Humanitarian Soft Law in Light of the Practice of International Criminal Courts

How to cite this article / Come citare questo articolo

Afandak, K., & Alizadeh, S. (2026). Humanitarian Soft Law in Light of the Practice of International Criminal Courts. Aequitas Magazine, 2, 21–30. https://doi.org/10.5281/zenodo.18390801

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ABSTRACT (EN): The global pace of events and decision-making rapidly accelerated after the Industrial Revolution, especially with the onset of the Information Age and new technologies. Simultaneously, the tragic events of the world wars in the first half of the 20th century amplified the international concern for the legal protection of human beings during wars and armed conflicts. In handling cases, international criminal courts (ICCs) found that the existing strict norms (hard law) lacked the necessary capacity to respond adequately to the needs of the subjects of International Humanitarian Law (IHL). The findings of this descriptive-analytical study, based on library resources, indicate that the practice (jurisprudence) of ICCs possesses a suitable capacity for creating international humanitarian norms. Given that the practice of these courts is not considered one of the traditional sources of law under Article 38 of the Statute of the International Court of Justice, these norms should be classified as international humanitarian soft law. Through a descriptive-analytical methodology, the study reconstructs the jurisprudential evolution from the first ad hoc tribunals (Nuremberg and Tokyo) to the ICTY/ICTR, hybrid courts, and the International Criminal Court (ICC). The study demonstrates that judicial practice, although not traditionally listed among the sources of international law under Article 38 of the ICJ Statute, plays a decisive role in shaping non-binding humanitarian norms. These norms emerge through: (i) the elevation of non-enforceable provisions to mandatory standards; (ii) the interpretive use of judicial decisions to clarify and expand the content of IHL; (iii) the consolidation of auxiliary principles capable of guiding judicial activity; and (iv) the creation of coherence and harmonization across different international criminal jurisdictions. Particular emphasis is placed on the ICC’s prosecutorial policies, which – by prioritizing crimes involving violations of fundamental rights, children, women, cultural heritage, and the environment – generate a practical hierarchy of international crimes.

ABSTRACT (IT): Il ritmo globale degli eventi e dei processi decisionali ha subito una rapida accelerazione dopo la Rivoluzione industriale, in particolare con l’avvento dell’era dell’informazione e delle nuove tecnologie. Parallelamente, i tragici eventi delle guerre mondiali, nella prima metà del XX secolo, hanno intensificato la preoccupazione della comunità internazionale per la tutela giuridica degli esseri umani durante le guerre e i conflitti armati. Nell’esame dei casi, le corti penali internazionali (ICC) hanno constatato che le norme vigenti di natura rigida (hard law) non possedevano la capacità necessaria per rispondere in modo adeguato alle esigenze dei destinatari del Diritto Internazionale Umanitario (DIU). I risultati di questo studio descrittivo-analitico, fondato su fonti bibliografiche, indicano che la prassi (giurisprudenza) delle corti penali internazionali presenta un’idonea capacità di generare norme umanitarie internazionali. Poiché la prassi di tali corti non è annoverata tra le fonti tradizionali del diritto ai sensi dell’articolo 38 dello Statuto della Corte Internazionale di Giustizia, tali norme devono essere classificate come soft law umanitario internazionale. Attraverso un approccio descrittivo-analitico, la ricerca ricostruisce l’evoluzione giurisprudenziale dai tribunali ad hoc di Norimberga e Tokyo, all’ICTY/ICTR, alle corti ibride e alla Corte penale internazionale (ICC), mostrando come la prassi giudiziaria, pur non rientrando tra le fonti formali del diritto internazionale ai sensi dell’art. 38 dello Statuto CIJ, contribuisca in modo determinante alla formazione di norme umanitarie non vincolanti. Tali norme si sviluppano mediante: (i) l’elevazione di disposizioni prive di enforcement a standard imperativi; (ii) l’uso interpretativo delle decisioni giudiziali per chiarire ed estendere il contenuto del DIU; (iii) la creazione di principi ausiliari idonei a guidare la prassi giudiziaria; e (iv) la costruzione di coerenza tra differenti giurisdizioni penali internazionali. Particolare attenzione è dedicata alle politiche dell’Ufficio del Procuratore della ICC, che – attribuendo priorità ai crimini lesivi dei diritti fondamentali, ai crimini contro minori, donne, patrimonio culturale e ambiente – generano una gerarchia sostanziale dei crimini internazionali.

