Implementing International Humanitarian Law: From the AD Hoc Tribunals to a Permanent International Criminal Court

By Yusuf Aksar | Go to book overview

4

War Crimes

Introduction

Despite the fact that there are many problems deriving from the different legal systems being used around the world, one of the main issues is the limitation of the substantive law (subject-matter jurisdiction) of the international criminal tribunals or courts. It is not enough to solve this problem, as the Secretary-General's Report did in relation to the ICTY Statute, by indicating that international criminal tribunals or courts should apply 'rules of international humanitarian law which are beyond any doubt part of customary law' 1 for the following reasons:

Firstly, rules governing armed conflicts are mainly regarded as regulating international armed conflicts and these rules have not been applied by a truly established international organisation until recent times when the ad hoc tribunals were established by the Security Council for the former Yugoslavia and for Rwanda, both of whose interpretation and application of the rules of international humanitarian law went beyond the intention of the body that created them. 2

Secondly, the nature of armed conflicts has changed from international to mainly internal or internationalised, and individual criminal responsibility for the crimes committed in the latter type of armed conflicts has been recognised and applied by the ad hoc tribunals. 3

Thirdly, although the nature of crimes remains the same, the manner of committing them, targeting civilians and civilian property, has changed remarkably since the Second World War and the adoption of the Geneva Convention of 1949 and of the Additional Protocols (I and II) thereto of

1. Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993) (hereinafter Secretary-General's Report), para. 34.

2. For examples, see infra notes 424-32 and accompanying text.

3. In particular, the establishment of the ICTR to deal with the Rwanda case which was an internal armed conflict in nature indicates the first and major step in terms of creating a turning point by way of enforcing individual criminal responsibility for violations of Article 3 common to the Geneva Conventions and of the Additional Protocol II (Art. 4 of the ICTR Statute) in the development of international humanitarian law. For the practice of the ad hoc tribunals and the regulation of the ICC Statute in this context, see infra, p. 182, The Practice of the Ad Hoc Tribunals and Their Contribution to International Humanitarian Law and Their Impact on the ICC.

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