Major breakthrough in International Humanitarian Law?

By João Pires

Argentine judge Silvia Alejandra Fernández de Gurmendi has over 20 years of experience in international and humanitarian Law. She’s represented Argentina in cases before the Inter-American Commission of Human Rights and the Inter-American Court of Justice.

Since January 2010, she’s been a judge in the International Criminal Court’s Pre-Trial division.

She’s also chaired the Working Group on Rules of Procedure and Evidence and the Working Group on the Crime of Aggression.

Last month Judge de Gurmendi attended a book launch on International Humanitarian Law – the rules of war.

The book, which deals with how this kind of law is being dealt with by courts – Applying International Humanitarian Law to Judicial and Quasi-Judicial Bodies: International and Domestic Aspects” edited by Solon Solomon, Derek Jinks and Jackson N. Maogoto – struck her, she said, because “we may well be before a judicial revolution in the application of international humanitarian law”.

She talked about how – during the negotiations to create the ICC – the states wanted to avoid too expansive a role for the court.

The negotiations in Rome during the summer of 1998 were partly based on the legal developments at the Yugoslav and Rwanda tribunals, which had been established earlier in the 1990s. When the negotiations for the ICC started in 1995, it was the year of the appeals decision in the Tadic case at the Yugoslav tribunal, which is viewed as “a small revolution in its own right, because it was the first time that a court ruled that in the eyes of the law, war crimes also exist in internal conflicts. This may sound very normal nowadays, but back then it was a major breakthrough in international law,” said the judge.

“In the negotiations, there were two opposing views”, she continued. Some wanted to stop any future judges at the ICC from applying international humanitarian law more and more expansively, while others wanted to see the process continue.

“The result of this tension is visible in the Rome Treaty”, said the judge. It represents “a monumental effort to codify customary international law” as applied by states, so that judges are seen to be only applying states’ laws.

“States law was selected, drafted and written in the treaty. That applied to the definition of crimes, to the definition of international principles of criminal law and to the court procedure”, said the judge.

But she pointed out that “this assimilation of internal laws and international armed conflict laws that was being provoked by the Tadic case was also accepted in the Rome Treaty, despite the fact that it was hardly perceived as customary international law at the time. However, by accepting it and including it in the Rome Treaty, it was consolidated as customary international law”.