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SUMMARY: 1. Introduction – 2. Conceptualization – 3. Evaluation of International Criminal Court Practice – 4. Conclusion.

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1. Introduction

The 20th century saw the formation of four ad hoc and temporary international criminal courts: the International Military Tribunals at Nuremberg and Tokyo (recognized as the First Generation) and the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) (recognized as the Second Generation).

In the 21st century, a new generation of criminal justice mechanisms emerged, known as Hybrid Courts, which were established to address crimes against humanity, genocide, and war crimes committed during internal armed conflicts. Parallel to these, the International Criminal Court (ICC) was established in the early 21st century as a permanent tribunal to prosecute the four core international crimes (war crimes, crimes against humanity, genocide, and the crime of aggression).

The accelerating pace of events globally, particularly with the advent of information technology, alongside the tragic events of the early 20th-century world wars, highlighted an international necessity for legal protection for humans during armed conflict.

The proceedings before ICCs revealed that the existing strict norms of IHL lacked sufficient capacity to meet the needs of its subjects. Numerous fundamental human rights violations occurring during armed conflicts, the appropriate conduct of international courts when trying those accused of such violations, and the very definitions and characteristics of the crimes within the courts’ jurisdiction all exposed substantial gaps in hard law.

Legal formalism required a response that was both consistent with the rapid pace of events and encompassed the fundamental rights of all parties involved. Based on the experience of prior generations of ICCs, it is evident that the practice of these courts has a strong capacity to create IHL norms. Since this judicial practice is not considered one of the traditional sources of law in Article 38 of the ICJ Statute, it must be regarded as falling within the domain of international humanitarian soft law.

Before proceeding, a clear definition of soft law and international humanitarian soft law is necessary to fully establish the role of ICCs in their creation and development.

2. Conceptualization

2.1. The Concept of Soft Law

The binding nature of the international legal system has been a subject of extensive debate since the formation of the League of Nations and the UN. The peremptory nature of international rules, particularly those related to human rights, is fundamental to regulating relations among subjects of international law and significantly impacts the foundational principles of the international legal order.

For decades, most jurists limited the sources of international law norms and rules to those explicitly mentioned in Article 38 of the ICJ Statute. However, over the past eighty years, significant developments have introduced new concepts to international law, including soft law.

Soft law norms are generally understood in contrast to hard law norms. Scholars define soft law using several elements:

• Being a behavioral rule.
• Emanating from sources lacking mandatory power.
• The explicit intent of the drafters to invoke these norms.
• Having practical effects.
• Possessing a special character.

Ultimately, international jurists consider a norm as soft law when subjects of international law adhere to it despite lacking a legal obligation.

On the international stage, various norms in diverse fields fall under the category of soft law. Some scholars suggest that soft law norms are found in documents characterized by their “softness”, such as resolutions, declarations, and comitas gentium agreements. Additionally, the decisions of the ICJ and ICCs, where the court acts to state a legal rule, are also recognized as examples of these soft documents. Soft law can thus be identified in practically all areas of international law.

Furthermore, soft law develops itself and influences hard law through three functions:

1. Interpretive Tool: Using soft law to interpret hard rules and norms (e.g., the practice of international courts interpreting hard IHL rules).
2. Reinforcement: Strengthening pre-established soft law by citing them in new documents or new judicial practice.
3. Transition: Aiding the transition to hard law through the creation of new customary rules.

2.2. The Concept of Humanitarian Soft Law

International Humanitarian Law (IHL) is a set of international rules designed to regulate the conduct of non-military personnel, the wounded, and combatants during armed conflict, aiming to limit the effects of such conflicts for humanitarian reasons.

