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III. Political Motives in Fighting a War Are Irrelevant Under International Humanitarian Law, Including for the Purposes of Mitigation in Sentencing

To accept as mitigation that the perpetrators were on the “right” side of the conflict defies a well-settled principle of international humanitarian law that all parties to a conflict are bound by and must be treated equally under the law. In addition, the decision undercuts international humanitarian law’s fundamental purpose: the protection of all people not taking part in fighting.

International criminal tribunals have broad discretion in reaching their sentencing decisions, including in determining the appropriate mitigating considerations and their application to individual cases. However, this broad discretion is not without limits. Mitigating a perpetrator's sentence based on factors that are inconsistent with respect for and enforcement of international humanitarian law, the purposes of sentencing and mitigation, and the mandate of the court cannot be a valid exercise of discretion, however broad. ¹⁶

International law regulates two separate aspects of the conduct of armed conflicts. Jus ad bellum (“justice to war”) regulates the justifiable reasons for engaging in armed conflict. Jus in bello (“justice in war”) or international humanitarian lawregulates the conduct of hostilities once armed conflict has begun. These are two fundamentally distinct obligations.¹⁷ Indeed, commentators explain that:

The fact that a state has a right and necessity to use force has not . . . been accepted as an excuse for a failure to comply with the obligations of international humanitarian law.¹⁸

Similarly put:

Whatever may be the cause of a war that has broken out, and whether or not the cause be a so-called just cause, the same rules of International Law are valid as to what must not be done . . . . The rules of International Law apply to war from whatever cause it originates.¹⁹

Any other proposition defeats limits on the measures that can be employed during such conflicts.

The Geneva Conventions of August 12, 1949 confirm the requirement that international humanitarian law applies equally to all parties. The preamble to Protocol I to the Geneva Conventions relating to victims of international armed conflicts expressly excludes consideration of “causes” of the parties:

[T]he Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflicts.²⁰

In its authoritative Commentary to Protocol I, the International Committee of the Red Cross explains:

The fact of being the aggressor or the victim of aggression, of espousing a just or an unjust cause, does not absolve anyone from his obligations nor deprive anyone of the guarantees laid down by humanitarian law, even though it may be relevant and have an effect in other fields of international law.²¹

Protocol II to the Geneva Conventions relating to the protection of victims of non-international armed conflicts further confirms that the obligations of international humanitarian law apply not only in international conflicts, but also to non-international conflicts.²² Indeed, Protocol II is applicable to all belligerent parties, regardless of the political motive for their fight:

These rules grant the same rights and impose the same duties on both the established government and the insurgent party, and all such rights and duties have a purely humanitarian character.²³

Just as political motive cannot be a defense to crimes against international humanitarian law, it cannot be available for mitigation in sentencing for such crimes. At the basis of international humanitarian law’s rejection of political motivation as a defense for crimes is the “principle of humanity [which] insists on respect for the victims of war in all circumstances, irrespective of the side to which they belong.”²⁴ Allowing mitigation of a sentence because the aggressor was on “the right side” of a conflict flies in the face of this basic principle and provides substantially the identical harms envisaged from permitting the defense of necessity and “just motives,” or justification for criminal acts. The atrocities for which the perpetrators were found guilty cannot be more “just” for having been committed in the name of democracy.

As the Special Court itself stated in Prosecutor v. Brima, Kamara & Kanu, “sentencing is intended to convey the message that globally accepted laws and rules have to be obeyed by everybody.”²⁵ As such, globally accepted laws and rules cannot apply less strictly to armed forces deemed to be fighting in support of democracy.

The issue of whether political justification should be a mitigating factor in sentencing is parallel to the defense of “necessity,” raised to justify why the perpetrators committed their crimes. However, the Special Court in this context has been clear:

[V]alidating the defence of Necessity in International Criminal Law would create a justification for what offenders may term and plead as a ‘just cause’ or a ‘just war’ even though serious violations of International Humanitarian Law would have been committed. This, we observe, would negate the resolve and determination of the International Community to combat these crimes which have the common characteristics of being heinous, gruesome or degrading of innocent victims or of the civilian population that it intends to protect.²⁶

This argument applies equally to the role of “necessity” or “political justification” in the determination of sentence.