“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 UN’s 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 man’s 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.)