Comparing International Criminal Tribunals’ Interpretive Approaches to International Humanitarian Law

Abstract

International humanitarian law (IHL) is conventionally described as a set of rules which seek to limit the effects of armed conflicts. These rules, invariably, rely on rule arbiters such as national and international courts. Much of IHL has therefore been made and unmade by international criminal tribunals, which are typically set up with the mandate of enforcing IHL norms. While the work of international criminal tribunals is rigorously documented, their short and fragmented lives have prevented comprehensive studies of their interpretive practices. Here, interpretation is understood as the argumentative praxis which gives fresh meanings to an existing norm. This chapter is an effort to systematically study the interpretive practices of international criminal tribunals vis-a-vis IHL norms: which approaches came to be adopted, what were the origins of these approaches, and what were the motivations behind their application. In so doing, this chapter reviews how interpretive approaches—stood alone and taken cumulatively—shaped the realities and politics of IHL.

1 Introduction

International humanitarian law (IHL) is conventionally described as a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict.¹ However, IHL finds its roots in a place of paradox. In Meurant’s words, it prescribes a “legal system to regulate acts which are fundamentally opposed to the law”.² With the setting up of the International Committee of the Red Cross, it was commonly accepted that IHL was not a promise to eliminate war but an endeavour to mitigate and attenuate its hostilities.³ This naturally leaves much to interpretation. There are two main understandings of the function of interpretation. To some scholars, interpretation is the process which releases the exact meaning of a legal norm.⁴ To others, interpretation is an argumentative praxis that gives fresh meaning to a norm.⁵ Grover has usefully deconstructed the interpretive exercise into parts—noting that the first step is to identify a primary interpretive principle, offer arguments to ground this principle, and canvas a list of aids in which this argument finds support.⁶ In this chapter, I consider this latter understanding of interpretation as an exercise to give meaning to IHL norms. IHL relies on multiple interpreters—from the International Committee of the Red Cross (ICRC), members of armed forces, States, and more recently, international tribunals. As Blishchenko noted, IHL owes a great deal to decisions handed down by national and international courts.⁷

This chapter is particularly interested in studying and comparing the interpretive practices of international criminal tribunals. Established to “prosecute and prevent continuing violations of international humanitarian law”, international criminal tribunals have assumed the primary role in articulating the interpretive framework for IHL.⁸ Especially in a regime such as IHL, which is dominated by the lack of practice, international tribunals command considerable weight due to the assertive and reasoned character of their decisions.⁹ This chapter focuses on the interpretive approaches used by the ad hoc tribunals [the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)], the International Criminal Court (ICC), and the Special Court of Sierra Leone (SCSL). Given the multiplicity of interpretive approaches that are in circulation now, this chapter selects certain traditional and non-traditional rules which have been invoked in readings of both treaties and customary IHL. As I will later explain, the chosen tribunals represent a healthy range in terms of formality, political context, judicial independence, and state of the art of IHL and international human rights law (IHRL). Sects. 4.2, 4.3, 4.4 and 4.5 of the chapter canvas the rules of treaty interpretation employed by the chosen tribunals. These sections also draw comparisons between the trends emerging out of the practice of each tribunal. Section 4.6 unpacks the more systemic and political causes underlying the aforementioned interpretive trends.

2 Literal Approach

2.1 Plain and Ordinary Meaning

The jurisprudence of the ad hoc tribunals is hard to ignore when taking stock of IHL. Created at a time when international criminal law was just beginning to take shape, the ad hoc tribunals had scant guidance to fall back on.¹⁰ They were left to create rules of procedure for their own working and add legs to the substantive and procedural norms that they had the opportunity to adjudicate.¹¹

While there are differences between domestic and international law-making,¹² both regimes mostly share the same interpretive toolboxes. In both fields, arguably, one of the most commonly used interpretive tools is the literal approach.¹³ The literal approach prods the interpreters to assign the ordinary meaning to the text of the statute.¹⁴ Some argue that the literal approach commands the greatest weight because it is autonomous and greatly limits interpretive discretion and the politics that accompany it.¹⁵ However, the text is not always a guarantee of clarity.¹⁶ Contrary to the belief that the text mitigates the risk of politicization, the text by itself is the product of hegemonic legal structures and is invoked precisely to show the door to epistemologies which challenge its preferred narrative.¹⁷

Nonetheless, the early case law of the ad hoc tribunals reveals a recurring application of the literal rule.¹⁸ The Report of the Secretary-General, constituting the ICTY and ICTR explicitly identifies the Statute of the Tribunal as the primary source/applicable law.¹⁹

