Precedent as source of law

Precedent as source of law

Introduction;

Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries, particularly in England and other countries which are influenced by English Jurisprudence.

Salmond quoted in his book; “…..”;

“The great body of the common or unwritten law is almost entirely the product of decided cases, accumulated in an immense series of reports… orthodox legal theory, indeed, long professed to regard the common law as customary law, and judicial decisions as merely evidence of custom and of the law derived therefrom…but in practice, the common law in England has been created by the decisions of English Judges”.

These decisions given were given highest respects in society and later on followed as an examples or precedents. Neither Roman law, nor any other system allows any such place or respect to precedents, and in English system they considered both, i.e. as an evidence of law and as source of law which courts are bound to follow.

Meanings;

Black’s Law Dictionary;

An adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law.

Precedent as source of law;

There are some writers who are of the view that judicial precedents are not a source of law. But Keeton rejects this view and holds that a judicial precedent is a source of law. To quote him; “A judicial precedent is a judicial decision to which authority has in some measure been attached. It must be noted at once, however, that party because of high status which judges occupy in political and social organization and partly because of the importance of the issues which they decide, judicial decisions have at all times enjoyed high authority as indications of the law”.

Nature of precedent;

A precedent is purely constitutive in nature and in no degree abrogative. This means that a judicial decision can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of courts to follow the same.

PLD 2016 Peshawar114

“Legislation of law was the domain and prerogative of the Legislature… Function of the judiciary was not to legislate or question the wisdom of Legislature in making a particular law”.

2016 CLD Lahore 1

“Courts are not empowered to legislate, and their function is to interpret legislation…Right which has not been provided in statute by legislature cannot be incorporated by courts by adopting role of legislature”.

Authority of Precedent;

English system provides following reasons for binding authority of precedent;

1.      Justice is administered by a body of judges

2.      Judges are legal experts to lay down a rule of law

3.      Case once decided is presumed to be correct.

4.      Following a precedent induces confidence in the minds of the litigants.

5.      Due to precedents, administration of justice becomes even handed and fair.

6.      The law becomes known and fair and not liable to have varying interpretations or applications.

Classifications of precedents;

Precedents may be classified into following categories;

1.      Declaratory and original precedents

A declaratory precedent is one which is merely the application of an already existing rule of law; an original precedent is one which creates and applies a new rule. In the former case the rule is applied because it is already law; in the latter case it is law for the future because it is now applied.

Original precedents, however, though fewer in number, are greater in importance. For they alone develop the law; the others leave it as it was and their only use is to serve as good evidence of it for the future.

It must be understood, however, that a declaratory precedent is just as truly a source of law as is one belonging to the other class. Because the authority and legal validity of a precedent do not depend on whether it is, or is not, an accurate statement of previously existing law.

2.      Authoritative and persuasive precedents

These two differ in respect of the kind of influence which they exercise upon the future course of the administration of justice.

An authoritative precedent is one which judges must follow whether they approve of it or not. It is binding upon them and excludes their judicial discretion for the future. A persuasive precedent is one which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. It depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical.

3.      The Absolute and Conditional Authority of Precedents.

Authoritative precedents are of two kinds, for their authority is either absolute or conditional. In the former case the decision is absolutely binding and must be followed without question, however unreasonable or erroneous it may be considered to be. It has a legal claim to implicit and unquestioning obedience. Where, on the other hand, a precedent possesses merely conditional authority, the courts possess a certain limited power of disregarding it.

In all ordinary cases it is binding, but there is one special case in which its authority may be lawfully denied. It may be overruled or dissented from, when it is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interests of the sound administration of justice.

Circumstances attaching weight to precedents;

The circumstances which tend to increase the authority of precedents are;

1.      Unanimity of the court giving the decision.

2.      Affirmation or approval by the courts

3.      Eminence of the judge giving the decision

4.      Absence of criticism by the profession

5.      Learned arguments, consultations of judges.

Circumstances lessening the authority of precedents;

These may be summed up as follows;

1.      Failure to notice contrary decisions

2.      Being mislead by reliance on a case of no authority

3.      Absence of independent judgment

4.      Decision based on compromise

5.      Judgment without arguments

6.      Decision without reasoning

7.      Decision being doubted and criticized

8.      Result would be unjust and embarrassing  

Terms dealing with precedents;

Stare decisis;

2017 PTD 2029

Doctrine of "stare decisis" meant to abide by or adhere to decided cases and it was a doctrine under which a deliberate or solemn decision of court was made after argument on question of law fairly arising in the case and necessary to its determination, which became an authority or binding precedent in the same court or in other courts of equal or lower rank in subsequent cases where such point was again in controversy.

2012 YLR 2809

Stare decisis, means to stand by a decision and not to disturb the undisturbed.

