International Humanitarian Law: An Overview
Crimes of War | Wednesday, Nov 28, 2007
Justice may be many things at the Yugoslavia War Crimes Tribunal in The Hague, but one thing it decidedly is not is swift. At times the pace of the proceedings in the court's main hearing chamber—a gleaming, lightfilled, technologically almost-futuristic cubicle encapsulated behind a wall of bulletproof glass—can seem positively Dickensian. The proceedings tend to lurch forward and then become bogged down in a thicket of minute-seeming legalistic distinctions, and there are mornings when even the most attentive mind can wander.
One such morning several years back, near the outset of the whole exercise, I found my own attention wandering into a book of history I'd brought along just in case- though of Holland, a s it happened, not of Yugoslavia. I was reading about the earliest stages of human habitation of the Netherlands in the lowland marshes and swampfields north of the Rhine River delta, terrain much of whose elevation is pitched so low that it was regularly subject to catastrophic flooding. It was not all that surprising, therefore, to learn that through many centuries this muddy flood plain went largely un inhabited and that it wasn't until around the year 800 that the first tentative forays at serious colonization were undertaken as tiny communities pitched precarious clusters of hovels atop artificially piled mounds, known as terps.
With the passing generations, some of these terps were in turn joined together by painstakingly raised landbridges, which served both as connecting paths and as protective dikes. Any given triangle, say, of such dikes, joining together three outlying terps, incidentally proved capable of shielding the terrain it enclosed from outside flooding, but that only led to a new problem: what to do with all the rain and groundwater trapped and festering within the enclosure. Initial attempts at draining these patches of pestilential marshland, the so-called polders, have been documented as early as 1150, but the real breakthrough came with the introduction of windmills in the fifteenth and especially the sixteenth centuries. Eventually "gangs” of dozens of coordinated windmills were being deployed, each in turn raising the stagnant marshwaters a few inches up and over the dikes and into a surrounding network of irrigation and navigation canals. Polder after polder was thus reclaimed- hundreds, thousands, and presently hundreds of thousands of acres of uncommonly fertile land in a process that continues to this day.
Half-listening to the drone of the ongoing trial, I suddenly realized how in a sense the judges and prosecutors and investigators there in The Hague had set themselves a remarkably similar sort of reclamatory challenge. The tribunal's founding president and chief judge, the Italian Antonio Cassese; its founding prosecutor, the South African Richard Goldstone; and his successors, the Canadian Louise Arbour and the Swiss Carla del Ponte, have all repeatedly cast their work in terms of an attempt to stem the historic cycle of floodtides of ethnic bloodletting that recurrently afflict places like the former Yugoslavia, or Rwanda, the other principal locus of the tribunal's mandate. In both places, these jurists have repeatedly insisted, the propensity for ethnic mayhem is far from endemic or inevitable. "For the great majority of their histories," as Justice Goldstone insisted early on. "the Croats and Serbs and Muslims, and the Tutsis and the Hutus, have lived in relative peace with one another, and they were all doing so relatively nicely until just recently. Such interethnic violence usually gets stoked by specific individuals intent on immediate political or material advantage, who then call forth the legacies of earlier and previously unaddressed grievances... It is they, not the group as a whole, who need to be held to account through a fair and meticulously detailed presentation of the evidence, precisely so that the next time around no one will be able to claim that all Serbs did this, or all Croats or all Hutus – so that people will be able to see how it is specific individuals in their communities who are continually endeavoring to manipulate them in that fashion. I really believe that is the only way the cycle can be broken."
In this context, it occurred to me that each of these individual prosecutions was like a single mound, a terp cast out upon the moral swampland of the war's aftermath-and the entire tribunal enterprise a system of interconnected dikes and sluices and pumps and windmills and canals designed to reclaim for each of the regions the possibility of a fertile regeneration.
But the tribunals weren't merely attempting to reclaim such a possibility for Yugoslavia and Rwanda alone. Sitting there in the spectators tribunal, I recalled that old jurists' saw to the effect that if international law exists at the vanishing point of law, the law of war exists, even more emphatically, at the vanishing point of international law; and it occurred to me how there, on the infinite marshy borderland, these jurists and lawyers and investigators, and the diplomats who'd carved out the immediate occasion for their labors, and the human rights monitors and (yes) the journalists who'd painstakingly (and often at great risk) gathered up the initial shards and planks required for their effort, were all engaged-fact by fact, testimony by testimony, case by case-in the latest instance of a decades-long, at times maddeningly halting, vexed, and compromised effort to expand the territory of law itself.