Albeit difficult to believe based on the popular legacy of the Tadić case, conventional text was very much the anchor of various phases of the case. Case in point is the Appeals Chamber decision in Tadić. Here, the Chamber disagreed with the Trial Chamber’s view that grave breaches of the Geneva Conventions could occur in non-international armed conflicts. The Chamber’s sole reason was that Article 2 of the Statute placed a burden on the parties/the Court to establish the fact of an international armed conflict²⁰ and that the statute enjoyed precedence over customary law. The requirement of proving an international armed conflict led the Chamber to also read the list of “protected persons” strictly. In so doing, the Chamber stressed that grave breaches had to be directed against victims of a nationality different from that of the perpetrator.²¹

Similarly, in the Akayesu case before the ICTR, the Appeals Chamber was tasked with giving meaning to the term ‘instigation’ when determining liability for IHL violations.²² The Chamber looked at the thesaurus meaning of the word ‘instigation’ to conclude that instigation did not require the call to be direct and public.²³ Interestingly, despite its strong linguistic commitment, it did not give enough credit to the semantic difference between the English term ‘instigation’ and its French translation.²⁴

Despite the regular recourse to the literal rule, ad hoc tribunals had little source material to work with given the glaring ambiguities and scantness of their constitutive statutes.²⁵ International criminal law itself was rather nascent at the time. The tribunals were left with no choice but to consult customary norms and general principles to bolster their reasoning.²⁶ Unsurprisingly, every instance of departure from the text by the tribunals was overwhelmingly written off as a rebellious act of judicial law-making.²⁷ An unexpected source of support was the Secretary-General of the UN whose report had forewarned that text would be an insufficient source of lawmaking for the tribunals.²⁸ Seeing this, when drafting the statute of the ICTY, the Secretary-General was particular to recommend a recourse to customary law. As the late Robert Cryer pertinently highlights, the same cannot be said of the ICTR statute whose drafting the Secretary-General did not partake in.²⁹ The Secretary-General famously remarked that the war crimes provision of the ICTR statute, in relying on Additional Protocol II, had moved beyond the realm of customary law.³⁰ This soon became the defining identity of the ad hoc tribunals. The turn to custom and the consequent pushing of the boundaries of IHL/ICL was not as well-received by States. The raging criticism of the practice of the ad hoc tribunals was the disregard of the principle of legality according to which offences must be clearly defined by the law and criminalized before the commission of the impugned conduct.³¹

The reprisals against the turn to custom prompted the inclusion of an applicable laws provision in the Rome Statute setting up the International Criminal Court (ICC).³² Article 21 of the Statute now requires the ICC to first apply the principles prescribed by the Statute itself and then consult its previous decisions, general principles of international law, and such.³³ Article 21 was intended to be a codified instruction to the Court to prioritize the Statute over custom.³⁴ The enforced hierarchy has also led to greater application of text by the Court. In almost all cases before the Court, the judges first test out the literal approach, before moving to other approaches. Illustratively, in Lubanga, the Trial Chamber differentiated between “enlistment” and “conscription” using their thesaurus meanings.³⁵ In the Katanga admissibility decision where the Court was posed with unravelling the meaning of the term ‘commencement of the trial’ under Article 19(4) of the Rome Statute, the Court emphasized on the primacy of the literal approach.³⁶ Here too, the literal approach was the first resort, with the Court rushing to pin the ordinary meaning of the text. In this instance though, the text itself was unhelpful. Citing this, the Court placed reliance on the context and supplementary interpretive tools instead.

Comparatively, at the Special Court for Sierra Leone (SCSL), the literal approach did not find much traction. It seems that the primary reason for the disuse of the textual rule is that the Court was largely faced with cases arising out of the conscription of child soldiers and the practice of having bush wives. These were both areas that were completely new to IHL and the SCSL was at the helm of the effort to add meaning to them.³⁷ It is only exceptionally that the Court invoked the plain and ordinary meaning. Most often this was done when decoding statements made by the AFRC leaders where they referred to themselves as “government” or to their “bush wives”.³⁸ On the IHL regime governing child soldiers, the Court typically resorted to the plain meaning when ascertaining whether or not conscription necessarily required the recruited children to participate in hostilities.³⁹ In his separate opinion in the Gbao et al. decision, referring to the text of Article 4 of the SCSL Statute which defined conscription as the act of “enlisting of children into armed forces or using them to actively participate in hostilities”, Justice Thompson found that the disjunctive “or” did not need both elements to be present.⁴⁰