Ratio decidendi;

2017 PTD 2029

Expression "ratio decidendi" was the ground or reason of a decision, the point in a case which determined the judgment… In a controversy raising a dispute inter parties, things adjudged were conclusion between parties both on questions of law and fact but as to what the Court decided generally was the "ratio decidendi " or "rule of law" for which the same was an authority

2007 PTD 181

Ratio decidendi of a case makes the decision a binding precedent for the future…

Ground of a decision is the material fact of the case, so that if a similar or comparable set of facts come before the Court again, and the new case is on "all fours" with an earlier case, the Court will follow and apply the decision given in the earlier case.

2006 PLC 656

Ratio decidendi is the reason or ground of a judicial decision; it is the ratio decidendi which makes a decision a precedent for future.

Obiter dicta;

2012 CLD 218

“According to Black’s Law Dictionary, obiter dicta means, words of an opinion, which are entirely unnecessary for the decision of the case and includes remarks made or opinion expressed in his decision by the way that is incidentally or collaterally and not directly upon the question before him or upon a point not necessarily involved in the determination of the case. It has been further provided that such expressions are not as precedents.”

As a source of law, obiter dicta have the force of persuasive precedents only. The judges are not bound to follow them. But according to the view of Supreme Court of Pakistan, obiter dicta of judgment of Supreme Court is binding in nature and have force of precedent. See 2005 YLR 388.

Further see; 2000 SCMR 814

For difference between Obiter dictum and ration decindendi  See PLD 2004 SC 600

International Humanitarian Law

Table of Contents

Introduction;. 2

Definition of International Humanitarian Law;. 2

History, Development and Sources of International Humanitarian Law;. 3

History;. 3

Henry Dunant and origin of ICRC;. 3

Sources of International Humanitarian Law;. 4

·        Four Geneva Conventions, 1949;. 4

·        Two Protocols, 1997;. 4

·        Other Treaties and Agreements;. 4

The scope of protection under International Humanitarian Law;. 4

·       The wounded and sick;. 4

·       Prisoners of war;. 5

·       Protection of civilians and occupation;. 5

The conduct and control of hostilities;. 5

International armed conflicts and internal armed conflicts;. 6

·       Tadic case;. 6

·       Common article 3;. 6

Implementation and enforcement of International Humanitarian Law;. 7

·       Protecting Power;. 7

·       International Fact-Finding Commissions;. 7

i.       Grave breaches;. 7

·       International Committee for Red Cross, (ICRC);. 8

·       Rules by ICRC;. 8

International Humanitarian Law

Introduction;

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict.

International humanitarian law is part of international law, which is the body of rules governing relations between States and it applies to armed conflicts and seeks to protect people who are not or are no longer taking part in the hostilities, and to restrict the methods and means of warfare employed.

In addition to regulating states, international law also seeks to regulate the conduct of hostilities. These principles cover, for example, the treatment of prisoners of war, civilians in occupied territory, sick and wounded personnel, prohibited methods of warfare and human rights in situations of conflict. This subject was originally termed the “laws of war” and then the “laws of armed conflict”. More recently, it has been called “international humanitarian law”.

Definition of International Humanitarian Law;

·         “International Humanitarian law, is the body of international rules which, in wartime, protect persons and objects affected or likely to be affected by the hostilities, and limit methods and means of warfare”.

·         It can also be defined as, “the principles and rules which set limitations to the use of violence during armed conflicts, in order to:

a)      Spare those persons ("civilians") not directly involved in hostilities

b)      Limit the effects of violence (even to "combatants") to the amount necessary for the purpose of war”.

·         Or generally it can be defined as;

“International Humanitarian Law applicable in armed conflicts” means international rules, established by treaty or custom, which are specifically intended to solve humanitarian problems that arise directly from international or non-international armed conflicts. For humanitarian reasons, these rules protect persons and property that are, or may be, affected by conflict by limiting conflicting parties’ rights to choose their methods and means of warfare. The expression “international humanitarian law applicable in armed conflict” is often abbreviated to International Humanitarian Law or Humanitarian Law. Though the military tends to prefer the expressions “Laws of Armed Conflicts” (LOAC) or “Laws of War”, these two expressions should be understood as synonymous with “IHL”.

History, Development and Sources of International Humanitarian Law;

History;

One can say that the laws of war are almost as old as war itself. Although scholars generally agree that the birth of modern IHL was in 1864, with the adoption of the First Geneva Convention, it is also clear that the rules contained in that Convention were not entirely new. In reality, a large amount of the First Geneva Convention was derived from existing international customary law which can be found in many different civilizations, throughout the world and throughout history.

For example “The Arts of the War”, written in 500 BC, the Chinese writer Sun Tzu, expressed the idea that wars must be limited to military necessity and the Code of Manu written in 200 BC, one finds rules relating to behaviour in combat.

