.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
Ch. K. Hall, ‘The First Proposal for A Permanent International Criminal Court’, 38 International Review of the Red Cross (1998) 57–74.
2.
A. Pellet, ‘Applicable Law’, in A. Cassese, P. Gaeta, J. R. W. D. Jones (eds) The Rome Statute of the International Criminal Court: A Commentary, Vol. II. (Oxford: Oxford University Press, 2002) 1051–1084, at 1056–1057.
3.
Ibid, at 1059.
4.
C. Kress, ‘The International Criminal Court as a Turning Point in the History of International Criminal Justice’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford, New York: Oxford University Press, 2009), 143–159, at 146.
5.
H. Ascensio, ‘La Cour pénale internationale et l’héritage des Tribunaux pénaux internationaux. Le point de vue de la doctrine’, in P. Tavernier (ed.), Actualité de la jurisprudence pénale internationale à l’heure de la mise en place de la Cour pénale internationale (Bruxelles: Bruylant, 2004) 243–249, at 246.
6.
L. v. d. Herik, ‘The Decline of Customary International Law as a Source of International Criminal Law’ in C. A. Bradley (ed.), Custom’s Future—International Law in a Changing World (Cambridge University Press, 2016) 230–252, at 231. Sivakumaran also cautioned that ‘Resort to international criminal law in this manner may also have the unintended effect of freezing international humanitarian law. Developments in international humanitarian law may take place only when the ICC has an opportunity to pronounce on the matter, and, given the importance of the nullum crimen sine lege principle, opportunity for development may be limited’. S. Shivakumaran, The Law of Non-international Armed Conflict (New York: Oxford University Press, 2012) 81.
7.
D. Hunt, ‘High Hopes, “Creative Ambiguity” and an Unfortunate Mistrust in International Judges’, 2 Journal of International Criminal Justice (2004) 56–70, at 59.
8.
A. Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’, 10 European Journal of International Law (1999) 144–171, at 158.
9.
I use the terms international humanitarian law, law of armed conflicts, law of war and laws of war interchangeably in this chapter.
10.
See for example, M. E. O’Connell, ‘Historical Development and Legal Basis’, in D. Fleck (ed.), The Handbook of International Humanitarian Law (3rd edn., Oxford University Press, 2013) 1–42, at 15–42.; J. H. W. Verzijl, International Law in a Historical Perspective, Vol. IX.: The Laws of War (Brill, Nijhoff, 1979).
11.
H. Lauterpacht, ‘The Problem of the Revision of the Law of War’, 29 British Yearbook of International Law (1952) 360–382, at 382.
12.
As O’Donoghue pithily remarked, ‘the sheer volume of IHL treaty law instils a sense of apprehension into many public international lawyers who do not feel comfortable engaging with a topic so heavily treaty-laden’. A. O’Donoghue, ‘Splendid Isolation: International Humanitarian Law, Legal Theory and the International Legal Order’, 14 Yearbook of International Humanitarian Law (2011) 107–131, at 113.
13.
M. N. Schmitt, ‘Military Necessity and International Humanitarian Law: Preserving the Delicate Balance’, 50 Virginia Journal of International Law (2010) 795–839.
14.
Ch. af Jochnick, R. Normand, ‘The Legitimation of Violence: Critical History of the Laws of War’, 35 Harvard International Law Journal (1994) 49–95.
15.
R. Liivoja, ‘Law and Honour—Normative Pluralism in the Regulation of Military Conduct’ in J. Klabbers and T. Piiparinen (eds), Normative Pluralism and International Law (New York: Cambridge University Press, 2013) 143–166, at 150.
16.
D. Kennedy, ‘War and International Law: Distinguishing Military and Humanitarian Professions’, 82 International Law Studies (2007) 3–33, at 13–14.
17.
See more in detail Jochnick, Normand, supra note 14. In a recent book, Samuel Moyn argued that while the laws of war indeed manage to influence the belligerents’ behaviour towards a more humane armed conflict, these less brutal conflicts eventually resulted in longer periods of fighting as resort to violence and prolonging the conflict became less difficult for political leaders. S. Moyn, Humane: How the United States Abandoned Peace and Reinvented War (New York: Farrar, Straus, and Giroux, 2021) 294–295. Nevertheless, Kaye rightly emphasizes that ‘even minimal, uncertain constraints serve a useful function as “the best that could be achieved” under such circumstances’. D. Kaye, ‘Complexity in the Law of War’, in R. A. Miller and R. M. Bratspies (eds) Progress in International Law (Leiden, Boston: Martinus Nijhoff, 2008) 681–706, at 690.
