Thinking with IHL in Contexts of Counterterrorism: The Case of Criminal Justice Systems in the Sahel

Building on the Sahel situation, the chapter argues that prosecutors and judges working on acts perpetrated in the framework of armed conflicts should be encouraged to use IHL-derived norms of their criminal code, and related IHL reasoning in addition to, or instead of the counter-terrorism arsenal of their criminal code. The first reason for this is that the evidentiary threshold is higher for IHL-derived crimes than for ordinary or counter-terrorism offences and appears to be essential to preserve domestic criminal law’s cornerstone principles. The way ordinary criminal law offences or new counter-terrorism specific offenses are interpreted in terrorist cases leads to the dilution of the elements of the crime and thus to the violation of the principle of individualization of sentences. This, the chapter argues, would not happen should the IHL framework fully coexist with the counter-terrorism (CT) apparatus, in which case it would at the very least promote a less pre-emptive prosecution culture. The second reason to prosecute on the basis of IHL-derived norms is to protect humanitarian actors, who otherwise face growing risks of prosecution when they operate in areas where terrorist armed groups are active. Indeed, the turn to pre-emptive criminal justice, the related extension of terrorism-related offences and dilution of the elements of the crime tend to criminalize all kinds of links and interactions with terrorist groups, without requiring the actual participation in, or intention to participate in a terrorist act. IHL also contains provisions which explicitly protect humanitarian and medical personnel and forbid their harassment, arrest and prosecution. This analysis might even make a case for having IHL-based prosecution prevail, and not just to encourage the coexistence of the IHL lens with the CT lens. The chapter ends with some indications of how reinvigorating the IHL framework and mode of reasoning can look like in practice, in a context where actors of the criminal justice system need to gain habitus in thinking about IHL norms, and more importantly IHL doctrinal debates.