He
who fights against a monster should take care lest he become a monster
himself.
Nietzsche, Beyond Good and Evil.
Law
is always late for a war. The peculiar evolution of international
humanitarian law could best be summed up in such a phrase, inasmuch
as the struggle to impose rules on methods of warfare only seems
essential after the bloodiest and vilest episodes of mass crime.
As though such crimes were previously unthinkable, or rather as
if nations felt that force of arms alone would be enough to ward
them off. In 1938, the International Committee of the Red Cross
proposed to states to draft a convention protecting civilians during
armed conflict, to complement existing rules which were restricted
to providing protection for members of the armed forces, whether
wounded or taken prisoner. The proposition was rejected by the states,
which believed their defence and their national security to be centred
on the deterrent effect of their armed forces. The Second World
War proved how wrong such a strategy was, demonstrating just how
much the use of armed force by a nation could impact on civilians,
including its own civilians. Several million deaths later, the nations
tried to make amends for this slip in political appreciation by
setting up the International Military Tribunal at Nuremberg and
by ratifying new international agreements. In 1948 states adopted
the Convention on the Prevention and Punishment of the Crime of
Genocide and in 1949 they signed at Geneva four conventions of which
one, the fourth, is entirely devoted to the protection of civilians
in armed conflict. Nonetheless, the fifty years since then have
demonstrated that states persist in relying more on force in the
regulation of international relations than on law. So we see, for
example, that the American government has considerably increased
its defence budget since the attacks of 11 September 2001, but persists
in its refusal to ratify the statute of the International Criminal
Court charged at the supra-national level with the exercise of justice
against perpetrators of genocide, of war crimes, and of crimes against
humanity.
Force
of Arms or Force of Justice?
We
have lived since the end of the Second World War, rather under the
protection of the nuclear deterrent than under any protection afforded
by international humanitarian law. That protection only covered
a limited number of countries. No doubt the experience of the Nuremberg
Tribunal, followed by fifty years of juridical silence in the international
field, contributed to the sense that justice should remain an ad
hoc instrument in foreign relations. The victorious nations who
were at the time setting up the UN did not think to equip the international
community with a permanent international criminal tribunal. In 1948
the Genocide Convention expected such acts to be punished by an
international court, which the nations simply did not get around
to creating. So the world has lived fifty years in the shadow of
Nuremberg, a symbolic tribunal whose practical use has disappeared.
Seen
from the United Nations point of view, it was a time for keeping
the peace, a peace at any price, including injustice and powerlessness
in the face of mass crimes. It took two particularly bloody failures
of peacekeeping, in ex-Yugoslavia and in Rwanda, to ring in again
considerations of international justice.
In
ex-Yugoslavia, the UN peacekeepers were faced with massacres of
non-combatants and of the injured, forcible deportations and all
the other terror weapons in a war of ethnic cleansing. There was
no point, in such a war, in monitoring a front line or breaches
of a cease-fire. After that setback, in 1993, the Security Council
decided to create a tribunal which could punish those crimes that
UN soldiers on the spot were unable to prevent.
Unlike
the Nuremberg Tribunals, the international justice that the UN established
through its Tribunal for ex-Yugoslavia was the justice of the defeated.
The UN hoped to get back through law what had been lost to force
of arms.
The
court did, at the beginning, in fact operate as a legal spur to
help along the negotiation of peace accords rather than as any kind
of independent institution.
A year
later, in Rwanda, the UN had to face once more the consequences
of the passivity of its armed forces during the genocide of Rwandan
Tutsis from April to July 1994. There, again, the gulf between the
UNs peacekeeping ambitions and what it had been able to achieve
was terrible, and under pressure of public opinion the UN finally
took the decision to create a second ad hoc international
tribunal charged with passing judgement on those responsible for
the genocide.
So
we see that the arrival of law into international relations was
in the first instance the result of the repeated and bloody failure
of the peacekeeping and collective security measures put in place
after the Second World War through the UN and regional organisations.
Impunity, which had until then been presented as a guarantee of
security and a necessary preliminary condition to any peace agreement
and therefore as the height of political wisdom began
to look shaky. But the clamour in favour of due process has also
been the result of the high visibility in the media in recent years
of mass crimes committed against non-combatants. In wars against
civilians, journalists and humanitarian organisations found themselves
on the front line of crimes and of violence. As Western governments
and the UN struggled to give a reassuring picture of their devotion
to humanitarian action and peacekeeping, it was left to journalists
and the humanitarian organisations to let the gravity of the crimes
be known.
Whether
acting from humanitarian reasons or as war correspondents, they
shared long experience of conflict situations and of the train of
suffering and of horror that accompanies them. But in the face of
the dilemmas of UN crisis management they gradually became accustomed
to using the language of the jurisprudence of war to describe certain
criminal acts, and to refusing to allow them to be considered as
the natural adjuncts of conflict.
It
was along those lines that they began to describe the ethnic cleansing
and the war of terror in Bosnia. The large-scale use of mass rape
came out of the shadows and is today specifically identified in
the list of punishable crimes in wartime.
