Ten years after the creation of the International Criminal Tribunal for former Yugoslavia: evaluation of the impact of its jurisprudence on international humanitarian law
30-06-2003 Article, International Review of the Red Cross, No. 850, by Jean-François Quéguiner
During its ten years of existence, the International Criminal Tribunal for the former Yugoslavia has served not only as an enforcement mechanism for violations of international humanitarian law, but also as an authoritative source of interpretation of this branch of law. The author examines the Court's jurisprudence and assesses its impact on humanitarian law.
The initial uncertainties as to the eventual capacity of the International Criminal Tribunal for the Former Yugoslavia to accomplish its mandate can definitively be relegated to the archives of history and the creation of this Tribunal be heralded as a major step in the quest to develop mechanisms to implement international humanitarian law. But after ten years of existence, it appears that the role of the Tribunal cannot be limited to the mere enforcement of international humanitarian law: while exercising its repressive function, the Tribunal has been interpreting this complex area of law and - in so doing - has greatly contributed to a more progressive vision of international humanitarian law. The aim of this article is to briefly set out the more important contributions of this judicial hermeneutic reading of international humanitarian law.It is argued that the Tribunal contributed to international humanitarian law in three ways, which interact with each other: first, by affirming the customary nature of a certain number of principles; second, by reducing the substantive gap separating the rules applicable to int ernational versus non-international armed conflicts; and finally, by adapting international humanitarian law to modern realities through a liberal interpretation of certain relatively old provisions of humanitarian treaties.