The development of the law of armed conflict by International Criminal Tribunals

This chapter demonstrates how judicial decisions of international courts and tribunals have shaped international humanitarian law. Judicial decisions, specifically those of the ICTY and ICTR, have facilitated clearer comprehension of the law of non-international armed conflict. The discussion celebrates positive developments such as Tadic (ICTY), which defined "non-international armed conflict," and Akayesu (ICTR), where "rape" is defined. However, this contribution cautions against judicial activism when interpreting war crimes because the resultant confusion frustrates those who deploy international humanitarian law during armed conflict. The International Criminal Court's Ntaganda decision illustrates the delicate balance sustaining the relationship between international humanitarian law and international criminal law and is a reminder of the importance of the principle that war crimes vest in prohibitive rules under international humanitarian law. International humanitarian law is the starting point in interpretation, and a reversal of the correct order results in a dilution of international humanitarian law rules.