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

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.

1 Introduction—A Blight in Disguise?

In 1998, the adoption of the Statute of the International Criminal Court (ICC) at the Rome Diplomatic Conference was universally hailed as a monumental milestone in the development of international criminal law. After over a century, the utopian dream of Gustave Moynier about the creation of a permanent international criminal court finally became reality.¹ Amid the general elation, however, many scholars were unsatisfied with the institutional design of the court, which they perceived to be specifically devised to curtail judicial innovation following a period of exponential expansion led by the jurisprudence of the International Criminal Tribunal of the Former Yugoslavia (ICTY). The Rome Statute, they argued, with its reliance on the principle of legality (nullum crimen sine lege) and the exhaustive definition of crimes, unduly limited the judges’ ability to engage in the development of international criminal law. 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’.² In his view, this was a potentially fatal error as ‘men’s criminal imagination appears unlimited and, by enclosing the definition of the crimes in narrow, punctilious formulations, they have forbidden the judges in advance to suppress future malevolent inventions of the human spirit’.³

Other commentators and even prominent judges agreed that the ‘veritable obsession’ with the nullum crimen sine lege principle and the codification of crimes provisions⁴ resulted in a ‘jurisdictional fever’⁵ that reflects the drafters’ explicit resolve to marginalize the development of customary international law.⁶ David Hunt, a former judge of the ICTY feared that the codification ‘may well have the effect of stultifying further growth in the law’,⁷ while Antonio Cassese, the first president of the Yugoslavia Tribunal was concerned about ‘retrograde elements freezing legal development’.⁸

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 law⁹ 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.

2 International Humanitarian Law and International Criminal Law—A Symbiotic but Separate Existence

Normative efforts to mitigate violence during armed conflicts have a long historical pedigree, and starting from the second half of the nineteenth century, the laws of war became subject to numerous international treaties, creating an inter-state regulatory framework.¹⁰ Far from being ‘at the vanishing point of law’,¹¹ contemporary international humanitarian law is arguably the most extensively codified area of public international law.¹²

While the laws of war aim to create a delicate balance between military necessity and the considerations of humanity by the adoption of compromises as outcomes of negotiations,¹³ its enforcement was ultimately ensured by extra-legal considerations such as resource management, the goal of avoiding retaliations, moral condemnation, or the re-establishment of post-war relations with the enemy nation.¹⁴ International humanitarian law also has a salient role in ensuring military discipline and thus several of its rules originate in national military codes.¹⁵ Consequently, pragmatism in the creation and application of the law of war was of paramount importance that often resulted in an anti-formalist ethos, putting emphasis on principles and standards instead of rules, especially concerning the regulation of methods and means of combat.¹⁶ While IHL definitely aims to constrain violence, it also legitimizes it.¹⁷

In light of the above, one might agree with the statement that ‘[T]he movement for laws of war owes less to professors, statesmen[,] and moralists than to military commanders’.¹⁸ In practice, most international humanitarian law experts belong either in the military or in the International Committee of the Red Cross (ICRC),¹⁹ and even though the ICRC enjoys a unique legitimacy as the guardian of the 1949 Geneva Conventions, constantly working together with military lawyers on the battlefield, actively participating in international codifications and producing influential legal commentaries and studies, they also have to operate in an environment that is dominated by military lawyers.²⁰ This environment inevitably fosters deference to state authority.

However, a human rights-oriented approach denies the classical pragmatic and sovereignty-focused conception of the law of war. For instance, Lauterpacht passionately pleaded that ‘We shall utterly fail to understand the true character of the law of war unless we are to realize that its purpose is almost entirely humanitarian in the literal sense of the word, namely[,]to prevent or mitigate suffering and, in some cases, to rescue life from the savagery of battle and passion. This, and not the regulation and direction of hostilities, is its essential purpose’.²¹ Beyond the influence of human rights, this perspective foregrounds the significance of international criminal law and claims that the development of war crimes law by international criminal fora ‘humanized humanitarian law’,²² leading from an inter-state to an individual-rights perspective, as also evidenced by the phrase ‘international humanitarian law’ increasingly supplanting other terms such as the ‘law of war’.²³ Such an approach could significantly influence even the most fundamental rules of IHL.²⁴

