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

b) How Has the Law Changed in the Past Decade?
David J. Scheffer, U.S. Ambassador-at-Large for War Crimes Issues

DAVID SCHEFFER: Thanks, Elizabeth, very much. Yes, I thought Ken's presentation was extremely informative and helpful. But I will have something to say about his analysis of NATO at the end of my remarks which is extremely different from what you just heard.

My task this morning could be an endless one, so my challenge has been to condense this into about ten minutes or so. And it's not easy. But I've been asked to talk about the evolution of the law in the past decade. And that's been an extremely significant amount of development in the codification of the law and in the actual enforcement of it through international tribunals.

There's always been a basic tension between humanitarian objectives and military necessity, because it's an analytical exercise and, therefore, there's tension. It's between military necessity and restraint on military conduct. Now, humanitarian restraint has been promoted more vigorously and in a normative way. But the reality on the battlefield remains cruel and bloody, especially in internal conflicts.

What we have increasingly seen is what my colleague, Professor Ted Meron, at NYU law school, has called the humanization of humanitarian law. The increasing fusion of human rights law into international humanitarian law and the more and more sophisticated application of the laws of armed conflict. And I'm going to draw briefly upon some of the points that Professor Meron has actually made in a recent article in the American Journal of International Law. He and I have worked together for many years. And I regard his views as well as the views of so many academics who have been working this issue such as Professor Anderson and others to be absolutely invaluable. They're a great tool for us as we work the operational side of this issue every day.

I think Ted's recent article in the American Journal of International Law points out some very interesting points that I would like to emphasize here because I agree with him.

If you look back we've had an interesting progression, particularly in the last 140 years or so, in this area. First, the Lieber code from the Civil War set the premise for so much that followed. Then the International Committee for the Red Cross about the same time came into being with the work of Henry Dunant that looked at the human side of warfare, whereas the Lieber code was looking at the military side of it and how to conduct it lawfully.

The ICRC obviously took a sharp focus on how to protect civilians and combatants who were, shall we say, outside of the sphere of combat because of their status on the battlefield or off the battlefield, how to protect those individuals.

The next great phase, of course, was the Nazi atrocities and what followed. And as Ken made some reference to here, the key documents, the Nuremberg Charter, the 1949 Geneva Conventions, the Genocide Convention, all of this happened in the late 1940s. And that lifted state-to-state aspects of international humanitarian law to the level of individual criminal responsibility and shifted some emphasis from the rights of states to the rights of the individual in the context of these conflicts.

Now, within the last decade we've had the Balkans, Rwanda, Sierra Leone the Democratic Republic of Congo, formerly Zaire, Iraq. What happened in all of these cases is not necessarily unprecedented, as unbelievable as they have been. But it is you in the media who have been able to sensitize public opinion far more rapidly to what is occurring in the field than we've ever had before. It's an instant dump of information that requires an instant policy response by governments and an instant
triggering of legal analysis and legal applications within minutes, if not hours, every time this happens.

And, you know, I'm going through this exercise right now with respect to a certain part of the world and it's just instant, it's just coming fast. The idea that I would sit down and some day figure this all out in law review article is just light-years away from reality. It has to be figured out right now this weekend and then applied. And one of the reasons is because the media is bringing it to us very, very quickly both in imagery and in print and, of course, over the Internet.

Let me just jump then to some other points. Obviously, in the last decade what has risen with such prominence is the phenomenon of internal armed conflicts or non-international armed conflicts of which so many of these are and how to work normative developments into these internal conflicts. The laws of war originally started with the presumption of international conflicts, although the legal code, of
course, was the Civil War code and emerged as to how the U.S. military should conduct itself with respect to the Confederate Army.

But in any event, so much of the development has been with respect to international conflicts. And it's within the last decade that there's been a tremendous amount of evolution with respect to how those norms are applied to internal conflicts.

And the U.S. government has been at the forefront of supporting the applications of these principles of law to international conflicts. And I'll have a little bit to say about that in a couple of minutes.

The work of the two tribunals, as has been mentioned, the Yugoslav tribunal and the Rwanda tribunal, has had enormous influence on the development of this law. We have two active dynamic courts where all these issues are being debated through prosecution and defense and then adjudicated by judges, not juries but judges, who render long opinions discussing the normative development of international humanitarian law. So it's an almost daily exercise of evolution in Hague and in Arusha.

Let me just say, focusing on internal conflicts, that for editors and journalists I think it's important to remember some fundamental points here that have emerged so prominently in the last decade. And that is a sharper focus on article 2, sub-paragraph 7, of the U.N. charter. This is the one that says. "Don't interfere in internal affairs of states unless" -- and it's the "unless" that has become more prominent -- "unless the Security Council has determined that there shall be such intervention in internal affairs."

