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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 court’s launch was marked by an aggressive campaign by the United States to remove U.S. nationals from the reach of the court’s 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 court’s 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 year’s 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 tribunal’s 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 Bush’s 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 Padilla’s lawyer could consult with his client, and said that it was appropriate for the circumstances of Padilla’s 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 administration’s 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 government’s 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 world’s 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 army’s 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 government’s 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 country’s two main ethnic groups, and with the large number of resident foreigners. In Colombia, where a civil war has been continuing for decades, the country’s new president, Alvaro Uribe, launched a new military offensive against rebel groups. The president’s 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 world’s 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 government’s 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 government’s 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 government’s 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 world’s 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 court’s 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." 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 superpower’s 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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