In contrast to the fundamentally state-centric regulatory framework of international humanitarian law, international criminal law is premised on the concept of individual criminal responsibility, which requires the application of more precise norms. To meet this specificity requirement, war crimes law had to transform the underlying humanitarian law norms to effectively establish criminality, often making the underlying IHL rules more precise.²⁵

Even though war crimes law is based on the rules and principles of the highly specialized field of international humanitarian law, it has a distinct epistemic community. International criminal law is claimed to have three dimensions: ‘the “universalist” aspirations of public international law, the “humanist” dimension of human rights law and the legality and fairness-oriented foundations of criminal law’.²⁶ As elaborated below, modern international criminal law institutions are largely dominated by human rights sensitivities²⁷ that generally view sovereignty as a potential roadblock on the road to progress to international criminal justice.²⁸

While international humanitarian law is indispensable for the existence of war crimes law, the opposite is not necessarily apparent. Even though it has been suggested that ‘the rule of international humanitarian law depends on its enforcement through the prosecution and punishment of its offenders’,²⁹ Sivakumaran rightly points out that criminal enforcement is limited as it necessarily relates to violations that have already taken place. As such, it can only act as a complement to other forms of enforcement and implementation.³⁰ Indeed, the laws of armed conflict were traditionally not enforced by criminal law norms and most international humanitarian law norms are even today not subject to criminal enforcement as that requires a customary norm criminalizing the underlying conduct.³¹ Still, the development of war crimes law can potentially broaden the scope of application of IHL, such as in the case of the enlargement of the rules applicable to non-international armed conflicts.³² However, war crimes norms can even restrict the application of the underlying humanitarian norm by creating the false impression that if a specific conduct is not a war crime, then it is lawful.³³ Blum poignantly refutes the latter view by reminding us that ‘the lion’s share of the human casualties and the property destruction of protected persons and objects on these battlefields can be traced to everyday combat missions carried out with no criminal intent, under resource constraints, conditions of uncertainty, and a general preference for the defense of one’s own forces and civilians’.³⁴

One example of the potential danger of restricting humanitarian protection by adopting international criminal law standards is the application of the proportionality standard during targeting decisions. International criminal law’s more demanding proportionality assessment that requires ‘excessive’ civilian casualties during targeting already has an impact on the IHL interpretation, which arguably threatens the attainment of humanitarian values by allowing a much larger amount of collateral damage than the classic humanitarian law standard.³⁵ This, however, raises the question whether the engagement of international criminal fora in the development of war crimes law could occasionally threaten the integrity of the laws of armed conflict.

3 International Criminal Fora and the Development of War Crimes Law

3.1 The Application of War Crimes Law after the World Wars

The idea that international judicial institutions could have the power to apply international humanitarian law without clear jurisdictional limitations, have been controversial ever since its first appearance during the First World War. On 25 January 1919, the victorious Allied Powers established the Commission on the Responsibility of the Authors of the War and the Enforcement of Penalties that proposed the creation of an international criminal tribunal tasked with prosecuting alleged German war criminals.³⁶ The United States, however, flatly rejected the idea. It emphasized that ‘[T]he American representatives know of no international statute or convention making a violation of the laws and customs of war—not to speak of the laws of principles of humanity—an international crime, affixing a punishment to it, and declaring the court which has jurisdiction over the offence’.³⁷

While the proposed High Tribunal never became operational, similar concerns were raised during the drafting process of the London Charter of the International Military Tribunal (IMT), when both the British and the US delegates argued that the judges are not supposed to determine what constitutes a violation of international law.³⁸ Nevertheless, eventually, the bench was provided with ample opportunity to determine applicable war crimes law as Article 6(b) of the charter defined war crimes broadly as ‘violations of the laws or customs of war’, listing a few prohibited acts, thus allowing judges to establish individual criminal responsibility by recourse to customary international law.³⁹ Even though this was criticized by the defence lawyers as inconsistent with the principle of legality,⁴⁰ the tribunal dismissed this argument. It emphasized that ‘the maxim [nullum crimen sine lege] is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished’.⁴¹