They
were also actively involved in the drive to recognise the genocide
in Rwanda as precisely that, at a time when the UN had minimised
the seriousness of what took place by referring to a humanitarian
crisis. Humanitarian crisis as opposed to genocide;
an enormous amount now rides on the choice of journalistic and juridical
words. That choice can make a large contribution to normalising
acts of violence, or on the other hand, to stigmatising a conflict
situation. The choice of words itself can allow or prevent the application
of humanitarian law. The expressions confrontation, for example,
and interracial mass killing do not come directly into the
legal definitions of war crimes or of genocide. The use of those
expressions therefore permits the avoidance of questions on the
precise nature of the crimes committed and on the responsibility
of those who commit them. In the same way, in Chechnya and elsewhere
the use of the terms terrorism and anti-terrorism
conceals the fact that it is an armed conflict that is taking place,
and so makes it possible to avoid the invocation of rules concerning
the respect of combatants or the protection of non-combatants, and
to avoid also the responsibilities that go with the use of arms
in cases of armed conflict.
The
creation of the two ad hoc tribunals and their operation
did in the end act as a classroom and practical lab for all apprentices
in humanitarian law, for those who had been content to write about
the aid missions while keeping in the dark the crimes that had given
rise to them. As the hearings progressed, sceptics were made aware
that it is not law itself that is weak or inappropriate. More often,
the political will of nations to use it is what is lacking. At the
same time, supporters had to learn that a tribunal is not a gladiatorial
arena where the forces of Good confront those of Evil, but represents
the complex reality of the facts, passed through a mesh of procedural
rules and rigorous juridical argument.
As
a result, the rules of law applicable in war came to be heard and
to be learnt, rules which had seemed excessively strange while no
court had given them the force of law, and which had seemed laughable
as long as the consequences of ignoring them could remain hidden.
And
so a crack was forced open in the fatalism that had surrounded war
crimes. Nevertheless, it remains right to ask, what precisely can
be meant by the words humanitarian law, war crimes, crimes against
humanity? Is it not part of the nature of war since time immemorial
that crimes get committed? Is it not a vain hope to try and regulate
mans destructive acts? Is it not misplaced idealism that makes
such a thing seem desirable? So many questions, which demonstrate
how guilty naivete can be when it conceals behind the surface of
common sense a profound ignorance of what the reality of war is
like.
Humanitarian
Law: Law in Wartime
With
the greatest respect to our contemporaries, the law of war is not
the product of a humanist conscience that has arisen in the twentieth
century. That particular century has rather distinguished itself
for crimes against humanity than for humanism. There have always
been people interested in the law of war. Neither pacifist nor particularly
holy, the law of war is the product of centuries of thought on all
continents and by all cultures on the way war is waged. Think only
of the codes of medieval knights-errant or Japanese Samurai. No
doubt such codes had their limits; still it is important to note
that every war has given rise to new attempts to codify a humanitarian
law. In every period it stems from the society in question seeking
to limit its own ability to create havoc.
The
point is to enclose armed force within limits, even if only symbolic
ones, which can act as a reminder that force is a means to an end
and not an end in itself. On those grounds, particular means of
waging war are forbidden, particular weapons, particular types of
attack against specified groups of people or places. The law of
war imposes taboos which act as guarantors of the survival of humanity
as such. The ban on acts of extermination or of barbarism is intended
to preserve not only the life of the victims but also the humanity
of the transgressors.
Such
an approach implies no judgement on the legitimacy of war. At the
most it makes the point that while warfare has always been an integral
part of international relations, it remains transitional and should
be conducted in such a way that it does not prevent a return to
peace. So the rules are there to see that that military operations
do not involve unnecessary or uncalled-for destruction of the target
under attack, do not cause irreversible damage and do not cause
suffering or death to non-combatants that is out of proportion to
a specific military advantage.
In
addition, limiting the means of destruction and forcing them to
correspond to specific legitimate military aims have always been
seen as a way of keeping troops under control by forcing them to
follow certain rules and a code of discipline. Medieval Europe knew
the scourge that persists even today of unpaid bands
of soldiers or mercenaries unrestrained by any authority and preventing
or hindering the return to peace even after the end of a conflict.
In
spite of the very large number of conventions that apply to the
law of war, all these rules are anchored around two principles.
- Imposing
some restriction on the ability to destroy, the choice of weapons,
and the means of waging war. Total war or war whose end is to
spread terror among a population is not legitimate. War should
not be conducted in such a way as to make a return to peace impossible,
nor should it cause irreversible damage to the environment or
to the population. There should always be some proportionate relation
between the ends sought and the means employed.
- Avoiding
unnecessary suffering and destruction. A requirement that rests
as much on military efficiency as on humanitarian motives. It
is obligatory to concentrate the force of war on military objectives
and to avoid uncontrolled overspill which would show lack of discipline
and also be a waste of military force. Thus people who are not
or who are no longer taking part in military action should be
spared and humanely treated. They must be able to receive aid
appropriate to their condition. Civil property and property essential
to the survival of the population should equally be spared and
should be given specific protection during an attack.