I say "decades-long," but in fact people have been working this border terrain for centuries and indeed millennia. The marshland into which the cur rent pioneers have been inserting their tentative new foundations is hardly virgin territory, and they have continually been coming upon the waterlogged ruins of earlier efforts, bulwarks that seemed to hold for a time but then crumpled and are now having to be reconceived. We moderns pride our selves on our various treaties, conventions, proclamations, and protocols-as though we were the first ever to have conceived of such a daft and brilliant scheme (the placing, after all. of humane constraints upon the very practice of war!) - but centuries ago there were already entire systems in place (the product, in part, of carefully elaborated disputations by thinkers ranging from Augustine through Aquinas). Consider, for example, the remarkable sway of chivalry in medieval Europe (or, alternatively, of the various samurai codes in Tokugawa Japan): the way everything from the requirements for proper warning through behavior on the battlefield, treatment of noncombatants, the protection of prisoners, and the victor's responsibilities following his opponent's surrender were all meticulously stipulated, stipulations which in turn were often rigorously observed for fear of loss of knightly honor (a disgrace more scathing, in some instances, than defeat itself ). Of course, such codes had their limits. For one thing, in the case of chivalry, they tended to rely on fairly stylized face-to-face relations between combatants (as much a product of the imperatives of ransom as those of mercy) and hence failed to survive the introduction of munitions and artillery into the battlefield. Beyond that, they were tied to notions of Christian nobility and therefore tended to get jettisoned when the war-making involved non-Christian opponents, as in the unspeakably gruesome Crusades. And when Christendom itself began breaking up, with the onset of the Protestant Reformation, Christians took to treating each other as heathen heretics. The wars of religion that ravaged sixteenth- and seventeenth-century Europe were among the most harrowing and anarchic of all time, and much of the early theorizing behind what was to become the modern law of war (from Grotius through Montaigne and Rousseau) arose in the appalled shadow of such seemingly limitless mayhem.
The most recent campaign to plot and posit an international humanitarian legal order (a law, that is, of war, governing the interactions between combatant forces and between those forces and noncombatants during times of military conflict – as opposed to the doctrine of human rights more generally conceived, which is understood to apply to all people at all times) is generally thought to have gotten launched in the mid-nineteenth century, in part as a response to the exponential increase in the potential for mayhem occasioned by the convergence of mass conscription and technological progress. During the Crimean War of 1854, for example, eighty thousand members of the three hundred thousand in the Franco-British expeditionary force perished under conditions of horrendous disorder and distress. Five years later, in June 1859, when a huge Austrian army clashed with a Franco Italian force in the Battle of Solferino, close to forty thousand died within just a few days-with the majority, perhaps, expiring due to untreated wounds. A young Swiss businessman named Jean-Henri Dunant, happening upon the scene, was so "seized with horror and pity" that he dedicated the rest of h is life to addressing the appalling situation. He established the International Committee of the Red Cross in 1863 and then convened an international conference that culminated in the Geneva Convention of 1864 "for the amelioration of the conditions of the wounded in armies in the field." During those same years, in America, with the Civil War raging, though with a specific eye toward the requirements of the peace that would need to follow, President Abraham Lincoln authorized a New York professor, Francis Lieber, to prepare a draft of the rules of military engagement, especially as regards the treatment of prisoners of war; the Lieber Code, which Lincoln thereupon promulgated as binding on all Union forces, was to have a profound effect on subsequent such codifications.
International humanitarian law, as it was to develop over the next century, was determinedly agnostic on the question of the legality of war itself. Phrased differently, it assumed war as a given and strove to channel its excesses. For a long while, the principal tracks upon which this process occurred were associated with two cities- The Hague, where conferences in 1899 and 1907 tended to focus on the conduct of war (permissible weapons and the like); and Geneva, where further conventions, under the auspices of the League of Nations in 1925 and the International Committee of the Red Cross in 1929, 1949, and 1977, built on the work of the original1864 convention. These conferences often tended to address the toxic legacy of the immediately prior war. The 1925 Geneva Protocol, for example, prohibited the use of poisonous gases and biological weapons. The four Geneva Conventions of 1949 dealt, respectively, with the wounded and sick on land; the wounded, sick, and shipwrecked at sea; prisoners of war; and perhaps most significantly, the fate of civilian noncombatants. A 1954 convention in The Hague addressed the protection of cultural monuments. And two 1977 protocols to the 1949 Geneva Conventions, the fruit of a marathon three-year drafting session, among other things partially extended the terms of those earlier conventions on international conflicts to wars of national liberation and civil wars. The Nuremberg Tribunals of Nazi leaders (and to a lesser extent the Tokyo Trials of Japanese officials) staked out new territory with the development and promulgation of the notion of "crimes against humanity,” territory further consolidated in 1948 with the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.
The past century and a half, in short, has seen a remarkable project of constructive expansion out there on the infinite borderland. Indeed, the interconnecting bulwarks and dikes and bastions of international humanitarian law constitute one of the true wonders of our age - the astonishing and heartening achievement of generations of legal and diplomatic artisans. Their masterful monument has proven, at best, of only middling effective ness. The porous ramparts sag and leak, and seem subject to random collapse. Although the various conventions and codes project a magisterial all-inclusiveness, what they've most pointedly lacked, at least until recently, has been any effective means of enforcing their magisterial norms, and specifically of holding individuals criminally accountable, both to their victims and to the entire world community, for their violation. True, such individual prosecutions formed the core of the Nuremberg and Tokyo trials, but those prosecutions were arguably instances of victor's justice and in any case there weren't any other such trials for almost fifty years thereafter. There have been internal national human rights prosecutions following the collapse of dictatorships – Greece, Argentina, Ethiopia - and there have been cases where governments as such, though not individuals, have been ruled in violation of various human rights norms: Turkey, Honduras, Uruguay.