And, of course, that was a premise for the council to act at least in part with respect to the Yugoslav tribunal and the creation of the Rwanda tribunal, because there was a perceived need to judicially respond to a threat to international peace and security, in both areas of which many people were arguing at the time were strictly internal matters that the council shouldn't be involved in.

But then they pointed to article 2.7, that allowed the council to actually trigger its own activity as long as what it was dealing with was a threat to international peace and security, even if it's confined internally.

Another point, developments in the use of certain weapons. We've been experiencing in the last decade a lot of emphasis on ensuring that if a weapon is prohibited in its use that that prohibition applies to an internal conflict just as much as it would to an international armed conflict.

And to make it impossible -- well, weapons that make it impossible to maintain a distinction between civilians and combatants have been sort of at the top at that list. And of course, that was the whole driving force behind the anti-personnel land mine campaign that they wanted to remove that and ensure that that's a prohibited weapon not only for international conflicts but internally.

And also other weapons that are apparent to the public conscience, chemical weapons, biological weapons. And there's even a big debate out there regarding blinding laser weapons. All of this is in the context of looking at it not only as an international but also internal prohibitions.

There's also been a lot of discussion about the law of reprisals. And as editors and journalists you know that reprisal is still out there. It's a very dominant feature in many parts of the world as to how militaries conduct themselves. And there are some who argue that reprisals even in an internal context should be completely outlawed. There are others that still find some value in some regulated form of the right to reprisal in a military context.

And I know that within our government we certainly have not sought to argue that reprisals are totally prohibited. There are situations where reprisals under the laws of armed conflict are justified. And therefore, that debate is a very dynamic one.

Now, you will often hear a term in your work and reading your journalists articles that if they do refer to the Geneva conventions they talk about protected persons. It's usually lawyers who only focus on this issue.

But quite frankly, this is a very dynamic part of what has evolved in the last ten years. Conventionally under the Geneva Conventions a protected person was usually regarded, if not almost always regarded as the other guy's nationals, not your nationals but your opponent's nationals. If you went onto his territory and occupied it you've got your opponent's nationals you've got to deal with and you have to handle them fairly and justly under the Geneva Conventions. Or if you've got his soldiers you've got to handle them carefully.

What has evolved so dynamically in the last ten years is that the Geneva Conventions and the protocols which followed them in 1977 are increasingly being applied to your own nationals. And this is particularly true with respect to internal armed conflicts where the Geneva Conventions and the protocols that follow them need to have a more vigorous presence and enforcement.

And basically what has happened, and this has come out of cases in the Yugoslav tribunal, in particular the Celebici case and the Tadic case, is a more flexible interpretation of the nationality test under the Geneva Conventions.

And in fact, the argument has been made, and I think Ted Meron makes this argument, that when you really think about it the logic of the UN Security Council in establishing the two tribunals wouldn't make much sense if you took a very narrow reading of the Geneva Conventions that it only applies to the belligerents' nationals outside of your borders. Because, of course, in Bosnia it was within Bosnia years ago that the conflict took place. In Rwanda it was within Rwanda that things took place.

And therefore, what has evolved in respect to both of those cases is a ruling by the tribunal, the Yugoslav Tribunal, to begin to extend the Geneva Conventions and the protocols to anyone who is within the control of the belligerent, whether that person is a national of the territory that he's standing on or not. The question has really become allegiance and not nationality as the key factor. And I'll just quote a ruling from the Tadic case in 1999 at the appeals level where the court ruled, "While previously wars were primarily between well-established states and modern inter-ethnic conflicts such as the former Yugoslavia new states are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance. Allegiance to a party to the conflict and correspondingly controlled by this party over persons in given territory may be regarded as the crucial test."

And also, I will point out that the chairman of the joint chiefs of staff in an instruction to the U.S. armed forces in 1996 stated, "the armed forces of the United States will comply with the laws of war during the conduct of all military operations and related activities in armed conflict, however such conflicts are characterized."

And that has sort of set the premise of work since 1996, including our amicus brief that was rather coincidental to that directive to the court in the Tadic case, whereby we truly seek the application of these laws, customary international law, to internal armed conflicts. And we fought that battle very hard in the ICC negotiations and we won it despite the opposition of China and India, Pakistan and some other states who had a very tough time grasping the internal conflict issue.

Let me just go through some other examples of evolution and I'll quickly wrap up. In the Yugoslav and Rwanda tribunals we can look at the Tadic and Celebici cases for the application of internal armed conflicts of these rules. We can look to the Blaskic case for how to prove command responsibility. We can look at a whole host of cases that refocus attention on victims and their entitlement to restitution. We can look to the Akayasu case of the Rwanda tribunal that Elizabeth mentioned, where the crime of genocide was interpreted to include rape as a form of genocide if its intent is to actually eliminate a particular group of individuals through the act of rape and what follows from the act of rape. If the intent is there that rape is part of a genocidal campaign than rape is part of the crime of genocide.