The Nuremberg Tribunal at the same time underlined that the definitions of crimes set out in its charter are based on extant rules of public international law.⁴² However, it also explained that the laws of war ‘are not static, but by continual adaptation follow the needs of a changing world’,⁴³ justifying how violations of certain provisions of the IV Hague Convention of 1907 could give rise to criminal responsibility despite the lack of explicit statement to that effect.⁴⁴

Ultimately, the Nuremberg Tribunal played a significant role in the development of war crimes law. It created a precedent for the application of customary law to establish individual criminal responsibility while at the same time denying the innovative nature of its jurisprudence.⁴⁵

3.2 The Open Revolution of the Yugoslavia Tribunal

In contrast to its predecessors, the ICTY has proudly acknowledged its prominent role in the development of international humanitarian law.⁴⁶ The drafters of its statute explicitly allowed direct recourse to customary international humanitarian law in Article 3 that provided a non-exhaustive list of violations of the laws or customs of war.⁴⁷ It has been described as a ‘residual clause’ designed to ensure that the jurisdiction of the tribunal over all serious violations of humanitarian law as the category of war crimes is ‘watertight and inescapable’.⁴⁸ Utilizing this provision, the Yugoslavia Tribunal embarked on a quest to revolutionize war crimes law. In the 1995 Tadić Appeals Decision, the Appeals Chamber ‘stunned international lawyers by issuing a broad and innovative reading of […] war crimes’,⁴⁹ in particular by claiming that the rules applicable in non-international armed conflicts are largely identical to the regulatory framework of international armed conflicts. Most commentators regarded this move as a clear example of judicial law-making.⁵⁰

Officially, however, judges were not vested with law-making capacity at the ICTY. In this respect, the Secretary-General unequivocally stated that ‘the application of nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence to some but not all [s]tates to specific conventions does not arise’.⁵¹ This interpretation was later affirmed in the tribunal’s jurisprudence.⁵²

The formal requirement of strict legality led to extensive reliance on customary law, disguising the judicial revolution as a conservative ascertainment of customary law, ostensibly demonstrating the existence of the requisite state practice and opinio juris to prove the existence of a customary norm.⁵³ Nevertheless, in practice, the tribunal provided remarkably few instances of state practice,⁵⁴ and instead invoked humanitarian ideals as a form of opinio juris. The expansion of the rules applicable to international armed conflicts to the domain of non-international armed conflicts was primarily justified by the assertion that ‘[I]f international law, while of course duly safeguarding the legitimate interests of [s]tates, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight’.⁵⁵ In this spirit, declaring that weapons prohibited in international armed conflicts are automatically prohibited in non-international armed conflicts was deemed obvious since ‘elementary considerations of humanity and common sense make it preposterous that the use by [s]tates of weapons prohibited in armed conflicts between themselves be allowed when [s]tates try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’.⁵⁶

This approach reached its pinnacle in the Kupreškić Trial Judgment, which declared that the Martens Clause ‘clearly shows that principles of humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of the public conscience, even where [s]tate practice is scant or inconsistent’.⁵⁷ However, this radical reinterpretation of the formation of customary international law that would have practically equated morality with law ultimately failed.⁵⁸ Still, notwithstanding the criticism of certain scholars, who decried the potential impact of the ICTY’s relaxed methodology in the ascertainment of customary international law,⁵⁹ most authors immediately espoused the findings of the tribunal.⁶⁰

Even though most scholars analysing the judicial innovations of the Yugoslavia Tribunal focused on its methodology of ascertaining customary rules, the ICTY also attempted to expand the protective scope of international humanitarian law through progressive interpretation. In the Aleksovski judgement, the tribunal stated that the nullum crimen sine lege principle ‘does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime’.⁶¹