A specific segment of IHL norms is humanitarian soft law. Various instances fall under this category, driven by principles like humanity and human dignity, the need for urgency, and the requirement for a rapid response to issues affected by rapid changes in industry, technology, and the environment. Examples of IHSL include international standards for the right to a fair trial for terror suspects, and the right to medical relief during disasters.

3. Evaluation of International Criminal Court Practice

As mentioned, the 20th century saw the establishment of the four ad hoc ICCs (Nuremberg, Tokyo, ICTY, and ICTR), followed by the creation of Hybrid Courts and the permanent ICC in the 21st century. This section will illustrate examples of humanitarian soft law norms developed through the practice of these courts.

3.1. First Generation Courts

The Treaty of Versailles in 1919 attempted to create a special tribunal for the trial of the German Emperor, Wilhelm II, but this court could not be established because the Netherlands refused to extradite him. Subsequent provisions in the Treaty (Articles 228-230) for the surrender and trial of perpetrators by Allied military tribunals also failed to materialize, leading the Allies to ultimately defer to a German court in Leipzig.

Learning from this failure, the Allies issued the Moscow Declaration of 1943, confirming their resolve to punish war criminals after their victory. The International Military Tribunal at Nuremberg was then established by the four victorious powers after the unconditional surrender and occupation of Germany. The Tribunal’s Charter was based on the absolute right of the victorious states to legislate for the occupied territories.

The Tribunal tried 24 major Nazi leaders, while the prosecution of lesser war criminals was delegated to national courts in the territories where the crimes occurred. The Allies also declared their intent to compel all countries of refuge to extradite those sought for prosecution.

Article 6 of the Nuremberg Charter established individual criminal responsibility for Crimes against Peace, War Crimes, and Crimes against Humanity. The Nuremberg Tribunal asserted its role in interpreting and applying the rules laid out in its Charter. In response to the objection that the trials violated the principle of legality (nullum crimen sine lege), the Court ruled:

• The limitation imposed by the principle of legality stems not from the necessities of sovereignty but from the demands of justice.
• Punishing aggressors is not unjust; rather, injustice would occur if their acts went unpunished.

The Court also rejected the Act of State doctrine by accepting the principle of individual criminal responsibility. It held that crimes against international law are committed by “men, not by abstract entities”, and enforcement of international law can only be achieved by punishing the individuals who commit these crimes.

Regarding War Crimes, the Court applied the rules of the 1929 Geneva Convention and the Hague Convention concerning the laws and customs of war, even though these instruments did not provide for criminal enforcement against individuals. For Crimes against Humanity, the term itself was novel at the time. Acts committed by Germans against their own nationals or against nationals of occupied/allied territories (which could not be War Crimes as the rules of war only applied between belligerent states) were deemed Crimes against Humanity.

The Tokyo Military Tribunal, established by the Commander-in-Chief of the United States in Japan, followed the same reasoning as Nuremberg in applying and interpreting its charter.

Despite criticisms that these tribunals represented “victor’s justice” and violated the principle of legality, the most important outcome was the subsequent support for the principles recognized by the Nuremberg Charter and its judgments. These principles were unanimously affirmed by the UN General Assembly in a 1946 resolution and subsequently codified by the International Law Commission in 1950.

The Nuremberg Principles include :

• Principle I: Individual responsibility and punishment for international crimes.
• Principle II: Lack of a domestic law criminal status does not absolve the perpetrator of international criminal responsibility.
• Principle III: Head of state or government status does not exempt a person from international criminal responsibility.
• Principle IV: Acting under superior orders does not relieve international criminal responsibility, though it may mitigate punishment.
• Principle V: The right to a fair trial.
• Principle VI: Definition of international crimes (Crimes Against Peace, War Crimes, Crimes Against Humanity).
• Principle VII: Complicity in the commission of these crimes is itself an international crime.

