December
31, 2002
2002
is likely to be remembered as a landmark year in the development
of the international law of armed conflict. Two conflicting trends
marked the last twelve months: a move to give the laws of war greater
precision and force, and at the same time the consolidation of a
new kind of conflict where traditional categories apply if
at all only vaguely.
The
new International Criminal Court launched on July 1
represents the first trend. It is the first permanent international
body set up to try people suspected of committing atrocities against
their fellow citizens or foreign nationals. The ongoing campaign
by the United States against al-Qaeda and other terrorist groups
represents the second a conflict that blurs the distinctions
on which the laws of war have relied up to now.
In
the meantime, in Chechnya, the Middle East, across Africa, and elsewhere,
more traditional conflicts continued to challenge the ideals and
standards that international humanitarian law seeks to promote.
International
Justice Comes of Age
The
International Criminal Court came into being after the sixtieth
country ratified its founding document, known as the Rome Statute.
By the end of the year, 44 nominations had been received for 18
places as judges on the court, though no name had been put forward
for the position of prosecutor. The courts launch was marked
by an aggressive campaign
by the United States to remove U.S. nationals from the reach
of the courts jurisdiction. The Bush administration argued
that the court had insufficient safeguards to prevent politicised
prosecutions against U.S. citizens, who would be particularly liable
to unjustified indictment because of the United States global
role.
The
United States threatened to veto the renewal of the United Nations
peacekeeping mission in Bosnia, securing a one-year
promise of immunity from prosecution for peacekeepers from
the United States or other non-member states. Administration officials
also began a vigorous diplomatic offensive to secure bilateral agreements
to prevent other countries handing U.S. citizens over to the courts
jurisdiction. The countries of the European Union agreed to a common
set of guidelines governing the kinds of agreement they
would be willing to sign and falling far short of what the
U.S. administration was seeking. At the years end, the differences
between U.S. and European attitudes to international law seem entrenched:
the Europeans are the most enthusiastic supporters of an independent,
international regime of criminal justice, while the United States
is its most powerful opponent.
In
The Hague, the most significant war crimes trial since the aftermath
of World War II got underway in February, when Slobodan
Milosevic appeared before the U.N. tribunal for the former
Yugoslavia. Conducting his own defense, Milosevic alternated between
aggressive interrogation of witnesses and frequent bouts of illness
that have slowed the already lengthy schedule for the case. Prosecutors
have concluded the part of the case relating to Kosovo, and started
on the part stemming from the wars in Croatia and Bosnia, for which
Milosevic faces the charge of genocide.
The
Yugoslav tribunal also delivered a significant ruling in a different
case. In December, the tribunal's appeals chamber ruled that the
journalist Jonathan Randal should
not be forced to testify against his will in the trial of
the Bosnian Serb official Radoslav Brdjanin, and formulated a set
of guidelines about when reporters should be compelled to appear
as witnesses before international war crimes tribunals: only when
their testimony would have important and direct value, and couldn't
be obtained elsewhere.
The
other major U.N. war crimes tribunal, for Rwanda, also began a highly
significant case in the fall, though with much less media attention.
Theoneste
Bagosora, a military official who is routinely described
as the mastermind of the 1994 Rwandan genocide, appeared in court
as one of four defendants in the so-called "military"
trial. The first witness Alison Des Forges, an advisor to
Human Rights Watch and a recognized authority on the genocide
was in the witness box for four weeks in September and (after a
recess) November. The pace of the trial, and problems gaining the
cooperation of the Rwandan government for any investigation into
alleged crimes committed by forces that supported it, continue to
hamper the tribunals perceived ability to deliver justice
in a credible way.
The
accelerating movement for international justice saw the launch of
a special court to try people for abuses committed during the civil
war in Sierra Leone. In East Timor, a similar "hybrid"
system with international and local judges sitting together
is already up and running, but these Serious Crimes Panels
have
been criticised for low standards of professionalism. In
the meantime, Indonesia has been conducting a parallel process of
accountability, but its ad hoc court acquitted the first ten Indonesian
suspects who appeared before it, prompting international charges
of a whitewash. The Indonesian government also signed a ceasefire
agreement with rebels in the province of Aceh,
but there were early indications that it was not being fully observed.
Humanitarian
Law in a New Kind of Conflict
The
U.S.
campaign against al-Qaeda and other terrorist groups moved
beyond a ground war in Afghanistan, fulfilling President Bushs
prediction that this would be "a new kind of conflict"
and raising many questions about how international humanitarian
law applied. In January, the first group of detainees from Afghanistan
arrived at the Guantanamo Bay navy base in Cuba. Two months later,
the Defense Department announced guidelines for military commissions
that might be used to try some of the detainees for war crimes.
