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

Introduction

ELIZABETH NEUFFER: Good morning. I just wanted to welcome you here. I'm identified rather elaborately as an author but I'm actually a reporter for the Boston Globe. I'm also working on a book. And before we turn to our speakers I just wanted to kick off with an anecdote that came from a recent reporting trip to Rwanda which I think summarizes some of the themes we're going to be talking about today and themes that were, of course, touched on yesterday.

I was sitting in a village in Rwanda talking to a man who had lost his arm during the genocide to a group of Hutu Interahamwe who had chopped it off with a machete. And he wanted to know what was I doing in his village. And I said, "Well, I'm writing a book and I'm following a group of people from Bosnia and from Rwanda and talking about the process of justice over time. What is justice after a genocide? What is justice after a war?" And he said, "Well, whose justice applies to me?" And I said, "Well, among others, there's a group of laws known as international humanitarian law, which seeks to regulate the methods and means of war and to protect civilians."

Well, his response was to laugh rather wholeheartedly. And he said, "War is chaos and law is about order." He said, "Such a justice will never work."

Well, as our distinguished speakers today will discuss, it actually can and has worked, but not without difficulty, not without discussion, not without disagreement over definition of the law and its applicability.

International humanitarian law has evolved from an idea that was first put forward by a 17th century philosopher named Hugo Grotius into a series of international agreements or international instruments, a term we often hear, that seek to govern warfare and protect civilians. We know them as the Geneva Conventions, the genocide convention, land mine treaty, among others.

Now, for the first time, of course, we have two war crimes tribunals that are actually seeking to apply these laws. For many, many years these laws were on the books but we didn't actually have a court that could put them into use. And of course, we also have a permanent court in the making that will also, hopefully, apply these laws as well.

So in a sense it is working. But my Rwandan villager was actually very wise. He put his finger on a central conundrum to international humanitarian law, which is that it seeks to order that which doesn't want to be ordered like countries or defense departments, or perhaps better put, institutions that don't like to have order imposed on them by someone else.

Our panel will shed some light on the struggle to regulate the conduct of war while at the same time design laws that might not necessarily apply to them or to design those which they may not necessarily ratify.

The lawyers for the tribunals who have been working with these laws and trying to actually marry the law with the cases in court have been amazed at how frustratingly vague they can be in practice. Judge McDonald, who recently stepped down from the international criminal court in the Hague, tells the story of the many nights they spent trying to define the term "willful killing," which on the one hand had taken many years of discussion between different countries but when actually applied to a
particular case proved to be very difficult to define.

Ken Anderson, who is an associate professor at the Washington College of Law at American University and a very articulate one at that, helped edit the book Crimes of War and will kick us off with a quick overview about the sources of the law, give us a quick introduction to it, and also talk about the institutions that changed the law. So those of you who are editors out there know which institutions to take a look at and to follow.

Ambassador David Scheffer, who is the U.S. Ambassador-at-Large for War Crimes Issues, will talk about evolutions in the law. He'll touch on some of the legal accomplishments of these two tribunals, the Rwanda tribunal and the tribunal for the former Yugoslavia and such highlights as, for example, the Rwanda tribunal has ruled for the first time in history that rape is an act of genocide and a crime against humanity. And David, I'm also hoping that you can also touch on whether such evolutions have actually had any real impact for the victims they're meant to serve.

James Burger, the associate deputy general counsel of the office of the general counsel of the Secretary of Defense, will give us the military and official perspective. The military knows and follows international humanitarian law closely. Those of you who heard Michael Ignatieff speak yesterday remember he told the anecdote of the lawyer sitting by the arm of every general. I'm hoping you will let us know if, indeed, that is the case. And he will, I'm hoping, touch on such issues as why the Pentagon
continues to be opposed to the international criminal court.

Colonel Charles Dunlap, the staff judge advocate, U.S. central command of Air Force's 9th U.S. Air Force, promised last night at dinner to give us a maverick point of view. I've since given him a cup of coffee and he has refined that to an independent point of view. Right?

Anyway, he does promise to talk about practical issues that the law presents to officers in the field. And I'm joined also by my colleague Anne Cooper, the executive director of the Committee to Protect Journalists, who will raise some questions at the end about journalists and international humanitarian law.

Gentlemen, I should warn you that this panel is very much a journalist's dream, because we have a series of experts and State Department officials, Pentagon officials sandwiched by two journalists and facing a crowd of editors and journalists. So we challenge you this morning to go forward and answer some questions.