The establishment of the principle of individual criminal responsibility marked a major turning point. It also initiated the process toward founding a permanent criminal court.

3.2. Second Generation Courts

The ICTY was established by the UN Security Council in 1993 following massive and widespread violations of IHL, including ethnic cleansing. Using its Chapter VII powers, the Council established the Tribunal to help restore and maintain peace. Similarly, the ICTR was established by the Security Council in 1994 in response to the genocide and other egregious violations of IHL in Rwanda.

The practice of the Second Generation tribunals introduced concepts that became crucial precursors to ICL.

• Substantive Law Developments:
  • In cases like Delalić and Furundžija, the ICTY provided precise definitions of crimes such as torture and specific war crimes. Although technically non-binding on third parties due to the principle of relativity of judgments, these special interpretations formed the basis for the framework of these crimes in the ICC Statute.
  • The ICTY emphasized the concept of state criminal responsibility for torture if the practice became an official policy of state agents.
  • The ICTY also addressed the elevation of certain IHL norms within the hierarchy of norms. It affirmed that conventional and customary rules regarding torture hold a prominent status in international law, comparable to the prohibition of genocide and aggression, and that the prohibition of torture is a peremptory norm (jus cogens).
  • For the first time, the ICTY recognized the enslavement of persons as both a Crime Against Humanity and a violation of the laws and customs of war.
  • The impact of these judgments on the development of IHL and the drafting of the ICC Statute is undeniable. The European and American Courts of Human Rights also later confirmed the peremptory nature of the ban on torture and aligned their jurisprudence with that of the ICTY.
• Procedural Law Developments:
  • Special jurisprudence was not limited to existing norms and their interpretation. The practice of the ICTY and ICTR in the realm of procedural law made significant advances.
  • This included the provision for a Victims and Witnesses Unit to protect and support them during proceedings. The Tadić case necessitated balancing the right to a fair trial with the need for witness protection (e.g., non-public hearings, use of pseudonyms, voice alteration). This experience led the ICC Statute to mandate that the Court strike a balance between these two goals.
  • The establishment of these tribunals as a form of transitional justice by the Security Council meant that this power was retained in the ICC Statute, allowing the Council to intervene where states have not accepted the Statute. The rejection of immunity for heads of state/government in the ICTY and ICTR for committed crimes established a precedent that leaders’ immunities are no longer an absolute obstacle to prosecution.

3.3. Third Generation Courts

The Third Generation of ICCs, also known as Hybrid or Internationalized Courts, emerged in the late 1990s. These tribunals represent a combination of the judicial jurisdiction of the host state and international bodies, established through bilateral agreements between the UN and the state where the crime occurred. Their rules blend national and international law, deriving their legitimacy from both systems. Examples include the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon.

• The Specificity of Soft Law: These courts operate in an environment where the general principles of ICL and criminal justice were already established and strengthened by the first and second generations. Consequently, the task of the Third Generation was to form and reinforce specific and detailed rules and jurisprudence.
• The application of domestic law (which is usually the product of a hierarchical structure between the ruler and the ruled) in these courts allows them to use the mechanisms of internal law to develop specific and detailed rules through their practice, thereby enriching ICL literature. These specific rules are effectively the development of existing general principles where clear agreement or foresight of all scenarios was absent in international instruments.
• Example: Hearsay Evidence and Co-accused as Witness: The challenge of admitting an accused’s out-of-court statements (hearsay evidence) arose in the ICTR (Akayesu case) and the East Timor Special Panels. While the principle of admissibility was generally accepted, disagreement among judges about reliability prevented a unified, binding rule from forming. Similarly, the issue of calling a co-accused as a witness was addressed in the East Timor Special Panels (Ena case), where the court ultimately ruled against the defense’s request, prioritizing the preservation of the accused’s right not to be compelled to testify . This practice, though non-binding, contributes to the soft law literature on criminal procedure.