2.2 Contextual Interpretation

While the text was definitively considered to be a starting point by most tribunals, it was also equally accepted that the law did not exist in a vacuum. The events and discussions preceding the adoption of legal texts are particularly determinative as to the meaning that should be anointed to the law.⁴¹ In domestic law, in cases where the text is ambiguous, it is replaced by a reading of the ‘context’, that is the circumstances in which the text was adopted. Here, text and context are mutually exclusive. Compared to domestic law however, international legal interpretation is inclined to consider the context in conjunction with and not separate from the text, as evidenced by Article 31(3) of the Vienna Convention on the Law of Treaties.⁴²

Sandorski explains that drafters’ intent is particularly significant for IHL given that the entire regime consists of self-executing norms.⁴³

In other words, this means that IHL, by design, does not have the bandwidth to rely on in situ or post facto interpretations. It is tied to before the fact guidance. Importantly, the Delalić Chamber of the ICTY treated contextual interpretation as a variant of the literal rule.⁴⁴ The ICC Appeals Chamber, too, has found that interpreting the text itself requires the interpreter to “read the provision in entirety and in conjunction with its context”.⁴⁵ Context finds equal force in the identification of custom as well.⁴⁶

The versatility of literal readings has motivated international criminal tribunals to even borrow specific interpretive formulae from national jurisdictions. In Blaskić, the ICTY referenced the rule of ejusdem generis, which commentators describe as a linguistic device that preserves the specificity of legal language. The point of contention in this case was whether crimes against property could be prosecuted as crimes against humanity and/or war crimes. The Appeals Chamber disagreed with the Defence’s argument invoking the ejusdem generis rule—the application of which would only allow crimes against persons to qualify.⁴⁷ Differently, Judges Van den Wyngaert and Morrison of the ICC applied ejusdem generis to the residual clause of “other inhumane acts” in Article 7(1)(k) to disqualify the crime of pillage from being prosecuted as a crime against humanity.⁴⁸

2.3 Limitations of the Text

While there are certainly benefits of a literal approach in so far as it increases the durability of laws and limits interpretive discretion of judges, textual allegiance can often injure victims too. This is an important line of inquiry given that international criminal tribunals have applied textual readings to endorse completely opposite meanings of the impugned words which have had the effect of legitimizing State sponsored crimes.⁴⁹ As Schabas notes, loyalty to the text bodes often conflates into the strict construction of core crimes.⁵⁰ For a field of law such as IHL that is only now beginning to find its feet, exclusive reliance on the text can become a gatekeeper for victim experiences and the full emancipatory potential of IHL.

Moreover, literal readings cement the dominance of the written text, showing the door to visual and other non-textual features of the law.⁵¹ This is noteworthy because international criminal law and IHL both rely heavily on their expressive and reparative features, most of which are visual and experiential rather than textual.⁵²

Such non-textual features typically find genesis in non-Western epistemologies. Therefore, the preference for text not only ends up eliminating the more reparative features of the law, it also writes out the injustices meted out to peoples of color. Affixing ordinary meaning and subjecting all parties in the trial to the same ordinary meaning runs the risk of invisibilizing the linguistic and cultural pluralism that is inherent to international forums.⁵³ This challenge has plagued both IHL and international criminal law right from their genesis. Illustratively, a major talking point at the time of the drafting of the Geneva Conventions was their drafting language. Until 1929, the Geneva Conventions were exclusively drafted in French.⁵⁴ In 1949, plenipotentiaries to the drafting conference agreed that both French and English should be regarded as equally authentic texts of the Conventions, each informing and complementing the other.⁵⁵ This, however, is no guarantee of convergence. In fact, anticipating divergence, the drafters decided that the French and English versions would be presumed to have the same meaning and made all efforts to ensure that the two versions coincided in meaning and form.⁵⁶ Despite these efforts, the truth remains that only French and English—colonial languages—were chosen for the authentic text, diminishing the claims of other languages to international humanitarian law. Following the proposals by Latin American delegations attending the Diplomatic Conference of the Geneva Conventions, translations were made available in Russian and Spanish.⁵⁷ But these translations were considered secondary in status to the authentic versions, readily displaced by the English/French version in case of divergence. In so doing, a colonial hierarchy was enforced amongst the languages chosen.⁵⁸ Notwithstanding the attempts to enforce linguistic consistency, divergent readings were still generated and necessitated resort to other rules of interpretation. Linguistic disputes have continued to manifest at the ICC too. The Court has six official languages, including Arabic and Chinese.⁵⁹ Any reading that pedestalizes only certain languages from this list and ignores others will not do justice to the Statute or its stakeholders.⁶⁰ In recognition of this, Judge Kaul consulted the meaning of ‘State or organizational policy’ under Article 7(2)(a) of the Statute in all official languages.⁶¹ Sadly, such efforts remain few and exceptional.