18.
Summer Maine quoted in J. L. Kunz, ‘The Chaotic Status of the Laws of War and the Urgent Necessity for Their Revision’, 45 American Journal of International Law (1951) 37–61, at 61.
19.
O’Donoghue, supra note 12, at 109–112.
20.
On the role of the ICRC in the development of international humanitarian law, see more in detail L. Perna, The Formation of the Treaty Law of Non-international Armed Conflicts (Leiden: Martinus Nijhoff, 2006) 34–39.
21.
Lauterpacht, supra note 11, 363–4.
22.
T. Meron, ‘The Humanization of Humanitarian Law’, 94 American Journal of International Law (2000) 239–278.
23.
T. Meron, The Humanization of International Law (Leiden, Boston: Martinus Nijhoff, 2006). Solis rather sardonically remarks that human rights NGOs desire ‘to avoid phrases like “law of war” in favour of more pacific terms, perhaps in the hope that battlefield actions may someday follow that description’ and that [A] few scholars argue that both ‘law of war’ and ‘law of armed conflict’, are passé terms, replaced in the eyes of some internationalists by ‘international humanitarian law’, passing over the irony of how a body of law defining how noncombatants may lawfully be killed (i.e., collateral damage) is ‘humanitarian’. G. D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2010), at 22.
24.
Goodman, for instance, argues that the law of armed conflict forbids the killing of enemy fighters in some circumstances when it is manifestly unnecessary—a view that is clearly at odds with the classical approach. R. Goodman, ‘The Power to Kill or Capture Enemy Combatants’, 24 European Journal of International Law (2013), 819–853.
25.
M. Sassòli, ‘Humanitarian Law and International Criminal Law’, in Cassese, supra note 4, 111–122, at 116–117.
26.
C. Stahn, L. v. d. Herik, ‘“Fragmentation”, Diversification and “3D” Legal Pluralism: International Criminal Law as the Jack-in-the-Box?’ in C. Stahn, L. v. d. Herik (eds) The Diversification and Fragmentation of International Criminal Law (Brill, 2012), 21–89, at 23. See also Clapham’s witty description of the ‘three tribes’ of international criminal law composed of criminal lawyers (pénalistes), human rights advocates (droit de l’hommistes), and public international lawyers (internationalistes). A. Clapham, ‘Three Tribes Engage on the Future of International Criminal Law’, 9 Journal of International Criminal Justice (2011) 689–695. This reflects my own experiences as an LLM student at the University of London LLM-programme in 2002–2003, where I was surprised to see that very few people attended both the laws of armed conflict and the international criminal class.
27.
D. Robinson, ‘The Identity Crisis of International Criminal Law’, 21 Leiden Journal of International Law (2008), 925–963, at 925.
28.
As Cryer wryly observes, ‘when sovereignty appears in [international criminal law] scholarship, it commonly comes clothed in hat and cape. A whiff of sulphur permeates the air’. R. Cryer, ‘International Criminal Law vs. State Sovereignty: Another Round?’, 16 European Journal of International Law (2005) 979–1000, at 980.
29.
A. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, 9 European Journal of International Law (1998) 2–17, at 17.
30.
S. Sivakumaran, The Law of Non-International Armed Conflict (New York: Oxford University Press, 2012) 475.
31.
D. Akande, ‘Sources of International Criminal Law’, in A. Cassese (ed.) Oxford Companion to International Criminal Justice (New York: Oxford University Press, 2007) 41.
32.
See in detail, T. Hoffmann, ‘The Gentle Humanizer of Humanitarian Law: Antonio Cassese and the Creation of the Customary Law of Non-International Armed Conflicts’ in C. Stahn, L. v. d. Herik (eds) Future Perspectives on International Criminal Justice (Hagues: T.M.C. Asser Press, 2010) 58–80.
33.
Sassòli, supra note 25, at 118.
34.