As the year ends, no commission trials have been held, and several
hundred detainees are still in captivity.
Two
of those being held as enemy combatants are citizens of the United
States Yaser Esam Hamdi and Jose Padilla and lawyers
have tried to challenge their detention through petitions for habeas
corpus. In December, a judge in New York ruled that Padillas
lawyer could consult with his client, and said that it was appropriate
for the circumstances of Padillas detention to be reviewed
by the courts. Therefore it is likely that during the next year,
U.S. federal courts perhaps including the Supreme Court
will consider the outstanding legal questions raised by the Bush
administrations war against terrorism.
In
the meantime, the administration continues to follow its own interpretation
of how international humanitarian law applies as detailed
in a lengthy
interview that Charles Allen, a senior Pentagon official,
gave to this site. Among the questions which remain controversial
are whether the campaign against al-Qaeda qualifies as a war, when
it will end, and who counts as an enemy combatant. This last question
gained new force in November, when the CIA fired
a missile from an unmanned drone that destroyed a car carrying
six alleged al-Qaeda operatives in Yemen; the U.S. claims the right
to shoot to kill terrorists at any time except when they are actually
in custody.
The
war on terrorism also raised new questions about the legality of
initiating war under the current international system. In a speech
at West Point in June, and later in his outline of the governments
National Security Strategy, published in September, President Bush
developed a new doctrine
of pre-emption: against terrorist groups and rogue states
who may possess weapons of mass destruction, the doctrine goes,
it is not possible to wait until an attack occurs to defend oneself.
Instead, the President claimed that the right of self-defense should
extend to striking first. Will this argument be accepted by enough
other countries to gain legitimacy? Or will it remain as a kind
of imperial privilege that the worlds predominant power reserves
to itself in the face of international scepticism?
Old
and New Wars
The
conflict
between Israel and the Palestinians was in the headlines
for much of the year. Following a suicide bomb attack against a
Passover dinner in the Israeli coastal city of Netanya carried
out by a member of Hamas the government of Ariel Sharon sent
Israeli forces into the West Bank to occupy a number of Palestinian
cities. Over the following months, a series of suicide attacks and
harsh responses by the Israeli army pushed the bitterness of the
conflict to a new level, and led to credible claims that the laws
of war were being flouted on both sides. Some of the most violent
fighting was in the town and refugee camp of Jenin, though rumours
that the Israelis had carried out a massacre were found by independent
investigators to be exaggerated.
Less
publicised at least until the Moscow theatre crisis
was the conflict
in Chechnya, but it witnessed a continuing high level of
brutality. Violent sweep operations by the Russian army, summary
executions and disappearances were all widely reported. Despite
repeated pledges to improve the armys conduct, no Russian
soldiers were held to account for their conduct; the only one to
face trial, Colonel Yuri Budanov, was said to have been suffering
a period of insanity when he raped and killed a young Chechen woman.
At the end of the year, a double suicide bombing carried out against
the Russian civilian authorities in Chechnya seemed to indicate
the increasing influence of violent extremists among the separatist
rebels. The Russian governments announcement that it intended
to close refugee camps in neighbouring Ingushetia and force their
inhabitants back to Chechnya raised fears of a new humanitarian
crisis.
The
long-running civil
war in Sudan where there were credible charges of
genocide against government forces ended the year on an ambiguously
hopeful note, with serious peace talks underway; the next round
will take place in January. In the Democratic Republic of the Congo
there was also a peace agreement in December, raising hopes of an
end to the messy conflict, which had drawn in the armies of five
neighbouring countries. But a new and ominous civil war broke out
in Ivory
Coast, with rapidly escalating tension between the countrys
two main ethnic groups, and with the large number of resident foreigners.
In
Colombia, where a civil war has been continuing for decades, the
countrys new president, Alvaro Uribe, launched a new
military offensive against rebel groups. The presidents
drive to improve security in the country so far enjoys widespread
public support, but there have been complaints that the attorney
general has halted attempts to investigate abuses by paramilitaries.
Rebel groups have continued a campaign that includes bomb attacks
against civilian targets.
During
the next year the Crimes of War Project will continue to report
on violations of the laws of war and to chart the development of
international humanitarian law. Our site is intended as a forum
for discussion and debate, and we have asked a number of our regular
contributors and board members to give their assessments of significant
developments over the past twelve months. They are listed in the
left hand column.