Between the 16th and 18th centuries, in the Renaissance and Age of Reason, an interesting and humanitarian practice developed in Europe. Frequently, warriors met before the hostilities and decided on guidelines to be respected during the battle. And the first universal treaty on Humanitarian Law is the Geneva Convention of 1864.

Henry Dunant and origin of ICRC;

The conception of IHL can be traced to the Battle of Solferino, a terrible conflict between French and Austrian forces that took place in northern Italy in 1859. One witness of that carnage, a businessman from Geneva named Henry Dunant, was appalled not so much by the violence of that battle, but rather by the desperate and miserable situation of the wounded left on the battlefields. With the help of the local inhabitants, Dunant immediately decided to collect and care for the wounded.

Back in Geneva, Dunant published a short book in 1862, A Memory of Solferino, in which he vividly depicted the horrors of the battle. In his book, Dunant not only described the battle, but tried to suggest and publicize possible measures to improve the fate of war victims. In his book he launched two proposals;

a.       That an international treaty be adopted to recognize the immunity and neutrality of the medical personnel bringing aid to the wounded soldiers.

b.      That in all countries relief societies be formed to assist the wounded soldiers in wartime.

His book enjoyed enormous success throughout Europe. At that time, a private welfare association existed in Geneva: The Society for the Public Good. Its President, Gustave Moynier, was impressed by Dunant’s book and proposed to the members of the Society that they try to carry out Dunant’s proposals. This suggestion was accepted and five members of the Society, Mssrs. Dunant, Moynier, Dufour, Appia and Maunoir, created a special committee in 1863, the “International Standing Committee for Aid to Wounded Soldiers.” This committee would, 15 years later, become the International Committee of the Red Cross.

Sources of International Humanitarian Law;

International humanitarian law is primarily derived from a number of international conventions, some of these represent in whole or in part rules of customary international law, and are one of the most highly codified parts of international law.

The main treaties of International Humanitarian Law are;

·         Four Geneva Conventions, 1949;

1)      First convention protects military wounded and sick and medical personnel.

2)      Second convention protects military wounded and sick and medical personnel of armed forces at sea, as well as the shipwrecked.

3)      Third convention protects prisoners of war.

4)      Fourth convention protects civilians in enemy and occupied territories.

·         Two Protocols, 1997;

1)      First additional protocol deals with international armed conflicts.

2)      Second additional protocol deals with non-international armed conflicts.

Protocol III was adopted in 2005 and introduced a third emblem to the two previously recognized ones (the Red Cross and the Red Crescent) in the form of a red diamond.

·         Other Treaties and Agreements;

1)      The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols;

2)      The 1972 Biological Weapons Convention;

3)      The 1980 Conventional Weapons Convention and its five protocols;

4)      The 1993 Chemical Weapons Convention;

5)      the 1997 Ottawa Convention on anti-personnel mines;

The foundation of the Geneva Conventions systems the principle that persons not actively engaged in warfare should be treated humanely.

The scope of protection under International Humanitarian Law;

The rules of international humanitarian law seek to extend protection to a wide range of persons, but the basic distinction drawn has been between combatants and those who are not involved in actual hostilities.

·         The wounded and sick;

The First Geneva Convention concerns the Wounded and Sick on Land and emphasises that members of the armed forces and organised militias, including those accompanying them where duly authorised, ‘shall be respected and protected in all circumstances’. They are to be treated humanely by the party to the conflict into whose power they have fallen on a non-discriminatory basis and any attempts upon their lives or violence to their person is strictly prohibited. Torture or biological experimentation is forbidden, nor are such persons to be willfully left without medical assistance and care.

The Second Geneva Convention concerns the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea and is very similar to the First Convention.

·         Prisoners of war;

The Third Geneva Convention of 1949 is concerned with prisoners of war, and consists of a comprehensive code centered upon the requirement of humane treatment in all circumstances.

·         Protection of civilians and occupation;

The Fourth Geneva Convention is concerned with the protection of civilians in time of war. This Geneva Convention, is limited under article 4 to those persons, “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals”.

The Fourth Convention provides a highly developed set of rules for the protection of such civilians, including the right to respect for person, honour, convictions and religious practices and the prohibition of torture and other cruel, inhuman or degrading treatment, hostage-taking and reprisals. The wounded and sick are the object of particular protection and respect and there are various judicial guarantees as to due process.

The conduct and control of hostilities;

International law, in addition to seeking to protect victims of armed conflicts, also tries to constrain the conduct of military operations in a humanitarian fashion. And as far as the civilian population is concerned during hostilities, the basic rule is formulated in article 48 of Protocol I and that is, “that the parties to the conflict must at all times distinguish between such population and combatants and between civilian and military objectives and must direct their operations only against military objectives”.

