Crimes of War

A seminar for editors sponsored by The Crimes of War Project and The Freedom Forum

Day Two, Panel One: Demystifying War: The Role of International Humanitarian Law

Moderator: Elizabeth Neuffer, journalist, Boston Globe, and the author of a forthcoming book about war crimes and the Rwanda and Bosnia war crimes tribunals.

Discussant: Ann Cooper, Executive Director Committee to Protect Journalists

a) What is in the Law Right Now?
Ken Anderson, Associate Professor, Washington College of Law, American University

KEN ANDERSON: Thank you, Elizabeth, for that opening. I have exactly nine minutes. And as a law professor I'm going to take the first three of them to talk to you about what law professors refer to as black letter law fashion. I'm simply going to describe as best I can what are the most basic sources of the law in this area that you would find as soon as you open the book Crimes of War.

And then the remaining six minutes I'm going to shift to something which I think is much more debatable, something which is really my own perception of the politics of what is driving forward at this point changes in the law and describe a series of institutional interests, institutional actors that I think as editors you have a need to know about and understand these players as you go out and seek information in order to apply it to any particular problem or any particular situation that you might actually face as editors and journalists.

First of all, to start out with the sources of law that apply in this area of international humanitarian law. From a lawyer's standpoint we always start from the instruments, as Elizabeth has referred to them. And those are fairly straightforwardly in the main four Geneva Conventions that were last revised following the Second World War. They cover four topics, one for each. The first is the treatment of soldiers once they're out of combat, once they're injured or captured. The second one is dealing with the question of how you have to deal with the sick and injured. The third deals with prisoners of war, and the fourth deals with occupied territories.

Those four Geneva Conventions form the backbone, but they have been significantly modified by two additional, or certainly one additional, protocol, the so-called two additional protocols of 1977 that were elaborated during the late 1970s in long negotiations, and as anyone who's read them or looked at them closely will understand they're highly influenced by the colonial and the anti-colonial wars, Vietnam and the wars in the developing world over anti-colonialism.

The United States is not party, that is it is has not ratified, particularly the first of these two additional protocols, even though it recognizes that that protocol largely states its view of most of the critical issues that arise in substantive laws of war questions, questions of what is indiscriminate attack, questions of direct targeting of civilians, questions of siege warfare.

Most of these questions the U.S. has accepted that Protocol One, as it's usually called, reflects the U.S.'s view of what international law is even though the U.S., for other reasons, namely other parts of this document that it does not accept, has never actually ratified the document.

I would say that at this point as a practical matter if you were trying to find the substance of the law of war on a given topic, the best place to start is with Protocol One. Not all areas are things that the U.S. adheres to or even have been widely adhered to by many states. But it probably is the best place to begin as a substantive matter along with the four Geneva Conventions.

There is a lot of attention paid these days to a series of conventions that surround these central conventions. One would be the so-called second protocol that covers certain parts of internal warfare. It's been much less widely accepted, and the U.S. has never signed on to it, either. And then in addition there's things that we talk about a lot, the genocide convention, the torture convention, more recently the land mines convention, which, again, the United States is not a party to. But the main body of substance is really found in protocol one and the four Geneva Conventions.

Now having said that, I think anybody who has paid any attention to this field in the course of the last ten years understands that this body of substance has been shifting a lot. And I want to now turn and describe some of the institutional actors and the conflicts that they have between different institutional actors that in some ways are pushing forward that body of law.

In the first place, there's the development of the tribunals that Elizabeth has referred to. They're in the process of developing case law that arise out of these conventions. But it is genuinely case law. And I mean that in a sense that just as in the U.S. domestic court system the substantive body of law is highly influenced in the final results by the procedures that the courts adopt, in other words procedural law, such as the Miranda warnings and things like that, have a huge impact on what the ultimate result of a law will be.

In like manner in these tribunals the development of procedures, the development of ways of taking evidence, the ways of examining witnesses, all of these apparently procedural matters have an enormous impact on what the final result of the law might be even when it starts with this body of substance that I've already outlined.

Now, institutionally -- and I'm going to be speaking of somebody who's an interested party. And I should probably declare at the outset that my politics on this are unlike probably anybody else's on this panel and probably unlike anyone else's in this room. I'm probably somewhere to the right of Jesse Helms in terms of my views on the desirability of tribunals.

So what I say here you should take here with a grain of salt. But that's part of my point is that what anybody says about these things one should always take with a grain of salt that editors I've noticed tend to assume that those who speak about humanitarian law must be humanitarians and, therefore, what they say must be trustworthy. This is a very bad assumption and you should apply the same one listening to me.