G. Blum, ‘The Shadow of Success: How International Criminal Law Has Come to Shape the Battlefield’, 100 International Law Studies (2023) 133–185, at 137.
35.
Ibid., at 160.
36.
For more background, see H. M. Rhea, ‘The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties and its Contribution to International Criminal Justice after World War II’, 25 Criminal Law Forum (2014) 147–169.
37.
‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’, 14 American Journal of International Law (1920) 95–154, at 145–46.
38.
S. Darcy, Judges, Law and War—The Judicial Development of International Humanitarian Law (Cambridge University Pres, 2014), at 55.
39.
Charter of the International Military Tribunal—Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, at Art. 6(b), which reads: ‘War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity’. The Charter of the International Military Tribunal for the Far East did not even include a non-inclusive list of war crimes. Special Proclamation—Establishment of an International Military Tribunal for the Far East, 19 January 1946, at Art. 5(b), which reads: ‘Conventional War Crimes: Namely, violations of the laws or customs of war’.
40.
K. S. Gallant, The Principle of Legality in International and Comparative Criminal Law (1st edn. New York: Cambridge University Press, 2009) 99–110.
41.
Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, Volume I. (Nuremberg, 1947) (hereafter Trial of the Major War Criminals), at 219.
42.
‘The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in view of the Tribunal, as will be shown, it is the expression of International Law existing at the time of its creation; and to that extent is itself a contribution to International Law’. Trial of the Major War Criminals, supra note 42, at 218.
43.
Ibid., at 221.
44.
Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, Volume I (Nuremberg, 1947), at 253.
45.
This strategy reaffirms Lauterpacht’s observation that ‘[M]any an act of judicial legislation may in fact be accomplished under the guise of the ascertainment of customary law’. H. Lauterpacht, The Development of International Law by the International Court (Praeger, 1958), at 368.
46.
The Tribunal lists as one of its achievements that ‘[S]ince its establishment, the Tribunal has consistently and systematically developed international humanitarian law […] The legal precedents set by the Tribunal have expanded the boundaries of international humanitarian and international criminal law, both in terms of substance and procedure’, available online at: https://www.icty.org/en/about/tribunal/achievements (accessed 15 August 2022).
47.
Article 3 reads: ‘The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property’. Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002), 2187 UNTS 90, at Art. 3.
48.
See Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Dusko Tadic aka ‘Dule’ (IT-94-1-AR72), Appeals Chamber, 2 October 1995 (hereafter Tadić), § 91.
49.
W. A. Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 2016), at 119.
50.
See for example, J. Powderly, Judges and the Making of International Criminal Law (Brill, 2020) 375–394; Darcy, supra note 38, 59–67; A. M. Danner, ‘When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War’, 59 Vanderbilt Law Review (2006) 1–65; Hoffmann, supra note 32, 58–80.
51.
Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993) UN Doc. S/25704 (1993), § 34.
52.
See Tadić, supra note 48, § 143.
53.
This led Meron to state that ‘[T]he legality principle thus serves as a restraint on the tribunals’ ability to be “progressive” in their contributions to the development of customary humanitarian law. The term “conservative” here suggests reluctance to contribute to an overly broad or rapid expansion of customary law offenses’. T. Meron, ‘Revival of Customary Humanitarian Law’, 99 American Journal of International Law (2005), 817–834, at 818.
54.
See for example, the prohibition of perfidy in non-international armed conflict, which was deemed to have a customary status citing a single Nigerian judicial decision, which in turn was based on the Nigerian Criminal Code. See Tadić, supra note 48, § 125.
55.
Ibid, § 97.
56.
Ibid, § 119.
57.
Prosecutor v. Kupreskić, Judgment, (IT-95-16-T), 14 January 2000, § 527.
58.
Hoffmann, supra note 32, at 73.
59.
Rauter recently thoroughly criticized the Tribunal’s approach of relying predominantly on opinio juris by noting that ‘if customary international law is also merely based on opinio juris, the barriers separating customary international law and general principles of law become not only blurred, but non-existent’. T. Rauter, Judicial Practice, Customary International Criminal Law and Nullum Crimen Sine Lege (1st edn., Springer, 2017) 111. In similar fashion, Arajärvi expressed concerns that ‘the implementation of political, social or moral considerations on the substantive law creates legal uncertainty and reduces the function of the law to a vehicle for the advancement of extra-legal norms and undermines the essence of the rule of law’. N. Arajärvi, The Changing Nature of Customary International Law—Methods of Interpreting the Concept of Custom in International Criminal Tribunals (1st edn., New York: Routledge, 2014), at 6.