On
March 21, 2002, the U.S. Department of Defense issued Procedures
for Trials by Military Commissions of Certain Non-United States
Citizens in the War Against Terrorism. Those procedures implement
the Military Order issued by President George W. Bush on November
13, 2001, providing for, among other things, the first military
commissions since the World War II era.
The
Procedures (like the President's Military Order) were issued without
the prior notice and opportunity for comment that the United States
has followed for 20 years in connection with changes to the Manual
for Courts-Martial. Further implementing regulations are being prepared,
and a request for notice-and-comment rulemaking in that connection
is still pending. Detailed information on the offenses to be tried
by commission, and the elements of such offenses, has not been made
public.
At
year's end, no military commissions have been appointed and--so
far as is known--no one has been designated for trial by or service
on a military commission, although steps have reportedly been taken
to identify military attorneys who might serve as counsel if and
when a military commission is appointed. In the mean time, a considerable
body of professional literature has been generated, assessing the
legality and wisdom of resort to military commissions for the first
time since the aftermath of World War II.
Eugene
R. Fidell is president of the National Institute of Military
Justice.
Winds
of change
For
almost half a century the Geneva Conventions of 1949 were regarded
as being carved in stone. Even their Additional Protocols of 1977,
though disputed by the United States, were predominantly accepted
as having "largely" reaffirmed the existing customary
law regarding the protection of war victims. In conflicts until
the end of the last century the warring parties including the United
States of America referred to the Geneva Convention rules when calling
for the application of humanitarian law by the adversary. The International
Committee of the Red Cross traditionally used the reference to the
Geneva Conventions in their admonitions to the parties. The International
Court of Justice and the Security Council of the United Nations
undoubtedly based their relevant decisions implicitly or explicitly
on this part of international law. Most important the war victims
around the globe had faith in the value of the Geneva Conventions
for their survival.
The
first complicated conflict of the new decade joggled the foundation
of the traditional humanitarian law: The Afghanistan War and its
aftermath. Sustained US-resistance against a direct application
of the Geneva Conventions to the detained persons in Guantanamo
and elsewhere as well as the political debate on the application
of the laws of war to the war against terror has fuelled lurking
doubts about the appropriateness of the traditional laws of war
to the new wars.
The
winds of change can easily be sensed everywhere, and their velocity
is not to the benefit of the present war victims. Whether there
is an appropriate new system in sight is rather questionable but
those calling for it should be aware of the risk that those who
sow the wind will reap the whirlwind.
Horst
Fischer is Academic Director of the Institute for International
Law of Peace and Armed Conflict at Ruhr University in Germany.
Humanitarian
law still has enormous unrealized potential to guide the worlds
statesmen in determining when regional disorders threaten the broader
peace. For the events of the past decade from the war in
Bosnia to the attacks of 9/11 -- have shown that war crimes and
crimes against humanity, coupled with impunity, are an alarm bell
signaling that far worse things are about to happen. Humanitarian
law was drafted on the ashes and ruins of disastrous past conflicts;
it is the law of "never again." But it cannot work unless
the major world power, the United States (and the leading regional
powers) shows respect for its own commitments and is seen to be
showing respect.
The
US governments unilateral reinterpretation of major elements
of the Third Geneva Convention (on Prisoners of War), and its refusal
to provide due process under any legal code to detainees at Guantanamo
Bay and other sites, sets a serious negative precedent. Lesser powers,
with aggressive intentions, will deduce that if the biggest single
power can ignore universal, ratified covenants, they can do the
same. This can lead to mayhem in far-flung places. Moreover, the
US governments approach can result in enormous future embarrassment
when it is determined, as I am sure it will be, that a significant
number of individuals was held indefinitely and without due cause.
The
US governments failure thoroughly to investigate atrocities
during the 2001 Afghan intervention, in particular, the murder by
suffocation of hundreds of Taliban prisoners, is another troubling
sign of disdain for the law by the worlds leading power. Its
worldwide campaign against the International Criminal Court, lacking
any defensible basis in fact, law, or logic, is seen by most of
the civilized world as a ludicrous quest that can only prove counter-productive
to the shared aims of world peace and order. There is no question
that the new courts statute and procedures deserve scrutiny
and improvement, but a frontal outside assault will hardly bring
about the desired result.
Roy
Gutman is a Senior Fellow at the United States Institute of
Peace and President of the Crimes of War Project.
