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

c) Why does the United States Avoid Some Key Documents and Institutions?
James A. Burger, Col. JAGC (Ret.), Assoc. Deputy General Counsel, Office of the General Counsel of the Secretary of Defense

JAMES BURGER: Thank you. I think there have been two good introductions to me and to my presentation. And I thank my colleagues for what they have said.

I was asked to speak about why the United States avoids some key documents and institutions. And when I was starting to prepare for this I had a problem with that topic because I don't think we tried to avoid these documents or institutions but we do have problems with some of these documents and institutions. We do have a point of view and we do disagree with some of the things in these documents or that the institutions might be trying to do, or maybe more accurately some of the ways
that people would interpret these documents or would want these institutions to bring about.

And so what I'm going to try to talk about is I'm going to try to give our point of view on these things and try to explain how we come to our point of view.

The United States has what is called a Department of Defense or DOD Law of War Program. And we've had this Law of War Program for some time. It was first instituted following the Vietnam war in 1979 and, in fact, was due to a very lengthy and very hard-worked-on study of what the problems were in applying the law of war to some of the issues in the Vietnam conflict.

In looking over the very excellent book of Roy Gutman and Ken Anderson also in getting ready for this presentation, I think one problem I had, and it's a very excellent book, was any intimation that the reader might get that we didn't try to apply these rules in Vietnam.

When I got out of law school we were sending a lot of people over to Vietnam. In fact, my first assignment when I got out of law school was I was immediately assigned to Vietnam. And one of the first assignments that I was given was to teach the laws of armed conflict to the young soldiers who were being sent out in the field.

And I always remember that standing in front of this class and I had my staff judge advocate, an old colonel, sitting in the back of the class making sure all these new, young captains who were just out of law school were doing their job in correctly teaching the law of war and how it applied to what these soldiers were going to expect to do.

And I hope that the teaching that we did at that time had an effect. And I think it did, because at the time and place where I was assigned with the 25th Infantry Division at Cu Chi in '69 and '70 I think we were applying the rules pretty well and that we didn't have those aberrations that came about in an instance like My Lai.

I think My Lai was an aberration, and it didn't help us to accomplish our military ends. It didn't make our effort more militarily effective. It was basically a break down in discipline. And in trying to convince the commanders and the soldier that we’re teaching that you've got to follow these rules.

The point we were trying to make as teachers was that by following the rules you are helping to accomplish your military mission. And I think this has a lot to do with the United States' point of view in regard to some of these treaties and institutions.

What the DOD Law of War Program says is that one, we observe the rules. We look upon the rules as an obligation and we're going to follow these rules. Two, we're going to teach the rules. And, in fact, my own office, the Department of Defense general counsel, has a special responsibility under that program to assure that the rules are taught. And lawyers have a special job in this. We teach the trainers. We tell them what the rules are.

We have a school like in Charlottesville, the Judge Advocate General School, where we teach commanders and trainers. We have lawyers at all of the major military institutions, at the infantry school, the artillery school. All of the major schools will have lawyers there who work with the teachers to make sure that the programs are legally correct and that the training is being done.

And then finally under that program it requires us to apply the rules to our operations. And so, therefore, lawyers review the operations plans. Lawyers are participating in reviewing targeting during this Kosovo conflict. I was in Washington and we were reviewing the targeting decisions which were going to be made by the President when the President was going to approve a list of targets.

This doesn't mean that the lawyers are out there in the field and watching over every decision that the commander makes. But the lawyer participates in setting out the general rules as to what type of targets can be struck and not struck. And so we had lawyers participating in that in Washington.

One of the reasons I think the military was so sensitive when it came out that the international criminal tribunal for Yugoslavia was going to look into or might look into NATO bombing was that the military felt that they worked very hard in trying to apply the rules in Kosovo and conducting themselves in accordance with the legal rules which govern their conduct. And they felt that the rules shouldn't be -- a court shouldn't be looking into the conduct of one of the forces that was asked to bring out peace, to end the war crimes which were going on, the terrible, the ethnic cleansing, the tortures, the rapes and things like that which were really the serious war crimes that were part of what the war was all about and to look at what the peacemakers were doing because someone disagreed with decisions which were made militarily on how to win that war.

You'll also find in the book a discussion, and it was mentioned here earlier during the panel, of these basic principles of the laws of armed conflict, military necessity. Well, military necessity is the principle which says that you can use force to accomplish your military objective. Force is authorized under the laws of armed conflict. But at the same time you're only supposed to use necessary force. And we try to avoid unnecessary suffering, the unnecessary killing of civilians, the unnecessary destruction of property. And military planners will take into consideration in deciding how they're going to conduct their war to make a distinction between military targets and non-military targets. We do not target civilians. We do not target civilian property. We target things that we've decided will give us a military advantage.

Now, this doesn't mean that the military can prevent itself from killing some civilians or destroying some civilian property. There will be collateral damage which cannot be avoided. But this damage is unintended and the military will try to limit that to the maximum extent possible. And it's also a principle of proportionality.

And you will make a judgement as to if you feel that the proportion of damage to the civilian sector greatly outweighs the military advantage to be accomplished then you're not going to make those decisions to go ahead with that attack or use those weapons in this particular circumstance.