60.
Hoffmann, supra note 32, 69 and accompanying footnotes.
61.
Judgment, Prosecutor v Zlatko Aleksovski, Appeals Chamber (IT-95-14/1-A), 24 March 2000 (hereafter Aleksovski), § 127. See also Judgment, Prosecutor v. Zejnil Delalic, Zdravko Mucic, also known as ‘Pavo’, Hazim Delic Esad Landzo also known as ‘Zenga’, Appeals Chamber (IT-96-21-A), 20 February 2001, § 173.
62.
V. P. Tzvelekos, ‘Juris Dicere: Custom as a Matrix, Custom as a Norm, and the Role of Judges and (Their) Ideology in Custom Making’, in N. M. Rajkovic, T. E. Aalberts, T. Gammeltoft-Hansen (eds), The Power of Legality: Practices of International Law and their Politics (Cambridge University Press, 2016) 188–208, at 192.
63.
Robinson, supra note 27, at 938.
64.
See for example, F. Tulkens, ‘Judicial Activism v Judicial Restraint: Practical Experience of This (False) Dilemma at the European Court of Human Rights’, 3 European Convention on Human Rights Law Review (2022) 293–300; L. Lixinski, ‘Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law’, 21 European Journal of International Law (2010) 585–604.
65.
L. Grover, ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court’, 21 European Journal of International Law (2010) 543–580, at 550. Danner and Martinez also agree that a human rights approach to interpretation, that favours broad and liberal constructions, is inapposite to international criminal law. A. M. Danner, J. S. Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility and the Development of International Criminal Law’, 93 California Law Review (2005), 75–169, at 81–89.
66.
Judgment, Tadić, Appeals Chamber (IT-94-1-A), 15 July 1999, §§ 166–168; Aleksovski, supra note 61, §§ 151–152; Judgment, Prosecutor v Blaskić, Appeals Chamber (IT-95-14), 29 July 2004, § 182.
67.
Judgment, Tadić, supra note 66, §§ 166–168.
68.
Prosecutor v. Zejnil Delalic, Zdravko Mucic, also known as ‘Pavo’, Hazim Delic Esad Landzo also known as ‘Zenga’, Appeals Chamber (IT-96-21-A), 20 February 2001 (hereafter Čelebići), § 73.
69.
See for example, W. J. Fenrick, ‘The Application of the Geneva Conventions by the International Criminal Tribunal for the Former Yugoslavia’, 81 International Review of the Red Cross (1999), at 326; J. J. Urbina, ‘La Protection des Personnes Civiles au Pouvoir de L’Ennemi et L’Etablissement d’une Juridiction Pénale Internationale’, 82 International Review of the Red Cross (2000), at 858; K. Rubenstein, ‘Rethinking Nationality in International Humanitarian Law’, in U. Dolgopol, J. Gardam (eds), The Challenge of Conflict: International Law Responds (1st edn., Brill, Nijhoff, 2006) 89–104, at 102–103; S. Reeves, ‘The Expansive Definition of ‘Protected Persons’ in War Crimes Jurisprudence’ 39 The Army Lawyer (2009) 23–27; D. Fleck, ‘Shortcomings of the Grave Breaches Regime’, 7 Journal of International Criminal Justice (2009) 842–3; K. Mačák, Internationalized Armed Conflicts in International Law (1st edn., New York: Oxford University Press, 2018) 234–237. While agreeing with the ICTY’s interpretation, Salmón notes that it might be difficult to implement as it is virtually impossible to verify allegiance to the state. E. Salmón, ‘Who is a Protected Civilian?’ in A. Clapham, P. Gaeta, M. Sassòli (eds) The 1949 Geneva Conventions—A Commentary (New York: Oxford University Press, 2015) 1135–1154, at 1145.
70.
The Prosecutor v Thomas Lubanga, Judgment pursuant to Article 74 of the Statute (ICC-01/04-01/06), 14 March 2012, § 564.
71.
