International law is constantly evolving according to the creation of new conventions, treaties and state decisions that respond to ever-shifting current events. In the last few decades, however, there has been a clear trend toward the increased importance and applicability of public international law to states’ foreign policies as well as to the protection of individual rights. This trend can be seen in two contemporary examples that are at the forefront of the debate over public international law. One is the increased recognition of international humanitarian law (IHL) as it applies to state interventions in internal conflicts, such as military operations in Lebanon, Iraq and Afghanistan. The second is the field of international criminal law (ICL), which assigns individual criminal responsibility for international crimes, has grown significantly in recent years with the advent of the International Criminal Tribunals for the former Yugoslavia, Rwanda, and Sierra Leone and by the creation of the International Criminal Court. By these mechanisms, international law is becoming increasingly prominent as a factor in governing actions within states rather than restricting itself to interactions among them.
International Humanitarian Law
International humanitarian law (IHL) is the subset of public international law that governs the conduct of hostilities between states and aims to protect civilians and other noncombatants from abuse or harm. It includes the Four Geneva Conventions (often referred to as “the Laws of War”), the United Nations Charter and the Convention on the Prevention and Punishment of Genocide. These conventions each impose on states the obligation to behave in accordance with certain minimum standards and agreed universal norms in the treatment of soldiers and civilians in conflict.
While most IHL doctrine deals with conflicts between recognized states, Common Article 3 to the Geneva Conventions and its Additional Protocol II of 1977 directly address the need to treat civilians and other noncombatants humanely in cases of non-international conflict. (See Hamdan v. Rumsfeld, 548 U. S. (2006)). Common Article 3 provides that in any armed conflict, whether it occurs between government forces and one or more non state armed groups, or between armed groups fighting among themselves, no party may kill noncombatants, take them hostage or subject them to “outrages upon personal dignity, in particular humiliating and degrading treatment... or the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
International Criminal Law
The separate field of international criminal law (ICL) offers a distinct departure from the principle of state responsibility; under ICL, victims may themselves assert claims in appropriate forums against individuals in other states that have violated international law. ICL essentially began as part of the statutes of the war crimes tribunals established in Nuremberg and Tokyo to try individuals responsible for atrocities committed during the Second World War. More recently, the International Tribunals for the former Yugoslavia and for Rwanda were established by the United Nations to prosecute individuals responsible for the most serious international crimes committed during the conflicts in those countries. And most recently, the International Criminal Court assumed jurisdiction for adjudicating complaints against individuals responsible for the most serious forms of war crimes.
All of these tribunals apply international criminal law that includes Grave Breaches of the Geneva Conventions, Genocide, Aggression and Crimes against Humanity. But unlike other subjects of international law, these crimes concern the rights and accountability of individuals rather than the state. Most grave offences in international criminal law are recognized universally and depending on a court’s jurisdictional statute, can be prosecuted anywhere according to the same substantive and procedural norms. In fact, several states (most notably Belgium and Spain) have now recognized universal jurisdiction for violations of international criminal law that enable prosecutions of perpetrators who otherwise have no connection to the state in which they are tried.
Text provided by Scott Worden and Professor Paul Williams, Faculty of Law, American University