Interpretation, of course, is already inherent in the identification of customary norms as it is ‘required to answer what general practice is and when this is accepted as law’.⁶² The tribunal, however, aimed to radically reinterpret IHL treaties as well through the adoption of a ‘victim-focused teleological reasoning’ that conflated ‘the “general justifying aim” of the criminal law system as a whole—which may be a utilitarian aim of protecting society—with the question of whether it is justified to punish a particular individual for a particular crime’.⁶³ The focus on the protection of individual rights of the potential victims led to a reliance on the object and purpose of treaties—a classical human rights court approach⁶⁴—justifying generally broad interpretations of crimes fundamentally at odds with the classical criminal law approach that favours the strict construction of statutes.⁶⁵

This expansive interpretation is amply demonstrated by the tribunal’s jurisprudence concerning the nationality requirement in Article 4 of Geneva Convention IV that sets out the personal scope of application of the convention. It states that

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a [s]tate which is not bound by the Convention are not protected by it. Nationals of a neutral [s]tate who find themselves in the territory of a belligerent [s]tate, and nationals of a co-belligerent [s]tate, shall not be regarded as protected persons while the [s]tate of which they are nationals has normal diplomatic representation in the [s]tate in whose hands they are.

A plain reading of the text clearly suggests that the states parties did not intend to extend the application of GCIV to their own nationals when they are on opposing sides of an armed conflict. Nevertheless, the ICTY proposed a radically different approach: in a string of decisions, it claimed that beyond the formal category of nationality, even those persons should be protected by the convention who have the same nationality as the state in whose ‘hands’ they find themselves if they have ethnic allegiance to the foreign party participating in the conflict.⁶⁶ The tribunal emphasized that its interpretation was based ‘not only the text and the drafting history of the Convention but also, and more importantly, the Convention’s object and purpose’.⁶⁷

Even though in the Čelebići case this approach was challenged by the defence as an effective re-writing of the Geneva Conventions, the Appeals Chamber reasserted that the nationality requirement in Article 4 of Geneva Convention IV should be ascertained within the context of the object and purpose of humanitarian law, which ‘is directed to the protection of civilians to the maximum extent possible’, taking into account the changing nature of the armed conflicts since 1945, and in particular the development of conflicts based on ethnic or religious grounds.⁶⁸

While this extensive interpretation was generally espoused in legal doctrine⁶⁹ and by the International Criminal Court,⁷⁰ it is clearly contrary to both the plain text of the convention and the original intention of the drafters.⁷¹ Similar to the progressive approach to the identification of customary norms, it also relies on an ‘in dubio pro humanitate’ approach where the court tries to create a generally applicable rule for the future with the intention of protecting future victims of conflicts, disregarding its impact on the defendants.⁷² As the general ‘humanization’ doctrine, it also presumes that the 1949 Geneva Conventions ‘have been drawn up first and foremost to protect individuals, and not to serve [s]tate interests’.⁷³ This, however, has not necessarily reflected historical reality. Contemporary scholars generally agreed that the Geneva Conventions were ‘based, as it should be, on practical and realistic considerations, striking […] an equilibrium between the cruel necessities of war and humanitarian ideals’,⁷⁴ and this balancing act between individual and state security is clearly revealed in the travaux préparatoires of the conventions.⁷⁵

It seems that a number of consecutive factors explain the reasons for the undeniable success of the ICTY in judicial law-making. While the institutional design of the tribunal enabled the judges to invoke customary war crimes with reference to ‘laws and customs of war’ in Article 3 of the statute, that was in itself insufficient.⁷⁶ A much more significant aspect in its achievement was a unique combination of opportune time and the support of the international community and legal scholarship.

