Comparing international criminal tribunals’ interpretive approaches to international humanitarian law

Abstract

International humanitarian law (IHL) is conventionally described as a set of rules which seek to limit the effects of armed conflicts. These rules, invariably, rely on rule arbiters such as national and international courts. Much of IHL has therefore been made and unmade by international criminal tribunals, which are typically set up with the mandate of enforcing IHL norms. While the work of international criminal tribunals is rigorously documented, their short and fragmented lives have prevented comprehensive studies of their interpretive practices. Here, interpretation is understood as the argumentative praxis which gives fresh meanings to an existing norm. This chapter is an effort to systematically study the interpretive practices of international criminal tribunals vis-a-vis IHL norms: which approaches came to be adopted, what were the origins of these approaches, and what were the motivations behind their application. In so doing, this chapter reviews how interpretive approaches—stood alone and taken cumulatively—shaped the realities and politics of IHL.