The choice of official languages opens the door to more limitations of textual readings. At the ICTR, much of the litigation arose out of innuendo-filled speeches and posters, both of which would have otherwise easily circumvented the plain meaning test.⁶² The trials of Charles Taylor at the SCSL and Dominic Ongwen at the ICC are also particularly instructive as to these limitations. In Ongwen, the crux of the case was to understand the meaning of “childhood” in the Acholi context—both on the point of whether Ongwen was indeed a minor as per the Rome Statute and whether he was aware that he was conscripting “child” soldiers.⁶³ A literal reading of the Acholi terms kadoge/kadogi both of which translate to children would have been plainly insufficient to protect the rights of the accused. As the Defence showed, the term “kadoge” was typically used for anyone younger than oneself.⁶⁴

Relatedly, in Taylor’s trial, one of the Prosecution’s key witnesses was Joseph ZigZag Marzah who was a former member of Taylor’s National Patriotic Front of Liberia.⁶⁵ Given that Marzah was only fluent in the Creole language, the Court had to rely on simultaneous translations into English. As a result, much of Marzah’s phrases—“passport sized diamond”, “dressed up in human being form”—were not comprehendible to the Court.⁶⁶ Sadly, despite the wealth of substantive evidence in it, Marzah’s testimony—owing to the difficulty faced in deciphering it—was reduced to merely sensational significance.⁶⁷

3 Purposive Approach

3.1 Pedigree of the Rule

Tribunals interpreting IHL soon realized that strict construction would make IHL more arcane and difficult to apply. This realization triggered the turn to the purposive approach. Per Savigny’s account, the purposive approach is a search for the effect that the “law intended to achieve”.⁶⁸ Other descriptions of the approach differ slightly. The VCLT, for instance, prescribes a search for the object and purpose of the law.⁶⁹ In both Delalić and Tadić, the ICTY found that strict construction pits the State/legislature as an adversary of the victim.⁷⁰ The purposive approach, in comparison, was less antagonizing.

In the case of the ad hoc tribunals, the mandate to apply norms which “were beyond doubt a part of customary law” encouraged and facilitated attempts to read beyond the text.⁷¹ Since the text of the constitutive Statutes of the tribunals left much to conjecture, deciphering purpose offered a useful anchor for the tribunals’ interpretive efforts. Notwithstanding its evidentiary challenges,⁷² the purposive approach allowed the ad hoc tribunals to steer a “necessary development in broadening individual criminal responsibility to respond to modern international inter-ethnic conflict”.⁷³ In the famed paragraphs 166 and 168 of the Tadić decision, the ICTY observed that “Article 4 of Geneva Convention IV, if interpreted in light of its object and purpose, is directed to the protection of civilians to the maximum extent possible”.⁷⁴ This purpose—lofty as it sounds—meant that Article 4 could not be limited by narrow formal bonds such as nationality. Tadić was just the beginning of a series of functional readings. The teleological approach, first applied in Tadić, was later defended in Delalić and the Hadžihasanović decisions.⁷⁵ Similarly, when the SCSL was tasked with prosecuting defendants charged with the crime of conscription of child soldiers, a crime about which little was known at the time, the purposive approach proved far more useful. Being a hybrid court that shares more features with domestic criminal courts than international courts, the SCSL was not comfortable with determining strict liability for international crimes. This led to a natural proclivity for purposive readings. When determining liability for conscription of child soldiers, the Court extended liability to non-State actors by observing that IHL was “intended to apply to all parties in an internal armed conflict”.⁷⁶ In the AFRC decision, the Trial Chamber went so far as to openly acknowledge that “IHL is not grounded in formalistic postulations”.⁷⁷

3.2 Challenges to Application

It is no revelation that the purposive tool is more difficult to apply than it is to describe. Many attempts have been to unpack the method and nature of the approach. The primary attack levelled against the application of the purposive approach has been that of judicial activism, that the law-making predilections of the tribunal militates against international law’s grounding in State consent.⁷⁸ The bold statements furnished by tribunals in support of broad, purposive interpretations hardly ever justify the application of the interpretive approach and its suitability for the facts at case.⁷⁹ This lack of reasoning only clouds the case for clarity. Perhaps understandably then, purposive readings are accused of introducing excessive flexibility/indeterminacy into otherwise strictly circumscribed legal regimes.⁸⁰

The second line of attack has been directed at the deontological basis of the tool.⁸¹ In other words, what value is the approach trying to advance?⁸² Is it righteousness or justice? Is it the intent of the drafters? Some scholars suggest that the object and purpose approach is an ode to “common sense and good faith”.⁸³ The case law, instead, suggests that purposive readings uncover the fundamental values and philosophical orientations of the legal regime.⁸⁴ The Furundžija decision of the ICTY⁸⁵ and the Ntaganda decision of the ICC both illustrate that rule interpreters are mainly interested in advancing what is desirable for the law.⁸⁶