The Yugoslavia Tribunal was created after the collapse of the Cold War system, during a period of time of unprecedented cooperation between the permanent members of the Security Council addressing violations of a conflict receiving intense media coverage all over the world.⁷⁷ The ICTY was a ‘safe’ tribunal in the sense that it was unlikely to prosecute nationals of any of the major military powers⁷⁸ and its most important judicial innovations concerned non-international armed conflicts that not only did not unduly concern the influential states but even allowed them to benefit from the newly created customary rules during the ‘war on terror’.⁷⁹ This created an environment where the judges could act without fear of jeopardizing their institution or even the ‘edifice of international law’⁸⁰ and facing accountability.⁸¹ Moreover, certain judges, most notably the first president of the tribunal, the renowned international lawyer Antonio Cassese openly advocated judicial law-making, wondering ‘whether one ought not to move beyond the strict legal parameters agreed upon by states, at least whenever the need to oppose glaring injustice would oblige one to do so’.⁸²

Ultimately, the ICTY’s success was cemented by the widespread scholarly acceptance of most of its jurisprudence.⁸³ While ‘academic demolitions of the reasoning and results in cases can have a considerable effect on the reception of such decisions’,⁸⁴ uniform support in the international legal scholarship practically elevates court decisions to the level of primary source of international law.⁸⁵

4 The International Criminal Court—A Bulwark against Judicial Activism?

The 1998 Rome Diplomatic Conference has largely codified the judicial innovations of the ICTY in war crimes law. For instance, the definition of non-international armed conflict in Article (2)(f), which is almost a verbatim repetition of the definition set forth in the Tadić Jurisdiction Appeal Decision.⁸⁶ Philippe Kirsch, the chairperson of the Committee of the Whole at the Rome Diplomatic Conference and the ICC’s first president, opined that states generally agreed that ‘the definitions of crimes in the ICC Statute were to reflect existing customary international law, and not create new law’.⁸⁷ Correspondingly, in a recent judgment, the Appeals Chamber considered that ‘the crimes under the Statute were intended to be generally representative of the state of customary international law when the Statute was drafted’.⁸⁸

However, the participating countries no longer seemed to be willing to provide an opportunity for judges to engage in judicial law-making. At the opening plenary of the conference, President Scalfaro of the host state Italy pronounced that ‘[C]riminal law should always precede crimes; it should be known that the crimes were punishable by law and what the penalties would be’.⁸⁹ This sentiment was echoed by the US that emphasized that ‘[T]he Court must have a clear, precise and well-established understanding of what conduct constituted a crime […] Vague formulas that left the Court to decide on the fundamental parameters of crimes should be avoided’.⁹⁰ To achieve this required level of precision, the United States had proposed the development of the Elements of Crimes,⁹¹ and Article 8 of the ICC Statute aimed to provide for an exhaustive catalogue of prohibited acts and as a result, the definition of war crimes reached a level of unprecedented specificity.⁹²

As further precaution against the ‘Cassese approach’,⁹³ the drafters adopted several provisions with the intention of curtailing judicial innovation and ensuring that the criminal lawyers’ perspective prevails over the humanization narrative.⁹⁴ Article 21 of the ICC Statute created a hierarchy of applicable sources that obliged the Court to use its statute, Elements of Crimes and its Rules of Procedure and Evidence in the first place and every other potential source only if those are inadequate to come to a conclusion.⁹⁵ Moreover, Article 22 of the statute codified the nullum crimen sine lege principle prescribing strict construction of the definition of crimes.⁹⁶ Schabas sardonically observed that ‘the drafters of the ICC Statute decided that while they appreciated the results of judicial activism in the past, they were not anxious for it to be repeated’.⁹⁷

A further sign of distrust in judges is the fact that the very term ‘custom’ has become ‘something of taboo’.⁹⁸ The ICC Statute does not mention the term ‘customary international law’ but refers more generically to ‘rules of international law’.⁹⁹ However, Article 21(1)(b) of the Rome Statute expressly refers to ‘the established principles of the international law of armed conflict’, and the introduction to War Crimes in the Elements of Crimes instructs its interpretation ‘within the established framework of the international law of armed conflict’. Accordingly, the statute itself actually allows for recourse to custom in specific cases. However, as pointed out by Bufalini, ‘the customary rule at issue must be coherent with the other provisions of the Statute and adequate to be part of its normative system’.¹⁰⁰