Around
these central principles each war has thrown up new rules to deal
with technological and strategic advances in warfare.
So
the corpus of humanitarian law that we have today is the rich inheritor
of a complex evolution. It is based upon the alliance between a
small number of basic principles and a very large number of specific
rules contained essentially in the following texts:
- The
various Declarations and Conventions of The Hague (1899, 1907,1954,
1957, 1970, 1973), which lay down the rules for the conduct of
hostilities.
- The
four Geneva Conventions of 1949. They took up and codified the
rules and customs of the laws of war that set the limits on warfare.
And they added rules dealing with the assistance to and protection
of non-combatants in time of war. Each one codifies the assistance
to a particular category of the population. The first three define
what shall happen to wounded, shipwrecked or captured prisoners
in wartime. The fourth codifies the protection of the civilian
population in time of international conflict.
-
The two Additional Protocols to the Geneva Conventions adopted
in 1977 to equalise and improve the protection granted to victims
of war. The first 1977 Protocol reinforces and completes the protection
afforded by the fourth Geneva Convention to victims of international
armed conflict. The second 1977 Protocol takes account of anti-colonial
wars and the civil wars which succeeded them. It is an addition
to the protection afforded by Common Article 3 of the four Geneva
Conventions for the benefit of victims of wars which are not international.
Some
writers have sought to divide humanitarian law into two separate
branches, the law of violence and the law of aid. The law of violence
would lay down the rules governing how to make war; it would be
principally illuminated by the Hague Conventions. The law of aid
would deal with protection of and aid to non-combatants in time
of war; for its part, it would be embodied in the Geneva Conventions.
Such a distinction, while theoretically appealing, is counter-productive
in practice. The Geneva Conventions and their Protocols are not,
in fact, limited to the codification of protection for civilians.
It is precisely in those texts that an important connection is established
between the vital need for the protection of civilians and the numerous
rules on the conduct of warfare. They limit and proscribe certain
means of waging war, define what will be identified as crimes of
war and establish the criminal responsibility of soldiers in the
matter of those crimes.
Modern
humanitarian law does have roots in the conception of inter-state
war developed in the nineteenth century, yet the two 1977 Protocols
have taken account of the development of war in the last fifty years.
One development in particular concerns the growing number of internal
conflicts and the pressing need to find protection for non-combatants
in the particular type of war in which it is harder to draw a distinction
between non-combatant and soldier. International humanitarian law
contains numerous juridical arrangements which allow it to evolve
and to meet the challenges created by new forms of armed violence.
In
order to achieve its ends, the law relies on a dynamic of deterring
of war crimes through making individuals criminally responsible,
and on a dynamic of preventing war crimes through the codification
of a right to aid, entrusted to humanitarian organisations. Such
an arrangement makes it imperative that humanitarian organisations
should not allow the rationale of aid at any price to outweigh the
rationale of identifying mass crimes.
The
importance of the law of war in foreign relations was underlined
by the agreement in Rome in July 1998 of the statute of the permanent
International Criminal Court. It has jurisdiction over those responsible
for acts of genocide, crimes against humanity and war crimes committed
after the adoption date of the statute. Unlike the two ad hoc tribunals,
it has jurisdiction only in those cases where the nations themselves
fail to bring charges against the perpetrators of such acts.
Given
the volume of crimes which remain as yet unpunished, any initial
moves towards justice run the risk of being seen to be selective
and doomed to failure. That was a criticism that was often levelled
at the two ad hoc tribunals, but it will lose a great deal of its
force with the International Criminal Court. This will in effect
mark the year zero of international justice, because its jurisdiction
is only over crimes yet to be committed, leaving us the task of
dealing with the bitterness resulting from impunity for crimes of
the past.
The
presence of an International Criminal Court will certainly not prevent
crimes from being committed in future conflicts. Justice is not
peace. It is merely an attempt to affirm once again the permanence
of the rules and to punish those who break them. The job to be undertaken
looks like one of those impossible tasks along the lines of emptying
the ocean with a spoon. But man has always overcome huge obstacles
when survival and self-interest were at stake. The International
Criminal Court has been established at The Hague, in the Netherlands.
Let us hope that, taking its cue from its host country, the court
will know how to build new dykes for the future, able to protect
man from mass crimes.
The
practical operation of the court, as that of the ad hoc tribunals,
will come up against formidable obstacles. To overcome them, journalists
and citizens will need to learn to identify and recognise war crimes
in order that they might at last be punished rather than overlooked.
It is because there seems to be some change in the way that international
society operates, leaving a little room for the operation of justice,
that a group of journalists the majority of whom are war
correspondents have come together to write this book. They
have been witnesses to these kinds of crimes for years, without
any hope of ever seeing them punished. By writing this book and
getting it to you they hope that you too will come to be associated
with the understanding of the great effort that still needs to be
made to understand and put a dyke around the most serious crimes
to confront mankind.
(This
article was first published in the French edition. It was translated
into English by Francis Hodgson.)

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