Enforcement is often touted as being the Achilles’ heel of the laws of war.1Heike Krieger, ‘The Role of National Courts in Applying International Humanitarian Law’ (2014) 57 German YB Int’l L 752 This is because States are reluctant to allow judicial scrutiny during times of armed conflict by either international or domestic courts.2Shane Darcy, ‘The Role of National Courts in Applying International Humanitarian Law’ (2014) 96 Int’l Rev Red Cross 1143 National courts have still dealt with many issues that arise in the course of an armed conflict, such as the detention of individuals during conduct operations, the targeting of individuals with drones, and the use of military courts.3Laurie R. Blank, ‘Understanding When and How Domestic Courts Apply IHL’ (2011) 44 Case W Res J Int’l L 205 As a result, they are important in implementing and enforcing international humanitarian law and have a key role in its overall development. At the same time, courts which refuse to apply IHL, apply it badly, or apply it in a limited manner fail to tackle new challenges in the law which can stymie its development and effectiveness.4ibid.
This month’s theme of IHL in practice explores the application of the law of armed conflict in Pakistan’s domestic courts as well as the use of legal means to pursue strategic objectives. It covers seminal decisions including the Sindh High Court judgment5EFU General Insurance v. Emirates Sky Cargo & Others in which an attack on Karachi airport was classed as having occurred during a non-international armed conflict as well as a Supreme Court judgment6District Bar Association, Rawalpindi and others v Federation of Pakistan, 2015 PLD 401 (SC) on the trial of civilians in military courts. There are also other cases by Pakistan’s courts which have not been explored in these articles including a Peshawar High Court’s decision on drone strikes which ruled that they were a violation of international law and Common Article 3 to the Geneva Conventions.7Foundation for Fundamental Rights v. Federation of Pakistan (2013) PLD SC. 94 The cases explored on the Diplomacy, Law, and Policy Forum were chosen for their legal complexity and nuance and have been dissected as per the international law applicable. There is also an article which discusses the use of lawfare as a legal means to achieve strategic ends, focusing on its use in the context of sanctions and trade incentives. The impact of such measures can affect the legitimacy of the law and its credibility in developing countries given its misuse in achieving these ends. IHL in practice, therefore, can be far less consistent or predictable than it seems on paper.
IHL and Enforcement
The Geneva Conventions themselves envisage a structure whereby the judicial enforcement of IHL would be undertaken universally and mainly by domestic courts.8Sharon Weill, ‘Building respect for IHL through national courts’ (2014) 96 Int’l Rev Red Cross 859 They oblige States to ‘enact any legislation necessary to provide effective penal sanctions for persons committing’ grave breaches.9See for instance, Article 146, Fourth Geneva Convention Weill states that there are preliminary conditions which are necessary for the effective application of IHL by domestic courts, namely; an independent and impartial judiciary, the application and enforcement of IHL rules by national judges, access to courts for IHL violations, and the equal and effective application of the law by the judiciary.10Weill (supra n.8) Additionally, an important aspect of IHL enforcement is ensuring that judges have the objective capacities and skills to apply the law correctly and this requires enhanced understanding and knowledge of the regime.11ibid. This is especially so when courts are deciding complex questions of IHL – such as whether a conflict exists, the type of conflict which exists, and key issues arising from the application of IHL as well as to what extent it applies to new types of conflict, weapons, and tactics.12Blank (supra n.3)
International criminal law has also developed since the Geneva Conventions were negotiated with international courts and tribunals prosecuting war crimes. However, the jurisdictional scope of these bodies is limited as the International Criminal Court only covers war crimes of a certain gravity, when committed by nationals of a State party or on its territory, and even then only when domestic bodies have been unwilling or unable to investigate or prosecute the conduct.13See Darcy (supra n.2) The creation of international criminal tribunals following the atrocities committed in the former Yugoslavia and Rwanda seem to have catalysed domestic war crimes prosecutions which have increased since the 1990s.14Amina Adanan, ‘Accountability for Violations of International Humanitarian Law in Domestic Courts: Can War Crimes Be Prosecuted in Ireland’ (2014) 9 Irish YB Int’l L 61 Furthermore, the principle of complementarity envisaged in the Rome Statute encourages States to establish and enforce a legislative framework through their courts to prosecute crimes to circumvent interference in their affairs by the ICC.15Gabriele Olivi, ‘The Role of National Courts in Prosecuting International Crimes: New Perspectives’ (2006) 18 Sri Lanka J Int’l L 83
Domestic Courts and the Application of IHL
It is necessary that domestic courts apply IHL, mainly because the executive possesses wide and far-reaching powers in times of war which can have a negative impact on innocent people if not subject to judicial oversight.16Weill (supra n.8) Moreover, it is also practically more expedient for national courts to hear such cases as evidence and witness testimony is easier to collect and proceedings in the country can be held quicker and in a more economical manner.17ibid. In addition, they are better received in their local societies as they are not seen as an external force ruling on what is a private matter.18ibid. On the other hand, often when a State is involved in an armed conflict, public opinion can be sensitive and overcome interests of justice and as a result the State does not place as much emphasis on the court independently applying IHL.19ibid. The courts as a result take a back seat to the executive, except for in the most egregious of cases where they may continue to exercise judicial control.20Darcy (supra n.2) This is also impacted by how strong civil society and a free press is in the State in question.21Weill (supra n.8) The State’s interests do not carry the same weight years after the conflict, however, when courts will usually enforce a more robust judicial review. Weill states that the “time interval and the public opinion that has meanwhile crystallized due to media, NGO and academic reports concerning IHL violations may have an impact on the courts’ willingness to exercise their authority.22ibid. Once the conflict becomes protracted, it becomes easier for a court to exercise its authority and to rule against the State – a situation that is barely imaginable during the initial stages of a fullscale military operation.”23ibid.
The key issue is the need to balance the court’s duty to protect individual rights with its limitations under the separation of powers doctrine.24Krieger (supra n.1) Deference to the latter usually means that courts will reduce their standards of scrutiny or even refuse to exercise any form of oversight over a matter related to foreign policy.25ibid. Courts have also used ‘avoidance techniques’ when they are reluctant to constrain their governments, particularly during the phase of active hostilities; these include using the notion of standing, justiciability, or political questions.26Osnat Grady Schwartz, ‘International Law and National Courts: Between Mutual Empowerment and Mutual Weakening’ (2015) 23 Cardozo J Int’l & Comp L 587 Different jurisdictions have, however, approached cases concerning IHL and military conduct differently which means that IHL’s domestic application is not predictable or consistent.27Darcy (supra n.2)
IHL Enforcement Across Jurisdictions
There are questions raised as a result as to whether national courts can effectively enforce IHL and the differences between how courts have addressed this varies across jurisdictions. For instance, in the United States, courts have often declined to adjudicate on these issues instead invoking the political question doctrine to defer to the executive.28Blank (supra n.3) This is with the exception of some seminal judgments such as Hamdan v. Rumsfeld29Hamdan v. Rumsfeld, 548 U.S. 557 (2006) where the Supreme Court held that Common Article 3 had been violated or Rasul v. Bush30Rasul v. Bush, 542 U.S. 466 (2004) where it was held that Guantanamo Bay detainees could petition federal courts for habeas corpus. Meanwhile, in Israel, courts have heard cases while military operations were taking place though have taken a very apologist stance towards the Israeli military often giving it the legal tools to legitimise its segregationist policies in the occupied Palestinian territory.31Blank (supra n.3)
Cases in courts in the United Kingdom have often been quite varied. In a Supreme Court case concerning whether positive obligations under the right to life applied to British soldiers in Iraq, the judges stated that a court should be “very slow indeed to question operational decisions made on the ground by commanders”.32Smith et al. v. Ministry of Defence, UKSC 41, 2013, paras 64-65. At the same time, the UK has also prosecuted its own citizens for grave breaches of the Geneva Conventions. Corporal Payne was convicted for the mistreatment of an Iraqi prisoner in Basra becoming “the first British soldier in history to be convicted of a war crime under international law”.33N. Rasiah, ‘The Court-martial of Corporal Payne and Others and the Future Landscape of International Criminal Justice’, 7 Journal of International Criminal Justice JICI) (2009) 177-199. Furthermore, while cases concerning the violation of individual rights are relatively easier to establish, those which address complex and indeterminate areas of IHL are far harder for domestic courts. For instance, in a case before the UK’s Court of Appeal, the judges were required to decide whether the scope of judicial review enabled them to quash an order by the government to the Royal Air Force to fly over Iraqi territory and attack targets in Iraq.34R. v. Secretary of State ex parte Thring (re. Royal Air Force air attacks on Iraq), Court of Appeal, 20 July 2000 The court refused and one of the judges stated, in discussing the principle of proportionality under Article 51(5)(b), Additional Protocol I, that this:
“would involve consideration of the policy and the nature of the operations of the armed services abroad, and particularly of the Royal Air Force. In my judgment, those are not matters which can be the subject of judicial review, because the courts are not equipped so to do. The fact that the courts are ill-equipped in these matters is graphically shown by the terms of para (5) of art 51 of the Geneva Convention…It would then be necessary for the court to have evidence about the ‘concrete and direct military advantage anticipated’; and, having had that, it would then be necessary for the court to exercise its judgment, as I read the paragraph, as to whether or not that advantage was excessive in relation to the incidental loss of civilian life, injury to civilians or damage to civilian objects, or a combination thereof. In my judgment, the resolution of such issues is not susceptible to judicial review.”35Ibid. Opinion of Justice Bennett
Therefore, where not concerned with the status of a person under IHL or the protections afforded, the courts are far less eager to involve themselves in issues concerning the application of indeterminate and complicated principles of the law. This can be seen through the European Court of Human Rights jurisprudence which has approached national security questions from a human-rights angle. This has resulted in much development on issues relating to the intersection of these regimes.36Blank (supra n.3) Even domestic courts which apply human rights law to armed conflicts rather than, or in addition to, IHL, have had more success often because human rights are included in the country’s constitutional law and therefore provides litigants with greater access to courts.37Weill (supra n.8) The application of human rights principles whether under IHRL or IHL is a much easier judgment call for the courts than principles such as that of proportionality which is unique to IHL.
A perennial issue with IHL is that of enforcement of its rules. Domestic courts have a primary role in ensuring compliance with the laws of war, however, it is a responsibility that they may sometimes relinquish, particularly when they defer too much to the executive branch in legitimising its illegal acts and policies. Those with the most to lose when the judiciary abdicates its role in scrutinising the executive are those requiring its protection in complex conflict situations, such as counterrorism operations.38Blank (supra n.3) Moreover, with indeterminate principles of IHL, such as proportionality, the court may also find itself incapable of adjudicating on such difficult, and often politically inclined, questions. Nevertheless, national courts participate in the choir of voices which contribute to the sources of international law as their judgments qualify as ‘subsidiary means’ under Article 38 of the ICJ Statute.39Schwartz (supra n.26) While the law has not been enforced in a consistent way across jurisdictions, the judicial enforcement of IHL through domestic courts remains an important aspect in ensuring IHL’s development.