See T. Hoffmann, ‘The Perils of Judicial Construction of Identity—A Critical Analysis of the International Criminal Tribunal for the Former Yugoslavia’s Jurisprudence on Protected Persons’ in Kim Rubenstein (ed.) Connecting International Law with Public Law—Allegiance and Identity in a Globalised World (Cambridge University Press, 2014) 497–521; M. G. Martínez, ‘The ‘Allegiance’ Test: Judicial Legislation and Interpretation of GCIV’, 27 Journal of Conflict and Security Law (2022) 21–51.
72.
In Garabian’s words ‘[I]n interpreting their statutes, these judges claim that they are simply bringing to light a pre-existing, albeit hidden meaning intended by the ‘international legislator’ (in other words, sovereign [s]tates), made explicit by means of a purely cognitive activity which thereby guarantees that the principle of legality is respected’. S. Garibian, ‘By Men, not Gods: The (Hidden) Evolutionary Interpretation of International Criminal Law in Light of Extrinsic Sources’ in Georges Abi-Saab et al. (eds), Evolutionary Interpretation and International Law (Hart, 2019) 153–170, at 156.
73.
Čelebići, Sentencing Judgment, Trial Chamber (IT-96-21-T), 16 November 1998, § 263.
74.
J. L. Kunz, ‘The Chaotic Status of the Laws of War and the Urgent Necessity for their Revision’, 45 American Journal of International Law (1951), 37–61, at 59.
75.
Danner, supra note 50, at 32. See more in detail B. v. Dijk, Preparing for War—The Making of the Geneva Conventions (Oxford University Press, 2022).
76.
Art. 4 of the Statute of the International Criminal Tribunal for Rwanda also included an open-ended reference to ‘serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977’, emphasizing that these violations ‘shall include, but shall not be limited to’ the listed eight prohibited acts. Statute of the International Criminal Tribunal for Rwanda, S/RES/955, 8 November 1994, at Art. 4. Nevertheless, the ICTR failed to charge a single individual with a war crime not explicitly included in Art. 4 of the statute.
77.
A. Cassese, ‘On the Current Trend Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, 9 European Journal of International Law (1998), at 7–8.
78.
See R. Cryer, Prosecuting International Crimes—Selectivity and International Criminal Law Regime (Cambridge University Press, 2005) at 233–88. In 1999, after the NATO intervention in Yugoslavia, the Prosecutor recommended not to investigate potential international crimes because ‘either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence’. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, available online at: https://www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal (accessed 15 July 2022). For a critical view see P. Benvenuti, ‘The ICTY Prosecutor and the Review of the Bombing Campaign against the Federal Republic of Yugoslavia’, 12 European Journal of International Law (2001) 503–529.
79.
See Hoffmann, supra note 32, at 78. Unsurprisingly, when the ICTY tried to introduce the so-called 200-metre rule that could have potentially restricted targeting decisions during military operations, it caused a palpable fervour in the US military lawyer community. See Prosecutor v Ante Gotovina, Ivan Čermak and Mladen Markač (IT-01-45-T), 15 April 2011, §§ 1892–1945. For the US reaction see Operational Law Experts Roundtable on the Gotovina Judgment: Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law (Emory Law School: International Humanitarian Law Clinic, 4 November 2011).
80.
Terris, Romano and Swigart comment that ‘international judges who, knowingly or inadvertently, cross the line between interpreting the law as is and writing law, put at risk the future of the court itself, if not the whole edifice of international law. They are more likely to see themselves as compelled to break new ground by circumstance, rather than seeking opportunities to make their mark by developing new law’. D. Terris, C. P. Romano, L. Swigart, The International Judge—An Introduction to the Men and Women Who Decide the World’s Cases (Oxford University Press, 2007), at 130.
81.
Judge Wald recounted her own experiences at the Tribunal with tangible consternation. ‘There was no court above us and no legislature to change the law if it did not like our rulings. There was no public constituency in, or even enough coverage by, the media to act as much of a brake. We were independent indeed, but often I asked myself, how accountable were we and to whom?’ P. M. Wald, ‘International Criminal Courts: Some Kudos and Concerns’, 150 Proceedings of the American Philosophical Society (2006) 241–260, at 244–245.
82.