Article 51 provides that the civilian population as such, as well as individual civilians, “shall not be the object of attack”. In Article 57 the conduct of military operations, ‘constant care shall be taken to spare the civilian population, civilians and civilian objects’.

The International Court in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (ICJ Reports, 1996,) summarised in the following authoritative way:

“The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following.

·         The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.

·         According to the second principle, it is prohibited to cause unnecessary suffering to combatants; it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, states do not have unlimited freedom of choice of means in the weapons they use”.

The Court emphasised that the fundamental rules flowing from these principles bound all states, whether or not they had ratified The Hague and Geneva Conventions, since they constituted ‘intransgressible principles of international customary law’.

International armed conflicts and internal armed conflicts;

The rules of international humanitarian law apply to armed conflicts. Accordingly, no formal declaration of war is required in order for the Conventions to apply. The concept of ‘armed conflict’ is not defined in the Conventions or Protocols, although it has been noted that ‘an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups within a state’, but as an intra-state matters traditionally fell within the domestic jurisdiction of states and were thus in principle impervious to international legal regulations.

·         Tadic case;

The notion of an armed conflict itself was raised before the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in its decision on jurisdictional issues in the Tadi´c case.  It was claimed that no armed conflict as such existed in the Former Yugoslavia with respect to the circumstances of the instant case since the concept of armed conflict covered only the precise time and place of actual hostilities and the events alleged before the Tribunal did not take place during hostilities.

The Appeals Chamber of the Tribunal correctly refused to accept a narrow geographical and temporal definition of armed conflicts, whether international or internal. It was stated that:

“International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place”.

·         Common article 3;

Although the 1949 Geneva Conventions were concerned with international armed conflicts, common article 3 did provide in cases of non-international armed conflicts occurring in the territory of one of the parties a series of minimum guarantees for protecting those not taking an active part in hostilities, including the sick and wounded.

Common article 3 lists the following as the minimum safeguards:

1. Persons taking no active part in hostilities to be treated humanely without any adverse distinction based on race, colour, religion or faith, sex, birth or wealth.

To this end the following are prohibited:

a) Violence to life and person, in particular murder, cruel treatment and torture;

b) Hostage-taking;

c) Outrages upon human dignity, in particular humiliating and degrading treatment;

d) The passing of sentences and the carrying out of executions in the absence of due process.

2. The wounded and the sick are to be cared for.

Common article 3 was developed by Protocol II, 1977, which applies by virtue of article 1 to all non-international armed conflicts which take place in the territory of a state party between its armed forces and dissident armed forces.

Implementation and enforcement of International Humanitarian Law;

Under Article 1 parties to the 1949 Geneva Conventions and to Protocol I, 1977, undertake to respect and to ensure respect for the instrument in question. And a variety of enforcement methods exist;

·         Protecting Power;

One of the means of implementation is the concept of the Protecting Power, appointed to look after the interests of nationals of one party to a conflict under the control of the other, whether as prisoners of war or occupied civilians. Sweden and Switzerland performed this role during the Second World War. But the drawback of this system is its dependence upon the consent of the parties involved.

·         International Fact-Finding Commissions;

Protocol I also provides for an International Fact-Finding Commission for competence to inquire into grave breaches of the Geneva Conventions and that Protocol or other serious violations.

                                                              i.      Grave breaches;

The Geneva Conventions, define the grave breaches of the conventions, and expressly stipulates that the states shall bring such persons guilty of grave breaches before Courts of Justice, regardless of their nationality. Such crimes are may include; genocide, war crimes, crime against humanity, aggression (going to be added, 2018 resolution passed).

Further the international community established international criminal tribunals for trial of such cases, e.g. (ICTR) Tribunal established in wake of genocide in Rawanda.   

·         International Committee for Red Cross, (ICRC);

A great deal of valuable work in the sphere of humanitarian law has been accomplished by the International Red Cross. This indispensable organisation consists of the International Committee of the Red Cross (ICRC), over 100 national Red Cross (or Red Crescent) societies with a League coordinating their activities, and conferences of all these elements every four years. The ICRC is the most active body and has a wide-range of functions to perform, including working for the application of the Geneva Conventions, and to ensure the implementation of humanitarian law.

·         Rules by ICRC;

The ICRC formulated the following principles as a guide to the relevant legal rules:

1)      Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and physical and moral integrity. They shall in all circumstances be protected and treated humanely without any adverse distinctions.

2)      It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.

3)      The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and mat´eriel. The emblem of the red cross (red crescent, red lion and sun) is the sign of such protection and must be respected.

4)      Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.

5)      Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

6)      Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.

7)      Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian populations as such nor civilian persons shall be the object for attack. Attacks shall be directed solely against military objectives.