What is the difference between IHL and ICL?

Bartels: ‘IHL stems from efforts that began in the 19^th century to protect both civilians and captured or injured combatants during times of war. IHL is intended to work preventively: it is a realistic set of rules that allows for fighting in wars, but seeks to restrict certain actions. Serious violations of these rules are what we call ‘war crimes’. But IHL was never drafted as a criminal code, it was not specific in the way a criminal code must be. For example, it talks about things like ‘excessive damage’, but without that being quantified, successful prosecution becomes exceptionally difficult. International criminal law (ICL), on the other hand, arguably came into existence with the setting up of the Nuremberg and Tokyo tribunals after WWII, and is designed to be applied retrospectively, in a courtroom. In addition to war crimes, ICL is also meant to address crimes against humanity and genocide (and the crime of aggression). When the international tribunals for the former Yugoslavia and Rwanda came into being in the 90s, IHL and ICL were for the first time applied together during international criminal trials. But the two strands became entangled with each other and, as a result of rulings by these tribunals, the scope of IHL in particular began to change.’

Why do IHL and ICL sometimes come into conflict with each other?

‘As an illustration: the guiding principle of IHL is the presumption of protection, so, for example, if you’re not sure if someone is a combatant, who as such can be attacked, you must assume they’re not. While in criminal law you have the presumption of innocence, meaning it must be assumed that someone who was fired upon was a legitimate target, unless the prosecution can prove otherwise. So, the presumption of protection and the presumption of innocence can sometimes clash in the courtroom.

‘Furthermore, IHL was initially created to work in the context of state-to-state warfare, and later for civil war-like non-international armed conflict, but was never meant to govern a situation like the one which occurred in Rwanda. The core principle of IHL is the distinction between those who may be targeted (combatants) and those who are protected (civilians, wounded or captured soldiers).

We’re talking about the gravest conduct imaginable, but because proving crimes against humanity or genocide is notoriously difficult, prosecutors frequently charge war crimes as well, as a fall back option. However, this means that they are trying to fit a body of law onto a situation that it wasn’t meant to be applicable to, which will inevitably lead to friction.’

How did this come about?

‘The international courts and tribunals were set up specifically to counter impunity. And naturally they wanted to have broad jurisdiction to be able to address the cases that came before them, which meant they wanted IHL to be applicable, because if it wasn’t you couldn’t have a war crime. This led to the legal threshold for what could be considered armed conflict being lowered, and to the scope of the protective articles of IHL being expanded. Many militaries around the world were upset by some rulings from the Yugoslav tribunal, believing they could make their jobs on the battlefield impossible. And at the same time, some nations realised that they could use this expanded scope to their advantage, seeking to justify the type of conduct which IHL was specifically drawn up to prevent. For example, the claims made by the US about being in an ongoing armed conflict with Al Qaeda, and how this allowed them to hold people indefinitely in Guantanamo Bay, or conduct targeted killings against persons supposedly affiliated with Al Qaeda in numerous places around the world.’

What can be done about this situation?

‘In my thesis, I make certain recommendations for amending the Rome Statute -  the foundational document of the ICC. Enhancing the clarity and scope of the Statute will limit the need to stretch IHL to fit to cases brought before the Court. In addition, I believe we should bring the scope of IHL back to what it was intended to be. We shouldn’t be using IHL for the prosecution of fighting between armed groups that at no point had the intention to fight within the limits of IHL. There are enough other ways to prosecute such cases now without charging war crimes, which there weren’t when IHL was initially created. If we don’t do this, we risk twisting IHL ever further away from its original purpose, and that risks more and more militaries beginning to ignore it, because following it has become unworkable even on conventional battlefields.’

‘I also make some suggestions for improving knowledge throughout the various institutions dealing with IHL / ICL, specifically the appointment of specialist staff, who can advise international judges on the applications of IHL, and contribute to a consistent application of it. I’d like to see us return to a point where we are really doing justice to the ideals underpinning the very foundations of IHL.’