A. Cassese, ‘Soliloqui’ in A. Cassese, P. Gaeta, S. Zappalà (eds), The Human Dimension of International Law: Selected Papers of Antonio Cassese (New York: Oxford University Press, 2008) lix–lxxxii, at lxiii.
83.
For instance, the ICRC Customary Law Study explicitly admits that not all international court decisions claiming to ascertain customary international law have relied on state practice and opinio juris but these decisions are still taken into account. The Study states that ‘it appears that international courts and tribunals on occasion conclude that a rule of customary international law exists when that rule is a desirable one for international peace and security or for the protection of the human person provided there is no important contrary opinio juris’. J.-M. Henckaerts, L. Doswald-Beck (eds), Customary International Humanitarian Law—Vol. I.: Rules. (New York: Cambridge University Press, 2009), at xliii.
84.
R. Cryer, ‘Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study’, 11 Journal of Conflict and Security Law (2002), 239–263, at 249.
85.
I. Bantekas, ‘Reflections on Some Sources and Methods of International Criminal and Humanitarian Law’, 6 International Criminal Law Review (2006), 121–136, at 129.
86.
The Tadić decision defined non-international armed conflict as ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a [s]tate’. See Tadić, § 70. Art. 8(f) on the other hand, speaks about ‘protracted armed conflict between governmental authorities and organized armed groups or between such groups’. It seems that the Sierra Leonean delegation proposed the definition based on the Tadić decision. See T. Graditzky, ‘War Crime Issues before the Rome Diplomatic Conference on the Establishment of an International Criminal Court’, 5 U.C. Davis Journal of International Law and Policy (1999) 199–218, at 209–10.
87.
P. Kirsch, ‘Foreword’, in K. Dörmann, et al. (eds) Elements of War Crimes under the Rome Statute of the International Criminal Court (Cambridge University Press, 2003), at xiii; See also D. Scheffer, ‘The United States and the International Criminal Court’, 93 American Journal of International Law (1999) 12–22, at 16.
88.
The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (Ali Kushayb), Judgment on the Appeal of Mr. Abd-Al-Rahman against the Pre-Trial Chamber II’s ‘Decision on the Defence “Exception d’incompétence”, (ICC-02/05-01/20-302)’, Appeals Chamber, 1 November 2021, No. ICC-02/05-01/20 0A8, § 89. However, this statement is questionable. As seen above, the customary status of war crimes committed during non-international armed conflicts was by no means conclusive and other crimes could also be seen innovative. Staiano points out that the inclusion of gender-based persecution within Article 7(1)(h) of the statute was an innovative development as in 1998; customary international law only prohibited persecution on the grounds on political, racial, or religious grounds. F. Staiano, ‘Customary International Law as a Source of Individual Criminal Responsibility—Reflections in the Wake of the Abd-Al-Rahman Judgment’, 20 Journal of International Criminal Justice (2022) 981–1000, at 989.
89.
S. Darcy, ‘The Principle of Legality at the Crossroads of Human Rights and International Criminal Law’, in M. M. deGuzman, D. Marie Amann (eds), Arcs of Global Justice—Essays in Honour of William A. Schabas (Oxford University Press, 2018) 203–226, at 206.
90.
United Nations Diplomatic Conference, Volume II, Summary Records of the Plenary Meetings, 5^th Plenary Meeting, 17 June 1998, para. 61, 95.
91.
The Japanese delegate also emphasized the ‘cardinal importance’ of the principle of legality. Darcy, supra note 89, at 206.
92.
Schabas points out that whereas Article 6(b) of the 1945 London Agreement defined war crimes in 73 words, and Articles 2 and 3 of the statute of the ICTY in 239 words, Article 8 of the Rome Statute in devoted 1594 words to its regulation. W. Schabas, ‘The Follow Up to Rome: Preparing for Entry into Force of the International Criminal Court Statute’, 20 Human Rights Law Journal (1999) 157–166, at 163. Robinson suggests that this could have been partly due to concerns about the ‘safeness’ of the new court. ‘The creators of the Rome Statute, who could not know whether the provisions would be applied to their foes, to strangers, to friends, or to themselves, opted for a complete codification with a closed list of defined crimes’. Robinson, ‘The Identity Crisis’, 958–959.
93.