The third continuing challenge has been to identify whose object and purpose are being interpreted. Is it the object and purpose of the field of IHL more generally? Or of the specific provision under study? Or of international criminal law? As the ICJ has noted, treaties typically have multiple objectives, not all of which sit well with the vision underlying specific provisions.⁸⁷ International criminal law is vowed to legality and fair labelling,⁸⁸ whereas IHL is committed to governing warfare and reducing damage to victims. This makes it all the more important for courts to clarify which purpose they are singling out.⁸⁹

In Tadić, the Chamber’s reasoning was anchored in the object and purpose of Article 4 of Geneva Convention IV, which was to extend “safeguards afforded by the Geneva Convention to those civilians who are not subject to the allegiance and control of the State in whose hands they may find themselves”.⁹⁰ Citing this, the Appeals Chamber abandoned a nationality-based reading of protected persons. Differently though, in Hadžihasanović, when expanding the limits of command responsibility of military superiors, the Trial Chamber admitted that the object and purpose of Additional Protocol I—which was to affirm protections available to victims of armed conflict—were the same as that of IHL more broadly.⁹¹ Here, the ICTY moved to identifying the object and purpose of IHL more generally. In Ntaganda too the ICC was required to determine whether members of DPH were victims of intra-party sexual crimes.⁹² When extending IHL protections to such victims, the ICC was guided by the purpose of the regime to not let sexual crimes during conflict go unpunished.⁹³ It interpreted the purpose of the regime, rather than the purpose of specific provisions. The SCSL took a different route. In the Norman case, it noted that the purpose of customary law was to “represent the common standard of behaviour within the international community”.⁹⁴ That is why non-state actors could not be exempted from customary IHL prohibitions on the conscription of child soldiers.

As Barak explains, the purpose of the law could be either subjective or objective.⁹⁵ A subjective purpose refers to the intention of the interpreters and authors—the judges, lawyers, academics.⁹⁶ Objective intent is a reference to the purpose of the system, the Statute. This tends to veer into a philosophical assessment of the objectives of IHL and criminal sanction more generally. The ICTY has confirmed its reading of intent as objective intent in Delalić when it noted that “the international community can only come to grips with the hydra-headed elusiveness of human conduct through a reasonable as well as a purposive interpretation of existing provisions of international customary law”.⁹⁷ The Tadić case, however, is an telling example of how the judges’ own aspirations for the Court’s legacy inevitably colour the application of the teleological approach. Compared to the avowed goals of the ICTY, Dusko Tadić was a small fish—as a prison guard. That his trial has now become the touchstone of IHL norms is mainly the doing of the Tribunal itself. As Alvarez has expertly reasoned, cases with lower stakes and lesser “political temperatures” allowed the bar and bench to test out the substantive purposive principles of IHL with more ease.⁹⁸ That different ICTY Chambers have arrived at different conclusions when attempting teleological readings of the same provision only augurs this accusation. As aforementioned, while the Delalić Chamber found that the purpose of IHL is to ensure that victims are protected to the maximum extent possible,⁹⁹ the Chamber in Furundžija found that IHL was designed for “protecting human dignity”.¹⁰⁰ This only lends more weight to the concern that judges might be forwarding interpretations that are suited to their own predilections and their expectations of the international criminal justice project.

4 Effectiveness

Another interpretive approach that is prominently applied in tandem with purposive interpretation is the effectiveness approach. Linderfalk deconstructs the approach as one which zeroes in on readings that avoid situations where a part of the treaty is rendered normatively useless.¹⁰¹ The rationale is to preserve the original consent/agreement of the treaty parties.¹⁰² Effectiveness can be invoked to serve two purposes. The first is to prevent treaties from becoming futile. The second is to maximize the effect of the treaty.¹⁰³ Like the teleological approach, effectiveness has been critiqued for its constructivism and the overwhelming discretion that it vests in interpreting bodies.¹⁰⁴

The ad hoc tribunals have often applied the effectiveness approach in questions relating to IHL. One area in which effective interpretation has been in vogue is the delimitation of jurisdiction over IHL violations. In the Tadić case, a key point of contention was whether violations of Common Article 3 of the Geneva Conventions fell within the jurisdiction of the tribunal.¹⁰⁵ The Appeals Chamber, in what is often touted to be an overly broad reading,¹⁰⁶ ruled that Article 3 of the Tribunal’s Statute allowed the ICTY to exercise jurisdiction over all residual crimes, so as to “ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal”.¹⁰⁷ The “overall control test” devised in Tadić is another classic instance of the ICTY simplifying triggers to its jurisdiction in order to avoid a circumstance where certain conflicts remain unregulated.¹⁰⁸ Jurisdiction was also hotly contested during the establishment of the SCSL. In a move to “right-size” the Tribunal, the Secretary-General proposed a narrow personal jurisdiction for the Court, limited to individuals who bore the “greatest responsibility”.¹⁰⁹ Despite initial disagreement, the Court ultimately read its personal jurisdiction broadly to encompass both “killer-perpetrators and political military leaders”.¹¹⁰ Although this was not accompanied by a declaratory invocation of effectiveness, the Court seems to have been motivated by the need to secure the relevance of IHL and the effectiveness of its constitutive statute.