International
Humanitarian Law was trashed in 2002 in the Middle East, specifically
in the Palestinian Israeli conflict. On the one hand the Israeli
army escalated its breaches of international law by means of numerous
violations. The most obvious ones include: extrajudicial killings,
collective punishments (in the form of demolition of homes of families
of those carrying out anti Israeli attacks), using human shields,
indiscriminate attacks against civilians and a continuation of settlement
activities.
The
latter is a violation of the fourth Geneva Convention which forbids
occupying powers from transferring its population to occupied areas.
Other acts included mass restrictions on the movement of Palestinians,
deportations and internal displacements and pillage of Palestinian
property during the incursions into Palestinian areas, most prominently
in April 2002.
Palestinians
also were guilty of war crimes by their indiscriminate attacks on
Israeli civilians. The attacks, most of them in the form of suicide
bombings, were clearly intended to cause harm and injury to civilian
populations.
Both
Palestinians and Israelis were also guilty of the violation of Article
32 of the fourth Geneva Convention which clearly forbids retaliation.
Both societies justified their violent actions against the other
by saying that it was in retaliation against an act carried out
by the other on their people.
Daoud
Kuttab is director of the Institute of Modern Media at Al-Quds
University in Ramallah.
A
Race Between Impunity and War
2002
has witnessed a distressing trend in the Middle East towards announced
ethnic cleansing in the expectation (and sometimes hope) of implementing
extremist agendas for wars that involve the massive displacement
or killing of populations.
Such
declared and undeclared policies are designed to lay the ground
for bolstering the legitimacy of leaders accused of mass crime,
namely the Iraqi and Israeli leaders on the larger Middle Eastern
scale; and, within Israel-Palestine, the top leaders in the Israeli
government and in the Palestinian Authority clinging to power and
waiting to ride the wave of wide-scale violence.
The
race between effective international accountability and the continuation
of mass crime in the fog of war is on. It extends beyond the Middle
East as a model to extremists in power the world over, especially
in Pakistan and India.
Chibli
Mallat is Chair of European Law and Director of the Centre for
the Study of the European Union at the Université Saint-Joseph
in Beirut.
What
struck me in the past year was how many more journalists were incorporating
references to the Geneva Convention and crimes of war into their
stories. I noted that in particular in the reporting on Jenin by
Marie Colvin of the Sunday Times and Luke Harding of the Guardian.
Jon Swain, I believe, also has done that in his reporting.
I am
sure that there are many other examples of this but those spring
to mind.
John
Owen is Professor in International News at City University,
London, and a director of the Crimes of War Project.
To
appropriate from a sentiment expressed by the English Court of Appeal
in the Abbassi judgment (6 November 2002), in the very year in which
over 80 states have reaffirmed their commitment to the international
rule of law, in respect of all acts, by bringing into force the
Statute of the International Criminal Court, what appears especially
"objectionable is that [a British national held at Camp X-Ray]
should be subject to indefinite detention in territory over which
the United States has exclusive control with no opportunity to challenge
the legitimacy of his detention before any court or tribunal."
Philippe Sands is Professor of Law and Director of the
Centre on International Courts and Tribunals at University College,
London.
All
law evolves in response to the context in which it is applied. In
the past year, the global security context has changed dramatically.
The primary threat no longer comes from States, but rather from
non-State transnational actors, particularly terrorists. The sole
remaining superpowers response is a "global war on terrorism"
that is neither a "war" in the classic sense, nor compatible
with the rules of warfare designed for State-on-State hostilities.
From the status of Guantanamo prisoners and the legality of CIA
Predator strikes to questions about where the conflict may be conducted
and when it will legally end, the jus in bello is proving ill-equipped
to meet the new security challenges.
At
the same time, possession, or the possibility thereof, of weapons
of mass destruction have transformed otherwise insignificant States
into global villains who dominate the world security agenda. In
response, the United States issued a National Security Strategy
that explicitly embraces pre-emptive strikes. It is a strategy,
one supported by allies such as the United Kingdom, which is forcing
the Security Council to become increasingly bellicose, lest it be
left by the wayside.
Clearly,
nascent security challenges are straining not only the jus in bello,
but also traditional understandings of the jus ad bellum. What are
we to make of this watershed year? As Bertrand Russell once observed,
"Change is one thing, progress is another." The global
security environment has changed and international law will surely
evolve in parallel; whether that evolution is progress remains to
be seen.
Michael
Schmitt is professor of international law and director of the
Executive Program in International and Security Affairs at the George
C. Marshall European Center for Security Studies, in Garmisch-Partenkirchen,
Germany.
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