Judge Christopher Greenwood: The Law of War and how it has been applied

Before he became a judge, he was well known for authoring the controversial 2002 opinion to the British government on the legality of using force against Iraq.  However, his conclusion was that such action would depend on whether the British authorities reasonably believed there to be weapons of mass destruction in Iraq.

 

On 25 November 2014, he took part in a book launch in The Hague “Applying International Humanitarian Law in Judicial and Quasi-judicial Bodies: International and Domestic Aspects“. 

 

The book editors – Derek Jinks, Jackson Nyamuua Maogoto and Solon Solomon – say that the last decade has witnessed a revolution in the way judicial bodies – international and domestic alike – are ready to tackle complex security aspects pertaining to the law of war.

 

Judge Greenwood spoke about what he saw as the International Court of Justice’s main contributions to International Humanitarian Law.

 

“Up until the 1990s, [there was a tendency] to assume that humanitarian law was what soldiers and their colleagues dealt with. It was a military lawyers’ matter. And the judicial aspect of it was incidental. That is largely a thing of past,” said Greenwood.

 

“17 years have passed since the Kosovo conflict.  Governments of today, taking the decision to use force, should always keep in mind the possibility of judicial proceedings.

 

“Anyone writing today about International Humanitarian Law would make a serious mistake to ignore the contribution of judicial bodies in the development of that law.

 

“International Humanitarian Law was there. It did not require reaffirmation. However some scholars had argued that the law is no longer capable of dealing with modern conflict…It was argued that over the course of 30 years, modern conflict had become so different from the time the Geneva Conventions were concluded – [which was] only four years after the launch of the nuclear bombs on Hiroshima and Nagasaki.

 

“The International Court of Justice has demolished such theory in relation to nuclear warfare. In the nuclear weapons case, it made clear that nuclear warfare is subject to the principles of distinction, proportionality and measure of necessary suffering.

 

“The court also dealt with jus in bellum and jus ad bellum. The Nuclear Advisory Opinion made it clear that the argument for any use of nuclear weapons would necessarily entail the violation of the right to life: Article 6 of the International Convention on Civil and Political Rights.

 

“The non-derogation of the right to life, even in times of war, is one of the great achievements of the court.

 

“When talking about enforcement in International Humanitarian Law, we necessarily refer to jurisprudence of tribunals.

 

“One of the greatest achievements was to make clear that state responsibility and individual criminal responsibility are completely distinct.

 

“An individual cannot hide behind the responsibility of the state in order to evade individual criminal responsibility of his own actions.

 

“The opposite is also possible. The state cannot evade its responsibilities by hiding behind individual criminal responsibility.

 

“Due to all this reasons, the International Court of Justice jurisprudence has become a major facet in the development and implementation of International Humanitarian Law.”