From the battlefield to the courtroom (and back) The interplay between international humanitarian law and international criminal law

International humanitarian law (IHL) was created to work preventatively, on the battlefield; for its part, international criminal law (ICL) has been drafted for use in retrospect, in a courtroom-setting. This thesis considers the interplay between these two branches of public international law. While the clarification and development of IHL by international criminal courts and tribunals was very welcome, the manner in which it has been applied during international trials was not always correct and may also be critiqued. In addition, the application of IHL in retrospect, as part of the prosecution and adjudication of alleged war crimes or other international crimes, such as crimes against humanity, is challenging. The scope of application of IHL, for example, has been assessed through a criminal law ‘lens’, leading to a significant broadening of its scope. The resultant expansive application of IHL by international criminal courts and tribunals may have a negative impact on the protection of persons under IHL or other bodies of law. Similarly, rulings on questions related to the conduct of hostilities may impact the legal framework governing military operations in times of armed conflict, and thus affect members of the military or on indeed other persons working with IHL during conflicts. The present book critically analyses the case law of war crimes trials before the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the International Criminal Court (ICC) and finds that more attention must be paid to ensure that IHL is correctly applied. For the ICC, statutory changes are required to avoid war crime provisions being applied incorrectly, intentionally or not, and the law distorted to prevent impunity; otherwise, such distortions may result in a version of IHL that can no longer be applied preventatively on the battlefield. Of equal note is that those reading international criminal and humanitarian law judgments must be mindful of the scope and limitations of such rulings.