Cassese claimed that the drafters of the Rome Statute of the International Criminal Court ‘feared the “Cassese approach”, namely judges overdoing it, becoming dangerous by, say, producing judgments that can be innovative’. H. V. Stuart, M. Simons, The Prosecutor and the Judge: Benjamin Ferencz and Antonio Cassese (Amsterdam University Press, 2009) 52–53.
94.
Fletcher and Ohlin observe that in this perspective, ‘the reason for legislation is to drive custom from the system and to create a regime based on rules and standards declared publicly, in advance, by a competent authority’. G. P. Fletcher, J. David Ohlin, ‘Reclaiming Fundamental Principles of Criminal Law in the Darfur Case’, 3 Journal of International Criminal Justice (2005) 539–561, at 559.
95.
1. 1.
  The Court shall apply:
  1. (a)
    In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
  2. (b)
    In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;
  3. (c)
    Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of states that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
2. 2.
  The Court may apply principles and rules of law as interpreted in its previous decisions.
3. 3.
  The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights and be without any adverse distinction founded on grounds such as gender as defined in Article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
96.
1. 1.
  A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
2. 2.
  The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.
3. 3.
  This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.
97.
W. A Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’, 6(4) Journal of International Criminal Justice (2008) 731–761, at 755.
98.
Pellet, supra note 2, at 1059.
99.
Herik, supra note 6, 230–252, at 240.
100.
A. Bufalini, ‘The Principle of Legality and the Role of Customary International Law in the Interpretation of the ICC Statute’, 14 The Law and Practice of International Courts and Tribunals (2015) 233–254, at 239.
101.
Prosecutor v. Germain Katanga and Mathieu Chui, Decision on the Confirmation of Charges, Pre-Trial Chamber I (ICC-01/04-01/07), 30 September 2008, § 508.
102.
Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I (ICC-02/05-01/09-3), 4 March 2009, § 44.
103.
Powderly, supra note 50, at 500.
104.
Prosecutor v Lubanga, Decision on the Confirmation of Charges, Pre-Trial Chamber I (ICC-01/04-01/06), 29 January 2007, §§ 208–209.
105.
Prosecutor v Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Pre-Trial Chamber II (ICC-01/05-01/08-424), 15 June 2009, § 78, fn. 101.
106.
C. Kenny, Y. McDermott, ‘The Expanding Protection of Members of a Party’s Own Armed Forces under International Criminal Law’, 68 International and Comparative Law Quarterly (2019) 943–976, at 953.
107.
Powderly, supra note 50, at 501.
108.
For instance, Cassese emphasized that ‘crimes committed by combatants of one party to the conflict against members of their own armed forces do not constitute war crimes’. Antonio Cassese et al., International Criminal Law (3rd edn., Hampshire: Oxford University Press, 2013), at 67. The Special Court for Sierra Leone similarly held that ‘the law of armed conflict does not protect members of armed groups from acts of violence directed against them by their own forces’. Judgment, Prosecutor v Sesay, Kallon, Gbao (RUF Case), (SCSL-04-15-T), Trial Chamber, 2 March 2009 (hereafter Sesay), § 1451.
109.
Prosecutor v Ntaganda, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, Case No ICC-01/04-02/06-309, 9 June 2014, § 78.
110.
Ibid, § 79.
111.
Art. 12 ‘Members of the armed forces and other persons mentioned in the following Article, who are wounded or sick, shall be respected and protected in all circumstances’. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
Art. 12 ‘Members of the armed forces and other persons mentioned in the following Article, who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances’. Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
Common Art. 3(1) ‘Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria’. Conventions (I)–(IV), Geneva, 12 August 1949.
112.
See T. Rodenhäuser, ‘Squaring the Circle? Prosecuting Sexual Violence against Child Soldiers by their ‘Own Forces’, 14 Journal of International Criminal Justice (2016) 171–193, at 187–192.
113.
Prosecutor v Ntaganda, Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9, (ICC-01/04-02/06-1707), 4 January 2017, § 40.
114.
Ibid, §§ 46–48.
115.
Prosecutor v Ntaganda, Judgment on the Appeal of Mr Ntaganda against the ‘Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9’ (ICC-01/04-02/06), 15 June 2017, § 53.
116.
Ibid, § 63.
117.
Ibid, § 64.
118.
Ibid, § 68.