Now, all of these principles are looked at and are applied. However, the military does not want a civilian institution overlooking the commander in making these military decisions. The military would object to the fact that you might have a civilian judge who would be second guessing the commander and say, "Well no, in my opinion you went too far in this case in making that military decision." The military wants to preserve the right to make the decisions that they feel are necessary to win the war and get this conflict over with and accomplish their mission.

This whole movement today about humanizing the laws of war, part of it is an effort to try to end war by making it so difficult to fight the war that you can't have wars any more. If you make the rules so strict then you won't be able to have the use of military force any more because just about any killing of civilians or destroying civilian property is going to be illegal so you can't fight the war. Or you might say, well let's make a certain type of weapon illegal even though the weapon is very effectively militarily. But we'll make that weapon illegal so you can't use it even though it might help you to win that war. And that gives a problem to our military planners.

The big problem with the Ottawa treaty is that although certainly there is a terrible problem with anti-personnel land mines and it's causing a terrible amount of suffering and injury to civilians, the land mine is a very effective military weapon.

And the United States with troops on the border between North and South Korea where you have thousands of troops and tanks that are waiting to go over that border and attack you that you don't want to give up a weapon which you feel is very necessary militarily to protecting your soldiers and accomplishing your military mission.

So that's why the position in the United States today in regard to the Ottawa treaty is that we will look into alternatives. We would like to become a party to the Ottawa Treaty but we are not able to at this time because we feel that we have military obligations and needs for these weapons that we cannot entirely give them up. So therefore, we're looking at alternatives to see if we can find ways that we can accomplish our military missions without using these type of weapons.

I'd like to say a few words about the Protocols. The United States is not a party to either Protocol One or Protocol Two to the Geneva Conventions. However, we participated in the negotiations for the Protocols. We helped write the Protocols and I would say that the United States is in agreement with 99 percent of what is in those Protocols.

When I was a military lawyer in IFOR in Sarajevo and I was advising the IFOR commander and we were working with lawyers from Britain. We were working with lawyers from the Netherlands, with lawyers from a number of other countries within NATO that we had no problem with the fact that the United States was not a party to the Protocols and some other nations were a party to the Protocols. We were in agreement on the rules.

I think most of the our problem with Protocol one is the way some people would interpret this Protocol and would try to interpret it in a way which would too strictly limit the military commander. And I think one of my colleagues has reminded me, I think what you're saying is that I should point out that we are in favor of ratifying the second Protocol applying to non-international conflicts. And that actually has been sent to the Senate for their advice and consent.

So the problem with some of these things is not that we disagree with the intent or what these documents are trying to accomplish but we do have problems in the way that certain people are trying to apply these.

And with regard to the international criminal court the United States has always supported a criminal court that could prosecute serious war crimes. And, again, when I was in Bosnia we were supporting the international criminal tribunal for former Yugoslavia. We were giving it intelligence. We were giving protection to investigators for the court. We were flying some of the people who were apprehended to The Hague for trial.

And Mrs. Del Ponte today, when she visits NATO or comes to the United States, some of the things she's looking for is support to the court and the United States is in favor of support to the court. But we do not think that a court should be looking into the types of things, decisions, that a commander in accomplishing a legitimate mission can do and that a court should be able to second-guess a commander and say, "Well, we disagree with what you did in making this military decision. And we're going to prosecute you. We're going to prosecute a pilot who was carrying out this mission.
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And that is the main problem that the United States has today in regard to the international criminal tribunal. And the statute of that tribunal is the fact that a prosecutor working for that court could call into the court possibly a United States soldier and that soldier could be prosecuted for just carrying out his military mission.

Another example is in regard to child soldiers. And the United States agrees with the movement which would seek to stop this great abuse of using very young children as soldiers; forcing them to participate in conflicts; young boys who are 11, 12, 13 years of age and making them fight as soldiers.

However, there are some people who would make these rules so strict that it would present a problem for the United States where we recruit people into our Armed Forces at the age of 17. At the age of 17 you may enlist with the permission of your parent. And we feel it's very important to the United States in being able to keep our forces at the level we believe they need and to get enough good people that we are able to go out to schools and to ask young people to come into the military.

And some of the people joining the military join up at the age of 17. Very few of these actually enter the military at 17 and very few of them would actually go into combat because of the fact that by the time they're trained and they get out to their units most of them are 18 and older.•But these are the types of problems that the United States has with some of these treaties and with these institutions.

Our position is that we can fight a war. We can do it honorably and we can do it in a way in which we observe the rules. But we would take issue with those who would say that we cannot do that. You cannot use force. You cannot use the weapons that you need to accomplish your military mission.

Thank you.

A PARTICIPANT: Can I just suggest that on the child soldiers you might want to just explain our position on the Protocol, because that was an important development.

JAMES BURGER: Yes, and the position that the United States advocated and which was finally accepted is being considered for being adopted by nations is that it will be allowed for nations to recruit people under the age of 18. However, that we will use all feasible means not to put those people, those young people, in situations where they would become involved in combat. And so that if we have young people in our armed forces we will not assign them to areas or we will not place them in situations where they will be involved in combat.

And there is some sort of latitude there by talking about all feasible means because you could have combat break out in a situation where a young person is assigned to a unit which becomes involved in a combat. And we felt that we needed some flexibility. And our own Defense Department feels that we could live with this terminology all feasible means.

ELIZABETH NEUFFER: That's been very helpful.