We can look at the Foca case, which is under way right now. It's the first systematic rape trial in the history of international tribunals looking at sexual slavery and bringing those principles of law very much to the fore. We can look to the Tadic case again for the relationship between crimes against humanity and war crimes and ruling that they're on an equal part, crimes against humanity and war crimes. There's no tiering of these crimes. There was a presumption by many that somehow crimes against humanity were more serious than war crimes.

And the Tadic case made it very clear that you don't rank them that way. They're both of equal seriousness. The Erdemovic case dealt with the issue of no defense of duress or superior orders but certainly established that there can be a mitigation factor in the sentencing of someone who follows superior orders depending on the circumstances and facts of the case.

All of the Rwanda tribunal cases are establishing very firmly that there's no nexus necessary between armed conflict and crimes against humanity. And that's been very important. And of course, several cases are expanding the parameters of sexual crimes.

The work of the international criminal court negotiations both before Rome, at Rome and during the preparatory commission talks now in New York have coincided with these developments in the war crimes tribunals. And thus, they go hand in hand with creating a new international legal framework.

I would also say that I think one of the most important developments was the tribunals and also in non-tribunal scenarios around the world where there are atrocities. The phenomena of the last ten years that you do not wait, in other words you can create an ad hoc tribunal while the conflict is under way. Whether you do or not you have an imperative need to collect evidence as quickly as possible even while the conflict is under way. Are there ways to collect evidence with respect to individual
criminal responsibility?

Nuremberg was very different. All of the collection of evidence and the trials all took place after World War II. Now we're in a different age where these things come to fore much more quickly.

And I could cite Kosovo as a clear example where Milosevic was indicted during the conflict along with four of his colleagues in the Serb leadership. And where within about ten days after NATO entered Kosovo I actually went in with an FBI team for the first forensic work along with British who were going in at that time, and I think the Swiss were in about that time too within about ten days, going in and getting that forensic work done as absolutely as quickly as possible and asking military forces to provide the necessary security which they did. And we learned that experience from Bosnia where military forces learned that there is a need to join up with forensic teams and provide the necessary security.

Now, let me conclude with the ICC statute itself. And I know I've gone over time so I'm just going to quickly say that within the crimes against humanity and war crime sections, that's article 7 and 8 of the ICC statute now, there was considerable evolution. And certainly not in creating new law because we had a strict mandate not to do that, but rather in sitting down in a codified way what we as a collective group in the negotiating room believe is customary international law. And that's an important development, believe me, because a lot of customary international laws are sort of out there in the ether and you sort of have to pluck it down academically whenever you can.

And the beauty of the ICC process is that we took the time to try to determine what is customary international law and let's get it down on a piece of paper. Some of it's already in other conventions, some of it's not so let's get it down. And that's exactly what we did. And it's a fascinating story as to what I could sit here for a long period of time and tell you, "Guess what's law now?" It's kind of interesting what is law and what we say is law now and not what we guess it is but what we are saying it is in the ICC statute.

We also were very insistent in negotiating the treaty that there be what's called an elements of crime process after the conclusion of the treaty as a supplemental document to it. That too is a phenomenal development in the evolution of international humanitarian law because it's in the elements of crime where we are establishing the guide path for how to prosecute these particular crimes, how to defend your clients with respect to them and then how judges should evaluate these crimes. The elements in great detail describe issues of intent, burden of evidence, et cetera. And that's a development in international humanitarian law which has enormous pragmatic significance in actually making it work. And that process will come to a close on June 30. We'll close down that document at the prep com on June 30, and it will be a document that will stand out I think in very, very good stead with the creation of the court.

Finally, on Kosovo, I would just say that I respectfully disagree with Ken's analysis of NATO's view about well, if there are only a few civilian deaths with smart bombs, that's okay. The criterion is how many civilians die. As I'm sure you will agree, it's a far more sophisticated exercise than that. And the targeting exercises that were undertaken during the NATO campaign were the most sophisticated ever in the conduct of warfare and went through an enormous amount of analysis target by target.

I think the issue as I understand it, Jim, for all of us, including the Pentagon, is criteria in the laws of armed conflict that certainly focus on military necessity, proportionality, your ability, the kind of munitions you have, what are you prioritizing in terms of the use of those munitions in order to minimize the loss of civilian life.

But it's not saying if you don't have smart bombs you can't fight a legitimate war. You can fight a just war with very conventional bombs. But the issue is if you've got the capabilities how are you exercising your responsibilities under the laws of war with the capabilities that you have to fight that war? And we take pride in actually being able to develop smart munitions and then going through truly the most sophisticated exercise I've ever seen in how you target.

Thank you.