But the vast armature of international humanitarian law has stood largely mute, palsied in part by the fear of most national governing elites and in particular the successive leaderships of the five permanent Security Council members most in a position to invoke those norms-that the glare of such attention might one day be turned on their own actions. (In the United States this tenor of concern often took the form of the anxious assertion that "by that logic Henry Kissinger could have been held liable for the Christmas bombing of Hanoi"- as well he might have been.)
Against this backdrop, the sudden lurch forward with the establishment of the two ad hoc criminal tribunals on Yugoslavia and Rwanda during the mid-1990s came as virtually a fluke (notwithstanding the years and years of prior lobbying by committed human rights lawyers and activists for State accountability and a n end to individual impunity), their establishment arguably having primarily grown out of the panicky overreaction of the Security Council's permanent five, shamed at the spectacle of their own gaping failure to take any more consequent action to stop the carnage itself as it was happening. (At least this way they could be seen to be doing something.) No sooner had the tribunals been constituted than several of the permanent five, perhaps realizing the implications of their mistake, seemed to think better of the entire project. They filibustered the appointment of the permanent prosecutor for over a year and then imposed all sorts of procedural and budgetary constraints on the efficient operation of the Yugoslavia tribunal. In particular, for a long while, the international peace keeping forces on the ground were ordered to bend over backward to avoid even encountering, let alone arresting, the indicted war criminals plainly in their midst. And yet, somehow, the tribunals persisted, against enormous odds.
Perhaps most significantly, ad hoc though they were, they seemed to be steadily expanding the terrain of the possible along the borderland of international humanitarian legal practice. And meanwhile, to everyone's astonishment, the rudiments of a permanent International Criminal Court seemed to be taking shape, most notably in the summer of 1998 in Rome, where an international diplomatic conference eventually brokered a treaty calling for an establishment of a modest, admittedly compromised, though still surprisingly robust version of just such a tribunal. The United States, initially one of the fiercest rhetorical advocates of a permanent court, seemed to become spooked all over again by perceived threats to its own sovereignty and at least initially demurred, lurching from confounded paralysis to a last minute signing -on to the treaty under President Clinton, a signature that was then almost immediately repudiated under the new president, George W. Bush, whose administration redoubled its efforts to sabotage the fledgling court's development. Notwithstanding America's opposition, the new court gradually (indeed at times maddeningly haltingly) began to launch investigations (in the Democratic Republic of the Congo, northern Uganda, and Darfur) and to issue a first tentative stream of indictments. Meanwhile, other nationally based, though internationally supported, tribunals (for example in Sierra Leone, Cambodia, and East Timor) began to gather strength, and (somewhat more problematically, perhaps) the deposed and presently captured Saddam Hussein came to trial for his depredations in Baghdad. And in South America, as renewed democratic regimes began at last to step out from under the shadow of the military dictatorships that had preceded them, one after another they began to revisit the blanket amnesties those militaries, in taking their leave, had forced upon them, reopening old cases and even bringing some of the worst offenders to justice after all.
Suddenly, improbably, unlike anything anyone had seen in almost fifty years, there were all kinds of concrete activity taking place out there along the infinite borderland.
It is against that backdrop that a consortium of international journalists-many of them longtime frontline war correspondents-came up with the idea for the guide you hold in your hands. Although they'd witnessed and reported on many war crimes, as technically defined. over the years, they'd done so without any particular expectation that the perpetrators would ever be brought to justice. No, stronger than that: they'd done so in the near-certainty that the perpetrators, as usual, would get off scot-free, and that the regime of impunity would persist inviolate.
Suddenly, however, that sorry state of affairs seems to be changing. Suddenly, it's going to matter whether, say, there was or wasn't a machine gun emplacement nestled in the rafters of that hospital, or a cannon in its courtyard. It's going to matter whether armed troops were accompanying the column of refugees fleeing that collapsing enclave, or whether the defenders had raised a white flag and were attempting to surrender when they were shot. By virtue of their profession, war correspondents may well find themselves among the first outside witnesses on the scene at war crimes. As such, they're going to need to be informed witnesses, and the rest of us are going to have to become a far better informed and engaged public.
Hence this book, now entering its second edition, vastly updated to take in the advances and setbacks of the last seven years. The turn away from the received standards of international humanitarian law evident in the United States' armed confrontation with al-Qaeda, discussed elsewhere in this new edition, now stands in counterpoint to the gradual reclamatory project of international justice. It does not negate it.