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.
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