This is supported by the Court’s jurisprudence. In the Katanga case, the Pre-Trial Chamber (PTC) held that ‘principles and rules of international law constitute a secondary source applicable only when the statutory material fails to prescribe a legal solution’.¹⁰¹ In the Al Bashir case, the ICC concluded that customary rules and general principles of law ‘can only be applied when the following two conditions are met: (i) there is a lacuna in the written law contained in the Statute, the Elements of Crimes and the Rules; and (ii) such lacuna cannot be filled by the application of the criteria provided for in [A]rticles 31 and 32 of the Vienna Convention on the Law of the Treaties and [A]rticle 21(3) of the Statute’.¹⁰²

However, as Powderly pointed out, Article 21(1)(b) and the Elements of Crimes ‘invite recourse to customary rules and principles of international humanitarian law, regardless of whether or not a lacuna exists. There is significant creative potential in accepting this invitation’.¹⁰³ The ICC did not fail to capitalize on this potential. For instance, it discovered a ‘glaring statutory gap’ concerning the lack of a definition for international and non-international armed conflicts¹⁰⁴ and for the civilian population¹⁰⁵ in the statute.

The law-making potential of the Court was eventually exposed in the Ntaganda judgement that has been described as ‘a problematic interpretation from the point of view of the principle of legality and the limits of judicial law-making’,¹⁰⁶ and ‘the most dramatic expansion in the scope of war crimes since the Tadić case’.¹⁰⁷ In Ntaganda, the ICC used different strategies to prove that war crimes—in this case, rape and sexual slavery—can be committed by members of armed forces on members of the same armed force, which radically refuted the prevailing orthodoxy that crimes committed between servicemen do not constitute war crimes.¹⁰⁸

The Pre-Trial Chamber found that children under the age of 15 do not automatically become direct or active participants in hostilities by joining an armed group because that ‘would contradict the very rationale underlying the protection afforded to such children against recruitment and use in hostilities’.¹⁰⁹ The PTC concluded that child soldiers under the age of 15 only lose their protected status afforded by IHL during direct/active participation in hostilities; however, ‘[T]he sexual character of these crimes, which involve elements of force/coercion or the exercise of rights of ownership, logically preclude active participation in hostilities at the same time’.¹¹⁰ Even though the PTC’s argumentation was innovative, it was not a radical reinterpretation of the existing normative framework. While the concept of protection for persons hors de combat is firmly established in both international and non-international armed conflicts,¹¹¹ it was originally not envisaged to include intra-party violence, as members of the same party are not a threat to each other under normal circumstances. Nevertheless, a broad reading to protect children under the age of 15 is certainly justifiable from a humanitarian perspective and does not create potential structural problems in the system of international humanitarian law.¹¹²

The Trial Chamber came to the same conclusion as the Pre-Trial Chamber, but relied on a completely different basis, combining textual interpretation of the Rome Statute and the requirements of humanity. The chamber first noted that even though Articles 8(2)(a) and (c) referred to specific victim status requirements in their chapeau, that is, that the person be protected by the relevant provisions of the Geneva Conventions under paragraph (a) or be taking no active part in hostilities under paragraph (c), no such limitations could be found in sub-paragraphs (b) and (e), the provisions under which Ntaganda had been charged.¹¹³ It added that the widespread prohibition of rape and other forms of sexual violence and the reference of the Martens clause to ‘the principles of humanity and […] dictates of public conscience’ support the contention that the protection against such acts should be widely applicable and any limitation of the scope of protection is contrary to the rationale of international humanitarian law.¹¹⁴ This decision much more closely resembles the ICTY’s revolutionary jurisprudence than the Pre-Trial Chamber’s conclusions, as it explicitly invokes a humanizing rationale to expand the scope of application of humanitarian law. However, this approach seems positively restrained compared to the Appeals Chamber’s analysis.

