The Future Application of IHL and ICL

Authored By: Teresa M. Dettloff

International Humanitarian Law (IHL) and International Criminal Law (ICL) have been extraordinarily successful in bringing to justice war criminals who have committed some of the worst atrocities in history, including the genocide in Rwanda, the civil war and genocide in the Former Yugoslavia, and the conflict in Sierra Leone and Lebanon, all of which still have active prosecutorial tribunals. Each of these conflicts has one thing in common—they were predominantly state to state  or intra-state conflicts, and the criminals indicted held positions of power within their respective governments, whether it be political or military positions.

While this has been a success for IHL and ICL, the international landscape has changed, and these bodies of law will have to as well to adapt and continue to be successful and relevant. The most important distinction between conflicts then and now are the parties. In the past conflicts have been between states or warring factions within a state, most conflicts and violations of IHL now occur in confrontations between states and non-state actors. ICL and IHL need to be applied to non-state actors.

For example, Al-Shabab has been wreaking havoc in Somalia, attacking a military base outside of Mogadishu last July. More recently, an individual in Nice, France drove through a crowd during Bastille Day celebrations. What was most alarming about this attack was that there was nothing patently illegal in the preparations; the perpetrator rented a lorry, and drove it himself through a crowd full of people, killing and injuring hundreds of people before shooting himself.

Who do we hold accountable in these attacks? Who could we bring before a tribunal?

ICL is now firmly establishing the principles of joint criminal enterprise (JCE) liability, but whether or not there are more conflicts where this will be applicable remains to be seen. The fascinating part about international law is the fact that the area is so grey; it is a constantly changing and developing area of the law. The issue, however, is that the landscape to which the law applies is rapidly changing as well, and developments in international law lag behind what’s happening out there in the world.

This is not to say that we should abandon international law; in fact, I would argue quite the opposite. International law is a fundamental body of law that not only creates a dialogue about issues between nation-states, but it has resulted in tangible successes. However, to continue to be successful, we need to develop principles of international law that also apply to non-state actors. How that is to be done remains to be seen, but if we continue to develop principles of international law within tribunals, adapting those principles to the changing landscape of the international community, I have no doubt that we can resolve the current issues through tribunals successfully, as we have with the ICTR and ICTY. But if the law can’t keep up with what’s going on out there, it may be years before IHL has an application to modern-day war criminals.