The tribunals are driven to some degree or other, I would say to a large degree, by a desire to institutionalize themselves. So it's a desire on the part of the tribunals, and a very laudable one from their standpoint, to want to make themselves permanent in some way and to become permanent features of the international landscape. That has an impact on the way in which they go about things, on the way in which they seek to attain credibility and the parties, the folks, the institutional actors, the countries that they feel they need credibility with. That is, they do not feel they need credibility with, for example, India or Pakistan. They do feel like they need credibility with NATO. And these political facts have an impact on how it is that they guide their processes.

Now, a second line of institutional division is the line that I increasingly fear is being drawn between those who make international law in this body of war making who the countries which have no intention and no possible reason to think that they will ever go to war again, and the countries which actually feel that they might at some point have to fight and win a war. That division is one in which one sees increasingly cleaving the development of this body of law, probably most visibly in the land mines
area.

You'll notice -- and despite being to the right of Jesse Helms I'm a very strong supporter of the land mine convention. But the problem is that we have achieved a convention which I'm very proud of and have spent a lot of time working on in which the parties which have signed on seriously include all of the irrelevant countries and virtually none of the relevant ones. And I don't just mean the United States.

But the fact is, there are very, very few countries that have signed on which you would put in the category of countries which feel that they might have to fight and win a war which they might possibly use and in which land mines could be a relevant factor in that.

That cleavage between people willing to make law in an area in which they don't have a direct stake in the outcome and countries that are not willing to sign on to that law because they do threatens the universality of the kinds of regimes that are being created. And that is an enormously dangerous thing. And I say that as somebody that has fought hard to achieve that result in the area of land mines.

Now, let me just say before closing because time is ticking, the role of the U.S., and this winds up being multiple because of the fact that the U.S. occupies different roles with respect to these cleavages. On the one hand it has a genuine humanitarian internationalist interest, the kind that Jessie Helms and I are not thrilled with, in seeing these international institutions go forward from a simple, straightforward desire to be the good guy.

Second, however, the United States is also, such as in the land mines situation, a country which seizes off in the position of potentially having to fight and win a war virtually alone among its allies.
Everyone else is disarmed.

Take a look sometime at the figures of what the Canadian army has done with itself since the Gulf War alone and one will realize that most of the countries that are out there pushing these things that are most vocal -- that is, the good-guy countries that we normally look to, that when I go out as an NGO activist and look for foreign aid it's the Swedes, it's the Dutch, it's all of these folks -- but when one actually looks to see what they have done militarily they have turned themselves into sort of an international constabulary. When it comes to fighting a war and winning it they look to the United States or they are not worried about it because they don't think that that can truly threaten them in Europe, whereas the United States always has to look to the possibility of conflict in Asia, to which, frankly, Europe is indifferent.

That geopolitical fact has an enormous outcome on the development of this area of law. It doesn't sound like it necessarily, but it does in terms of how the U.S has to think about it.

The U.S., however, also occupies the position of being at this moment the superpower which is capable of going in a place like Kosovo and fighting a war and knowing that if it wants to it can always win. So it's able to adopt the sort of above-the-fray view of the kinds of rules that should apply because of the fact that it knows that at the end of the day it has got overwhelming force that it can bring to bear.

So it has two roles there. It understands that at this moment in many conflicts it can play the overwhelming superpower, but there might come a day in which it can't, particularly in conflict with China.

Finally, there is the issue driving this forward of the development of the law in relation to the technological haves and the technological have-nots.

The U.S. and NATO have been, I think, indirectly pushing a line which says that the rules which apply to those who have smart bombs are not the same rules which apply to those who don't, with an implication being that if you don't have smart bombs you really ought not to be fighting. The rest of the world does not buy this line at all.

I had a conversation with a senior Indian military officer that I've had long contact with over the course of the land mines campaign who said to me about Chechnya, he said, "I acknowledge that the Russians have carried out many, many, many crimes in taking Grozny." And he said, "The problem I have with this is that the Russians could have carried this out in theory at least. They could have carried this out without having committed those war crimes but there still could have been an enormous toll in civilian deaths. And the problem with NATO on this is that NATO turns around and says essentially, if you wind up killing a lot of civilians it must be a war crime. And if you don't wind up killing a lot of civilians, however you carried it out, it must not be a war crime, because that's the logic of smart weapons. And to a fair extent what NATO said in Kosovo was that we didn't kill enough people for this to amount to anything important."

The rest of the world does not buy this, and it points to a cleavage along technological lines of what is going to drive this law forward and what at bottom threatens the universality of this law.

I think that as editors that you want to be extremely cautious in how it is that you take views on this, whether from me or from anyone else, and understand the sort of institutional forces that are operating behind where people come from. It's easy enough when one's talking to NATO. It's much more difficult talking to professors. So you want to be very cautious in this and try to understand on what sides of these kinds of cleavages people come down in order to understand where the law is actually going.

Thank you.

Ken Anderson Bio.
Associate Professor of Law, Washington College of Law