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.