3.4. The International Criminal Court (ICC)

The establishment of the ICC represents a major and unique achievement, perhaps the greatest UN accomplishment since its Charter in 1945 . By consenting to the ICC’s criminal jurisdiction over individuals within their absolute control, states moved away from the classical concept of sovereignty. The ICC Statute has significantly contributed to the development of IHL by providing detailed definitions of War Crimes, consolidating various titles that were previously scattered across different instruments.

The judicial practice of the ICC (like its Statute) has further developed IHL in various aspects, leading to the creation of non-binding practices and new approaches in the literature of IHL and ICL .

• Hierarchy of Crimes (Soft Law): A crucial issue in ICL is the hierarchy or relative importance of international crimes. Since fundamental human rights and IHL have a peremptory status (jus cogens), crimes violating them are considered more important than others. International responsibility resulting from the violation of jus cogens rules of general international law also entails more severe consequences.

The ICC’s practice in case selection and prioritization is a key soft law source for defining a hierarchy of international crimes. Due to major constraints (budgetary issues, lack of state cooperation, victim situation, crime severity), the ICC cannot pursue all cases and must prioritize.

The OTP evaluates and selects cases based on legal criteria in the Statute, applying its general principles (impartiality, independence, realism) and primary criteria (jurisdiction, admissibility, interests of the international community, and justice). Crucially, the secondary criteria (gravity of the crime, level of responsibility, and charges against the accused) are not explicitly detailed in the Statute.

The OTP has therefore adopted a specific practical approach for applying these secondary criteria. In this practice, crimes violating fundamental human rights and IHL are prioritized.

Based on this ICC practice, a hierarchy of crimes has emerged in IHL literature:

1. Crimes resulting from the violation of fundamental human rights and IHL.
2. Crimes against children (the OTP has a specific policy document for crimes against children).
3. Crimes against women and sexual/gender-based crimes (the OTP has a similar policy).
4. Crimes against cultural and historical sites.
5. Crimes against the environment.

This classification is not explicitly stated in any binding document and is therefore non-binding outside the ICC mechanism. However, for this ICC practice to enter the realm of positive international law (hard law), it requires repetition.

4. Conclusion

Soft law functions to develop itself and influence hard law through three mechanisms: as an interpretive tool for hard rules, strengthening pre-established soft law, and aiding the transition to hard law by forming new customary rules.

The practice of the Nuremberg Tribunal, the first-generation court, demonstrated this by rejecting the Act of State doctrine and establishing the principle of individual criminal responsibility through an interpretation that elevated the non-enforceable rules of the 1929 Geneva and Hague Conventions into mandatory, non-derogable rules subject to criminal sanctions. The subsequent alignment of the Tokyo Tribunal and the eventual codification of the Nuremberg Principles by the UN completed this process, ultimately initiating the move toward a permanent criminal court.

Second Generation courts (ICTY/ICTR) developed concepts that became crucial precedents for ICL. Their interpretations, though technically non-binding on third parties, became the basis for defining crimes in the ICC Statute. They also precisely defined crimes absent in hard law. Most notably, the ICTY elevated the prohibition of torture to the status of a peremptory norm (jus cogens), emphasizing the victim’s right to redress and the perpetrator’s criminal responsibility. The procedural developments, such as the establishment of the Victims and Witnesses Unit, were also significant.

Third Generation courts (Hybrid Courts), operating where general ICL principles were already established, focused on developing specific, detailed rules. By applying domestic law alongside international norms, they generated case-specific rulings that enrich ICL literature where international instruments were silent.

Finally, the ICC’s practice, particularly the OTP’s prioritization criteria, created a hierarchy of international crimes (placing crimes against fundamental rights, then children, then women, at the highest levels). This hierarchy, though non-binding outside the Court’s mechanism, requires repetition to solidify into a legal rule.

In conclusion, the development of international humanitarian soft law through the practice of ICCs is clearly visible, centered on the mechanisms of elevating ordinary norms to mandatory rules, providing an interpretive tool, offering auxiliary resources for extracting IHL norms, guiding judicial practice, and creating coherence among tribunals.

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Khalil Afanfak, Salar Alizadeh