Crimes of War

September 21, 2001

APV Rogers, OBE
Author, Law on the Battlefield, Fellow, Lauterpacht Research Centre for International Law, University of Cambridge

There are a lot of legal grey areas here! I sincerely hope that those in charge will not act in anger but will proceed in a calm, calculated and clinical manner and in accordance with international law. States that claim to be civilized must uphold the rule of law.

Since the United Nations Charter requires UN member states to settle their international disputes by peaceful means, the tendency nowadays is not to use the term “war”in a legal sense. When politicians speak about a “war” against terrorism, they probably mean it in the sense of an all-out international fight or struggle against terrorism. The UN Charter does preserve states’ inherent right of individual or collective self-defense if an armed attack occurs (UN Charter, Article 51) and the UN Security Council has the power to take any action it deems necessary to maintain or restore international peace and security (under UN Charter, Chapter VII).

In either case, if military force is used, there must be compliance with the law of armed conflict. That is a substantial body of law, found in numerous international treaties--including the Geneva Conventions of 1949--which requires discrimination in targeting, the avoidance of collateral damage, and the protection and humane treatment of civilians and of the victims of armed conflict.

Given the sheer scale of the recent attack, which puts it on a completely different level from previous terrorist acts and despite the unusual “weapons”used, it can be argued that it amounts to an armed attack, giving rise to the right of self-defense.

Until now, the law of armed conflict has always been considered to be a matter between states (unless a civil war), but the law has been moving slowly towards recognizing as quasi-states dissident armed factions and authorities representing liberation movements. It might be possible to argue that a state can be involved in an armed conflict against an organization. Traditional law of neutrality, if applied by analogy (strictly it only applies between states), would require a state not party to such a conflict to prevent belligerents (including, in this case, the organization) from using its territory for the conduct of operations and to intern belligerents so doing (Hague Convention V of 1907).

Of course, things would be more straightforward if it could be established that a state was using the organization as its fighting arm¹. Even so, the response has to be what is necessary and proportionate in self-defense until the UN Security Council has taken appropriate measures. The Security Council has so far passed resolution 1368, in which it categorizes the September 11 attacks as a threat to international peace and security and mentions the right of self-defense, but does not lay down any specific measures. It is interesting that Article 5 of the North Atlantic Treaty has been invoked by NATO, so that the attack on the USA is considered an attack on all NATO states.

Some have called the attack a war crime. War crimes are violations of the law of armed conflict, which comes into operation only when fighting actually starts. An attack on a civilian object like the World Trade Center would be a war crime under that law. But, because of the difficulty of determining when an armed conflict occurs, tribunals have tended to err on the side of caution and label an attack without warning “aggression” rather than a war crime.

If the events of September 11 remain an isolated incident without any military armed response (as opposed to diplomatic and judicial follow up), then it could be treated as an act of terrorism, albeit on a huge scale, and dealt with under ordinary U.S. domestic criminal law, as well as under applicable international law relating to terrorist acts. Because the Lockerbie incident occurred over Scotland, the case was dealt with under Scottish law, but on “neutral” territory, the Netherlands.

There is at present no international tribunal that could deal with the crimes committed on September 11. The Rome Statute for the International Criminal Court is not yet in force, and will not apply to acts committed prior to its entry into force. Even if it were in force, the decision was taken at Rome to limit its jurisdiction to the four basic customary law crimes of genocide, aggression, war crimes, and crimes against humanity, and not to extend it to acts of terrorism as proscribed by the various conventions against terrorism. As to waging a war of aggression, there is still no agreement on its definition and the Rome Statute reflects this. Thus the attack, however murderous, barely fits within existing legal categories set out in the Rome Statute. On the other hand, it clearly falls within a number of the conventions defining terrorist acts, and it would be open to the UN Security Council to establish a tribunal to give effect to existing international law with respect to such acts, as it did for the former Yugoslavia and Rwanda.

There has been talk of “reprisal”, “retaliation” and “revenge”. Only the first of these terms is defined in the law of armed conflict. It relates to coercive measures resorted to in certain circumstances to enforce compliance with the law of armed conflict by the enemy. Retaliation and revenge are not legal terms and have no place in the law of armed conflict. For example, in the war crimes trials that followed the Second World War, military commanders who ordered the execution of a set number of civilians for every soldier killed by partisans were found guilty of war crimes.

For the armed forces, the fight against terrorism is different from a conventional armed conflict. Their role, apart from protection and security, is likely to be in support of the law enforcement agencies in classic anti-terrorism measures, including surveillance and intelligence and, possibly, special-forces operations. Should the armed forces be involved in operations in exercise of the right of self-defense, it is to be hoped that the lessons of Vietnam, Iraq, Somalia, and Kosovo will be applied to training and structuring fighting forces and that the general public, who may be expecting a spectacular response, will realize the limitations of strategic bombing in dealing with a low- technology opponent.

Perhaps the current universal mood can be captured to secure a convention on international co-operation against terrorism (and not just that directed against the U.S.A.). In the past, piracy was eliminated by international co-operation. Perhaps the same can be done to eliminate terrorism.

¹There is interesting legal background on this point. In 1986, the International Court of Justice ruled that the United States had no legitimate claim of self-defense in arming, equipping, financing, and supplying the paramilitaries known as the Contras. It further ruled that in circulating a training manual, the U.S. had encouraged these forces to commit “acts contrary to the general principles of humanitarian law.” However, the judgment did not find the United States imputable for the acts committed by the Contras.