Searching for Law While Seeking Justice: The Difficulties of Enforcing International Humanitarian Law in International Criminal Trials

Abstract

International criminal law finds itself at the confluence of public international law, international humanitarian law, human rights law and national criminal laws. Our understanding of the interrelationship between these sources of law has been hampered by the conventional wisdom that public international law doctrines applicable to disputes between states can be readily transposed to the international criminal prosecution of individuals.

A detailed analysis of selected decisions of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda demonstrates that these tribunals could not simply rely on classical sources of public international law to resolve difficult cases. Further, the experimental approach taken to recasting these sources of law in Article 21 of the Rome Statute of the International Criminal Court has not resolved fundamental tensions inherent in the international criminal law tradition.

Both at the modern ad hoc tribunals and in the Rome Statute, it is argued that difficult cases are decided based on a highly discretionary selection by judges between two competing norms. On one hand, there is the need to enhance humanitarian protection during armed conflict, an ideal embedded in international humanitarian law and particularly the Martens Clause. On the other hand, there is the aim of maximizing fairness to the accused, an ideal enshrined in the growing body of international human rights law and codified in Article 21(3) of the Rome Statute. This article seeks to illuminate these fundamental tensions within the international criminal law jurisprudence at a foundational moment when the ICC begins hearing its first set of cases.