Another area in which effectiveness has been influential is the classification of armed conflicts. Once the ICTY had made a name for itself, as higher-ranked leaders came to be tried, the Tribunal was more inclined to classify conflicts as international.¹¹¹ Scholars surmise that perhaps this was because international armed conflicts allowed the grave breaches regime to be applied.¹¹² Soon after, the Tribunal realized that the conflict in Yugoslavia was, in fact, only vicariously waged between States. The ground reality revealed a more amorphous, fragmented set of conflicts at play. This explains the growing recognition of parallel conflicts and the recurring classification of internal conflicts.¹¹³ However, in the Hadžihasanović case, the ICTY strikingly found that NIACs to be a residual type of armed conflict.¹¹⁴ Given that the Prosecutor had not recorded the international nature of the armed conflict as a material fact, it was considered, “by default”, to be an internal conflict.¹¹⁵ Such an interpretation has recurred in the ICC. The Trial Chamber of the ICC, in the Lubanga case, found that the threshold for international armed conflicts had not been met.¹¹⁶ However, the Chamber did not apply the same rigour in testing whether the threshold for non-international armed conflicts had been met. In the Katanga confirmation decision, the Prosecution sought to characterize the conflict as an “internal conflict”.¹¹⁷ Even though the Prosecution had little to no evidence to offer to prove the level of organization of the forces warring with the forces allegedly controlled by the accused,¹¹⁸ the Chamber sided with the Prosecution’s labelling of the conflict.¹¹⁹ Bartels rightly observes that this was another occasion where the Court’s conclusions were based not on the strength of the Prosecution case but on the lack thereof.¹²⁰ In her dissenting opinion, Judge Wyngaert.¹²¹ found that the Chamber’s position was motivated by the need to preserve the effectiveness of ICL in the proximate future than the culpability of the accused in the case.

Although the SCSL has been relatively freed of the burden of classifying armed conflicts, effectiveness has permeated its reasoning through different routes. The SCSL was repeatedly faced with defendants accused of the crime of conscription of child soldiers. At the time of the setting up of the Court, the conventional understanding of conscription was circumscribed to State policies “requiring citizens to serve in their armed forces”.¹²² However, in the Liberian/Sierra Leonese context, conscription was exclusively alleged against members of non-state armed groups. Judge Robertson, in the Norman decision, emphasized that the key element of conscription was compulsion.¹²³ So long as this objective criterion was met, the status of the perpetrator was no bar to charging the crime of conscription. With this in mind, the Trial Chamber in AFRC recognized that an orthodox interpretation of conscription would render its penalization futile. Instead, it found that the crime could be committed by members of non-state armed groups, a reading which was understood to preserve the effectiveness of the law of armed conflict.¹²⁴

5 Subsequent Practice and Evolutionary Interpretation

From the early 1990s, there has been growing recognition that treaties are not static documents and should assume a more “living” function.^125,126 Courts then began to devise interpretive aids that would do service to the evolving nature of treaties. One way was to refer to the subsequent practice of treaty signatories to inform the interpretation of the treaty.¹²⁷ This method is recognized in Article 31(3) of the VCLT. The VCLT, however, prescribes strict conditions for the successful invocation of Article 31(3)(b), requiring such practice to be directed at the application of the treaty and that such practice be accepted by other signatories.¹²⁸ The alternative is to accord changing meanings to reflect the changing times.¹²⁹ This is otherwise known as the evolutionary approach. Compared to treaties where evolutionary readings demand interpretive exertion and justification, customary law is the home ground for evolutionary approach.¹³⁰ Here, it is important to clarify that evolutionary readings do not always lead to progressive results. Evolutionary interpretation has a more neutral quality to it.¹³¹

The evolutionary approach has found immense currency in the IHL jurisprudence of international criminal tribunals.¹³² In fact, the International Military Tribunal was the first to encourage dynamic, evolving readings of IHL, given that is centrally dependent on contemporary military practice/abstentions.¹³³ The ICTY/ICRR jurisprudence on sexual crimes also leans towards the application of evolutionary interpretation. Although rape was expressly prohibited in the statutes of the ICTY and ICTR,¹³⁴ there was no internationally available definition for the crime until the ICTR’s Akayesu decision. Confronted by mounting evidence of rape against the Tutsi women, the ICTR examined various domestic and international definitions of the crime as well as the ways in which modes of committing sexual crimes had transformed over the years.¹³⁵ The Tribunal chose to reject an anatomical approach requiring penetration and endorsed a more gender-neutral, consent-based understanding that relies on the effect of the act on the victim.¹³⁶ In the Musema judgement that followed, the ICTR observed that such a definition was better equipped to “accommodate evolving norms of criminal justice” and was aligned with the contemporary trends in national practice.¹³⁷ This seems to clearly evoke the value and weight of the changing times. Similarly, in Kunarac, the ICTY referred to the evolving definition of slavery—mapping the gradual erosion of the notion of chattel slavery following the adoption of the 1926 Slavery Convention.¹³⁸

The ad hoc tribunals also engineered a sea change in the status requirement of war crimes, from not recognizing the victimhood of combatants to finding that civilian status is not a condition for proof of victimhood.¹³⁹ This evolution was grounded largely in contemporaneous practice.¹⁴⁰ This trend has trickled down to the SCSL and ICC too, with the latter recently finding that sexual crimes committed by members of armed forces against their own also qualify as war crimes.¹⁴¹ The Court’s reading was hailed by some scholars for its evolutionary victim-oriented approach.¹⁴² At the SCSL, national practice (legislative and judicial) was key to Justice Doherty’s finding in Taylor that forced marriages were recognized as prohibited under customary law.¹⁴³

6 Normativity and Politics of Interpretation

As much as interpretation is an exercise to add more meaning to the law, it is deeply embedded in concerns about reception and legitimacy. Perhaps anticipating this, Fish aptly refers to interpretation as a “game”.¹⁴⁴

Unlike domestic criminal courts, which enjoy a high degree of latitude, international criminal tribunals are heavily dependent on political and financial support of States. The tribunals that this chapter studies neatly cover the full extent of the spectrum of such dependence. The ad hoc tribunals, for instance, were fairly independent. Having been set up by a one-stop resolution of the UN Security Council, the ad hoc tribunals enjoyed a fair share of delegated responsibilities without having to regularly consult the Security Council members.¹⁴⁵ This allowed the tribunals the liberty to innovate and renovate IHL, without fear of reprisal. Sadly, future tribunals did not enjoy identical liberties. One could argue that the higher fetters on such tribunals were informed by the lessons learnt from the design of the ad hoc tribunals. The SCSL, for instance, was created by an agreement between the UN and the government of Sierra Leone.¹⁴⁶ The Court thrives on the cooperation and goodwill between Member States of the UN and the government of Sierra Leone.¹⁴⁷ The Court’s administrative and prosecutorial functions heavily rely on voluntary contributions by UN Member States. The Court has also been required to seek assistance from sister courts to find premises and detention facilities for its trials.¹⁴⁸ The ICC, as a treaty creature, is completely reliant on the support and compliance of State parties.¹⁴⁹ These modes of working play a crucial role in their choice of interpretive approaches and their proclivity towards interpretive conservatism.

Upon comparing the practices of the ad hoc tribunals, the ICC, and the SCSL, certain (inter-connected) patterns become visible. Firstly, it would not be incorrect to say that with greater external monetary dependence, the tendency to invoke the literal approach becomes higher. Perhaps this is because the personal and substantive jurisdictional scope is strictly circumscribed. More likely it is because such tribunals have much to lose if they overstay or overstep their mandate. This also explains why more dependent courts prefer abbreviated indictments¹⁵⁰ and invest more time in justifying why the literal approach is not appropriate.¹⁵¹

Secondly, and perhaps slightly contradictorily, the growing moral force of the prosecution of IHL violations has generated a higher willingness on the part of tribunals to move beyond the text. The ICC was rooted and operationalized in a climate seeped in the abhorrence surrounding IHL violations and the moral high ground of prosecution.¹⁵² The normative weight of the Prosecution case itself seems to have justified the recourse to the effectiveness of teleological approaches. As discussed above, in Katanga and Lubanga, the Prosecution failed to convincingly establish that the threshold for an NIAC had been met. The Court, in both cases, made an NIAC classification possible presumably only because the Prosecution case was seen as morally stronger.¹⁵³ The sheer strength of the normative case against child soldiering or perpetrating brutal sexual crimes on bush wives compelled the SCSL to find interpretive tools to make adjustments to the IHL framework.