119.
‘The Appeals Chamber appreciates the seemingly unprecedented nature of this conclusion. The Appeals Chamber is also mindful of Mr Ntaganda’s apprehension that this conclusion seems to result from a “wider application” of the Rome Statute through “judicial activism” or amounts to a “substantial and unjustified extension of the scope of war crimes law”. However, as reasoned above, the conclusion is not only permissible under article 8(2)(b)(xxii) and 8(2)(e)(vi) of the statute, but is also aligned with the established framework of international law’. Ibid, § 67 (footnotes omitted).
120.
K. J. Heller: ‘ICC Appeals Chamber Says a War Crime Does Not Have to Violate IHL’, (15 June 2017) Opinio Juris Blog, available online at: http://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not-have-to-violate-ihl/ (accessed 15 September 2022).
121.
Interesting to contrast the Ntaganda decision(s) with Sierra Leone Special Court’s approach, which rejected an expansive interpretation, alarmed by its potential ramifications. The Court declared that ‘[T]he law of international armed conflict was never intended to criminalise acts of violence committed by one member of an armed group against another, such conduct remaining first and foremost the province of the criminal law of the [s]tate of the armed group concerned and human rights law. In our view, a different approach would constitute an inappropriate reconceptualisation of a fundamental principle of international humanitarian law. We are not prepared to embark on such an exercise’. Sesay, supra note 108, § 1453.
122.
S. Darcy, ‘The Reinvention of War Crimes by the International Criminal Tribunals’ in S. Darcy, J. Powderly (eds), Judicial Creativity at the International Criminal Tribunals (Oxford University Press, 2010) 106–128, at 127.
123.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2011) 410–411.
124.
A. Pellet, ‘Revisiting the Sources of Applicable of law before the ICC’ in M. M. deGuzman, D. M. Amann (eds) Arcs of Global Justice—Essays in Honour of William A. Schabas (Oxford University Press, 2018) 227–256, at 232.
125.
J. Powderly, ‘The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function: Reflections on Sources of Law and Interpretative Technique’ in C. Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford University Press, 2015) 444–98, at 498.
126.
Tzvelekos pointed out that ‘Be they impartial, judges still see law and the facts behind it from their own, subjective perspective. They do not adjudicate in a vacuum; they carry to the bench their personal system of values and ideology, their personal understanding of what law is or ought to be, and they evaluate and assess the law the way they perceive it through the lens of their personal experience in life’. Tzvelekos, supra note 62, at 196.
127.
Hart describes this phenomenon in the common law system as ‘the courts often disclaim any such creative function and insist that the proper task of statutory interpretation and the use of precedents is, respectively, to search for the ‘intention of the legislature’ and the law that already exists’. H. L. A. Hart, The Concept of Law (Clarendon Press, 1994) 135–136.
128.
Pellet, supra note 2, at 1053.
129.
In this vein, Akhavan warns that ‘utopian jurisprudence that disregards the imperatives of humanitarian law in the name of progress will only dissipate what remains of chivalry and professional pride among the world’s armed forces’. P. Akhavan, ‘Reconciling Crimes against Humanities with the Laws of War—Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence’, 6 Journal of International Criminal Justice (2008) 21–37, at 37.

Author information

Authors and Affiliations

Centre for Social Sciences Institute for Legal Studies (Hungarian Academy of Sciences Centre of Excellence) and Corvinus University, Budapest, Hungary
Tamás Hoffmann

Authors

Tamás Hoffmann
View author publications
You can also search for this author in PubMed Google Scholar

Editor information

Editors and Affiliations

Faculty of Law, Palacký University, Olomouc, Czech Republic
Martin Faix
Faculty of Law, Palacký University, Olomouc, Czech Republic
Ondřej Svaček

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Hoffmann, T. (2024). Freezing or Consolidating the Development of War Crimes Law? The International Criminal Court and the Role of Judicial Innovation. In: Faix, M., Svaček, O. (eds) ICC Jurisprudence and the Development of International Humanitarian Law. Global Issues. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-45994-8_2

Download citation

DOI: https://doi.org/10.1007/978-3-031-45994-8_2
Published: 29 March 2024
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-031-45993-1
Online ISBN: 978-3-031-45994-8
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics