Studying National Capacity to Interpret and Apply IHL: The Domestic Courts of Pakistan

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Introduction

Article 38 of the ICJ Statute, generally agreed upon as enumerating the sources of International Law, references judicial decisions of domestic courts as contributors to the formulation of International Law. Domestic judicial decisions are seen as contributors since domestic courts are organs of the state and their decisions constitute practice of the state with respect to a particular rule of customary international law.1Jean-Marie Henckaerts, ‘History and Sources’ in Ben Saul and Dapo Akande (eds), The Oxford Guide to International Humanitarian Law (OUP 2020) In addition, domestic judicial decisions also serve as a supplementary means for the determination of rules of law.2Ibid In the context of International Humanitarian Law, judicial decisions of domestic courts carry immense weight as the judicial enforcement of IHL ‘relies primarily on domestic courts.’3Sharon Weill, The Role of National Courts in Applying International Humanitarian Law (OUP 2014) Accordingly, ‘the enforcement of IHL by domestic courts remain one of the most important challenges for guaranteeing respect for IHL (and for international law more generally).’4Weill S, “Building Respect for IHL through National Courts” (2014) 96 International Review of the Red Cross 859

However, before a domestic court can effectively enforce IHL, ‘a question remains as to the level of the court’s knowledge of IHL and the objective capacities and skills of the judges with regard to this body of law.’5Ibid Given that effective enforcement of IHL necessarily requires correct and proper interpretation and application of IHL, the capacity of judges with respect to IHL is a factor that cannot be underplayed. Accordingly, an assessment of a domestic court’s capacity with respect to proper interpretation and application of IHL can best be made with reference to how the said court has classified a particular conflict, since the first step in the correct application of IHL is to classify the conflict.6Ibid

Studying National Capacity of the Domestic Courts within Pakistan

In this backdrop, a study of a domestic court decision (the Sindh High Court) from Pakistan was carried out wherein the court in that instance classified a situation of violence as a non-international armed conflict while applying principles of IHL specifically those relating to NIACs. However, in doing so, the court did not adequately apply certain crucial principles of IHL relating to classification of conflicts and resultantly, the decision left the door open to varying interpretations and questions.

The study first set out the relevant applicable principles of IHL with respect to classification of NIACs as derived from the sources of IHL such as Treaties, Custom along with the practice of international courts and tribunals when classifying conflicts and then ‘tested’ the Sindh High Court’s decision against these principles to determine whether the court’s application and interpretation of IHL was correct or not. The study also overviewed other domestic court decisions from Pakistan where the courts classified conflicts within Pakistan.

The Findings of the Study

The study primarily focused on a decision rendered by the Sindh High Court (a constitutional court in Pakistan) wherein it held that the Karachi Airport Attack on 8 June 2014 was a part of a preexisting ‘non-international armed conflict’ (“NIAC”) between Pakistan and various non-state armed groups since 2001.7EFU General Insurance Ltd., vs. M/s. Emirates Airline / Emirates Sky Cargo and others (Suit No.1847 of 2016) However, in arriving at the conclusion, the court omitted to apply and interpret various principles of IHL specifically those relating to establishing NIACs. Among the omissions, the study found that:

  • The court omitted to adequately establish the two-fold requirements of the NIAC it had established i.e. existence of an organized armed group & intensity of violence;
  • The court omitted to consider the geographical and temporal scope of the NIAC it had established;
  • The court omitted to establish nexus of the incident (the Karachi Airport Attack of 2014) with the NIAC it had established;

The study also noted that even previously, when the Supreme Court of Pakistan in the 21st Amendment Case8District Bar Association, Rawalpindi v. Federation of Pakistan (2015) PLD SC 401 also classified (at least implicitly) the violence within Pakistan as a NIAC, the court omitted to directly engage with and apply principles of IHL which would have been entirely relevant to the court’s decision – quite similar to how the Sindh High Court rendered its decision in EFU General Insurance.

Accordingly, this pattern of domestic courts within Pakistan omitting to correctly interpret and apply IHL leads to the conclusion that there is in fact a lack of capacity with respect to IHL within the domestic courts of Pakistan.

This is problematic for two independent reasons:

  1. The courts omissions do little to further the respect for IHL and resultantly, it’s effective enforcement within Pakistan; and
  2. The courts interpretations make it difficult to differentiate between armed conflicts and other situations of violence (e.g. law enforcement situations).

Firstly, respect for IHL comes in many forms, one of which is through the practice of domestic courts in addressing IHL-related cases9Ibid, n.4 and as discussed above, a reference point for assessing a domestic court’s capacity in addressing IHL-related cases is to see whether the court in question has properly classified a conflict to begin with. Only then can we expect ‘effective enforcement’ of IHL within domestic courts.

Consequently, the above-mentioned pattern exhibited by the domestic courts of Pakistan with respect to their improper interpretation and application of IHL raises doubts over the role of domestic courts as ‘effective enforcers of IHL’ within Pakistan.

Secondly, improperly classifying a conflict without due regard to the applicable principles of IHL raises concerns since the question whether or not a situation of violence amounts to an armed conflict under IHL carries important consequences as the former situation is governed primarily by international human rights law, which is more restrictive than international humanitarian law, in particular in relation to the use of force against individuals and the detention of individuals for security reasons.10‘Why Classify? The consequences of classification’,  RULAC <https://www.rulac.org/classification#collapse3accord>

This reason alone, places an immense responsibility upon domestic courts to correctly interpret and apply IHL in proceedings before them.

The Way Forward - Enhancing National Capacity of the Domestic Courts within Pakistan

In December 2019, the 33rd International Conference of the Red Cross and Red Crescent adopted a resolution entitled ‘Bringing IHL home: A road map for better national implementation of international humanitarian law’11Res. 33IC/19/R1, “Bringing IHL home: A road map for better national implementation of international humanitarian law”, 33rd International Conference of the Red Cross and Red Crescent, 9–12 December 2019 wherein, among other things, it was recognized that ‘better respect for IHL is needed to protect victims of armed conflict, and that implementing IHL at the domestic level is an essential step towards achieving this goal.’12International Review of the Red Cross, “Bringing IHL Home: Guidelines on the National Implementation of International Humanitarian Law”, January 2022 < https://international-review.icrc.org/articles/bringing-ihl-home-guidelines-on-national-implementation-of-ihl-915 >

Being mindful of the important role domestic courts play in the effective enforcement of IHL, the resolution ‘encourages States […] to take concrete, and […] coordinated activities […] to disseminate IHL effectively, paying particular attention to those called upon to implement or apply IHL, such as […] prosecutors and judges, while continuing to disseminate IHL at the domestic level as widely as possible to the general public…’13Ibid, n. 11

As the study has shown, there is a need to reinforce national capacity to interpret and apply IHL within Pakistan and this may be achieved through effective dissemination of IHL at the domestic court level so that there may be no irregularities in the interpretation and application of IHL and only then can the domestic courts within Pakistan truly be seen as ‘effective enforcers of IHL’ which further the respect for IHL in their decisions.

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Ahsan Qazi

Ahsan is a lawyer and international law consultant. He is the Director of Centre for Law, Justice & Policy (CLJP) established at Karachi, Pakistan. He also works as a consultant to the ICRC.

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