The Appeals Chamber stipulated that the reference to ‘the established framework of international law’ allows for the direct application of norms of custom in cases of crimes within Articles 8 (2) (b) and (e) and thus the introduction of additional elements to these crimes, even in the absence of a lacuna. The Court emphasized that

If customary or conventional international law stipulates in respect of a given war crime set out in [A]rticle 8(2)(b) or (e) of the Statute an additional element of that crime, the Court cannot be precluded from applying it to ensure consistency of the provision with international humanitarian law, irrespective of whether this requires ascribing to a term in the provision a particular interpretation or reading an additional element into it.¹¹⁵

According to the Appeals Chambers, the war crimes under Articles 8(2)(b) and (e) did not require the victim to hold the status of civilian or person hors de combat under customary international law as ‘international humanitarian law does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group’.¹¹⁶ The Appeals Chamber claimed this approach is applicable even if the victims of the crimes do not meet the status requirements.¹¹⁷ Moreover, in a potentially even more impactful statement, it pronounced that it is the ‘nexus requirement, and not the purported Status Requirement, that sufficiently and appropriately delineates war crimes from ordinary crimes’.¹¹⁸ Accepting this logic, every single crime that is committed in the context of an armed conflict could be deemed as a war crime.

The Court was fully mindful of the potential ramifications of its decision.¹¹⁹ Instead of retaining the compromise solution of the Pre-Trial Chamber, it boldly employed a teleological interpretation underscored by an alleged lack of contrary custom to expand the protective scope of international humanitarian law in a manner that ‘a war crime does not have to violate IHL’.¹²⁰ The Ntaganda case clearly demonstrates that the institutional design of the ICC Statute cannot prevent the judges from judicial law-making as the different chambers of the ICC all managed to find different methods to achieve their desired outcome, freely resorting to invoking customary law (or the lack thereof), teleological interpretation, or direct referral to humanitarian considerations. The ICC thus was prepared to embark on the path of judicial revolution, just like the ICTY, whose jurisprudential practice was supposed to be its antithesis.¹²¹

5 Conclusion—Much Ado about Nothing?

Even in the early 2010s, several authors considered that the exhaustive codification of the Rome Statute and the central role of the principle of legality would restrict judicial creativity at the International Criminal Court. Darcy opined that ‘the detailed, exhaustive approach of Article 8 of the Rome Statute and the “Elements of Crimes” may preclude its judges from straying too far from the letter of the written law’,¹²² while Schabas surmised that ‘[A]rguably, some of the broad interpretations of the definitions of crimes in the statutes of the ad hoc tribunals, such as […] the expansion of “laws or customs of war” to crimes committed in non-international armed conflict […] would be impermissible were [A]rticle 22(2) to be applied’.¹²³ In a recent writing, Pellet retained his earlier opinion and expressed his apprehension that ‘by freezing it in a sometimes daring but often inadequate and regressive text, the authors of the Statute have limited the chances of making the Court an efficient instrument in the struggle against the crimes it is supposed to repress’.¹²⁴

The more recent jurisprudence of the Court, however, seems to have allayed these fears. As Powderly observed, ‘[T]he bench has identified sufficient wriggle-room in order to allow them to breathe life into the law’.¹²⁵ Even though overt reference to customary law has significantly diminished compared to the Yugoslavia Tribunal’s case law, the ICC was still free to develop new judicial interpretations that significantly expanded the scope of application of war crimes law. Ultimately, institutional design cannot prevent judges from (re)interpreting the law according to their personal preferences.¹²⁶ Paradoxically, the denial of the judges’ law-making capacity is exactly what makes judges capable of creating new laws.¹²⁷

Thus, Pellet’s insight proved to be prophetic: ‘One may, thus, predict that the judges will interpret the text, at least partially, so as to recover the powers inherent in all courts, of which the drafters of the Statute dearly wanted to deprive them’.¹²⁸ Still, the Court should be mindful of its responsibility when engaging in judicial law-making to avoid undermining the regulatory framework of the law of armed conflict through the undue expansion of war crimes law.¹²⁹