Thirdly, the interpretive practices are deeply tied to the degree of fragmentation in the state of the art. The ad hoc tribunals came into being at a time when IHL and IHRL were considered to be separate silos. Theodor Meron’s famed 2000 article “The Humanization of Humanitarian Law” was among the first to invite attention to IHL’s gradual transition from interstate obligation to individual rights, a change orchestrated by the growing presence of IHRL.¹⁵⁴ Echoing McCormack and Mathews,¹⁵⁵ Meron observed that humanitarian concerns have been traditionally downplayed in IHL.¹⁵⁶ The “fear of proliferation, the need or lack of need for specific weapons, and the difficulty of effective defense” have occupied more primary roles.¹⁵⁷ The resounding support for self-contained regimes for tribunals made it difficult for the ad hoc tribunals to resist fragmentation of IHL/IHRL.¹⁵⁸ But soon enough, the ad hoc tribunals occupied a central role in the move to re-interpret IHL treaties using the lens of humanization, batting to centre it around the value of human dignity.¹⁵⁹ The convergence engineered by the ad hoc tribunals did not escape backlash, with States and military troops fearing that excessive humanization would trigger more resistance to compliance with IHL norms.¹⁶⁰ By the time the SCSL came into operation, there was a growing consensus that the gulf between IHL, IHRL, and individual criminal responsibility had to be diminished. The IHL regime governing child soldiering began to move away from “reciprocal restraints on warfare” to norms hoisted on IHRL instruments.¹⁶¹ This vested great liberty on newer tribunals to apply evolutionary and purposive readings.

Fourthly, the choice of interpretive approaches is motivated by the likelihood of compliance by other IHL stakeholders. Closing on the heels of the Nuremberg Tribunal, the ad hoc tribunals were imbued with a piercing sense of retribution and deterrence.¹⁶² The rationale of starting with “small fish” like Dusko Tadić itself was to create a formidable precedent of individual criminal responsibility.¹⁶³ However, the ad hoc tribunals had little luck with ensuring compliance with their judgements. On a more interpretive level, this could be because the tribunals struggled to reconcile their roles as rule interpreters and the limitations (legal and pragmatic) of ex post facto judgements on conduct during armed conflicts. This struggle had lasting ramifications since the tribunals were in operation at a time when the conflict was in progress. In the Gotovina judgement, for instance, the Trial Chamber found that all the “impact sites located more than 200 metres from a target deemed legitimate served as evidence of an unlawful artillery attack”. This finding—albeit constructed using expert evidence—was blind to the spontaneity of wartime decisions. Military commanders were quick to reject the Tribunal’s mechanical 200-metre standard. Gotovina was written off as a blind spot in the Tribunal’s jurisprudence.¹⁶⁴ After Gotovina, the tribunal came to appreciate the value of finding intersection points that are compatible with both IHL and ICL. Later jurisprudence emerging out of the Tribunals was more mindful of reception amongst and compliance by military leaders. The SCSL existed in a different climate—where the civil war had ended. Funded by external donors, the SCSL represented a moment of institution-building and signalling, in so far as it allowed the international community to stage an intervention to condemn child soldiering.¹⁶⁵ The SCSL was hesitant to make value judgements about wartime decisions. The Court’s consistent jurisprudence excluding child defendants from prosecutions¹⁶⁶ and its recognition of child soldiering and forced marriages as punishable crimes has brought much-needed clarity to members of the armed forces.¹⁶⁷ The Court’s decision to confine itself to a limited set of defendants has provided a useful “template” for other criminal tribunals to follow.¹⁶⁸

7 Conclusion

This chapter is a brief attempt to reflect on and deconstruct the interpretive practices of international criminal tribunals in relation to IHL norms. Typically, inquiries into interpretive practices reveal much about the future behaviours of judicial bodies and help stakeholders make informed decisions about the efficacy of such institutions more generally.¹⁶⁹ In an IHL setting though, interpretative exercises are a direct understudy into norm reception by the soldiers and victims embroiled in wartime situations. As one of the chief interpreters of IHL norms in a regime that is marked by the lack thereof, international criminal tribunals have gradually begun to factor in the more expressive aspects of their jurisdiction into their application of interpretive tools. Albeit not exhaustive, this chapter shows how the ad hoc tribunals, the SCSL, and the ICC applied conventional interpretive tools to add meaning to norms governing newer crimes. More importantly, the chapter shows how increasing financial dependence, the moral force of Prosecution narratives, the state of the art of IHL/IHRL, and the likelihood of compliance impact which interpretive tool is invoked and how it is applied. It is hoped that this study offers useful lessons for the tribunals that are being conceived now and that it eventually encourages more public conversations about norm robustness in IHL among actors on the ground.