The Twilight of Sovereignty: War Crimes

Bosniak civilians, victims of the Srebrenica massacre (1995). This picture from 2007 reburial of some victims. (Wikipedia)

Laws of War

There have long been understandings about when it is right to go to war and how war, once launched, should be waged (Hindu Code of Manu, @200 BC). 

So, two streams here:

• When is it right to go to war (jus ad bellum)?

• How is it right to wage a war (jus in bello)?

 Long tradition in the West called "Just War Theory" developed by philosophers, lawyers, and theologians.

The idea of war was something Christianity needed to deal with because of the many emphases in Christianity on peace/love/forgiveness.  Commandment: Thou shalt not kill.  How could war then be justified?  Jesus, unlike Mohammad, was not a military leader.  Harder for Christianity than for Islam to reconcile beliefs with war.

Jus ad Bellum (Right to go to war)

• JUST CAUSE.  Wrong to launch a war for selfish reasons.  Need a legitimate cause to unleash war.  Most common just cause is self-defense.

• PROPER AUTHORITY.  Sovereign authority.  But, idea of whether that authority is legitimate or not raises questions.

• RIGHT INTENTION.  Not for self-interest or aggrandizement.  Fight to right the wrong (related to just cause).

• REASONABLE CHANCE OF SUCCESS.  Not just to see to the destruction of an entire community in a hopeless massacre.

• ENDS PROPORTIONAL TO MEANS. If invaded, can defend self to get the land taken back.  Can go further to assure that attack will not happen again.

• LAST RESORT.  War should not be the first resort but rather the last.

 Jus in Bello (Right conduct in war)

• DISCRIMINATION.  Who are the legitimate targets of war.  Considered unjust to attack non-combatants on purpose.

• PROPORTIONALITY.  How much force is morally appropriate.  Tempering level of force to proper response, no more.

• RIGHT INTENTION.  Fight without joy in killing, fight without cowboy bravado, understand that war is dreadful, should be a regretful participant. 

• NO MEANS MALA IN SE.  No use of means that are bad in and of themselves (poison gas, rape, torture).

• NO REPRISALS.  Because your enemy attacks your civilians (or violates any of the norms of right conduct) does not mean that, in a tit-for-tat fashion, you should as well.

Out of this just war tradition, laws of war eventually written down.

Grotius in his Law of War and Peace (1625) took the task of putting down those things that were understood at his time as being the "laws of war."  Drawing on religion, natural law, Roman and Greek history, and the customs of the nations of Europe, Grotius set down a number of features that are recognizable to us as "laws of war."

Respect neutrals.

Cannot make slaves out of those captured in war.

Right to make war rests in the lawful sovereign power of the state.

Respect truces and safe conducts.

 Later, understandings came to be codified through international agreements.

A couple of examples:

A.  Geneva Convention on the Amelioration of the Condition of the Wounded on the Field of Battle (also known as the Red Cross Convention) 1864

Article 1

Ambulances and military hospitals acknowledged to be neutral.

Article 6

Wounded and sick soldiers shall be entertained and taken care of, to whatever nation they may belong.

Article 7

A distinctive and uniform flag shall be adopted for hospitals, ambulances and evacuations. It must, on every occasion, be accompanied by the national flag. An arm-badge (brassard) shall also be allowed for individuals neutralized, but the delivery thereof shall be left to military authority.

The flag and the arm-badge shall bear a red cross on a white ground.

B.  Hague Convention with Respect to the Laws and Customs of War on Land (1899-Hague II)

Article 1

Belligerents wear a fixed distinctive emblem visible at a distance (uniform to identify combatants)

Belligerents carry their arms openly.

Article 4

Prisoners of war must be humanely treated.  Their property continues to belong to them.

 Implications of 1 and 4 for War on Terror

C.  Other Geneva Conventions

1928 - Geneva Protocol for the Prohibition of the Use in War of Asphyxiating Gas, and for Bacteriological Methods of Warfare

1929 - Convention Between the United States of America and Other Powers, Relating to Prisoners of War

1949 - Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field

1949 - Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea

1949 - Convention (III) Relative to the Treatment of Prisoners of War

Article 2: Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Article 3: 1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Article 4: A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Article 13: Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

Convention continues with housing, hygiene, medical care, exercise, religion, work, and other matters related to detention of POWs.

1949 - Convention (IV) Relative to the Protection of Civilian Persons in Time of War

1975 - Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (1972)

D.  London Agreement, 1945

Allies define areas in which criminal action will be pursued against defeated Axis powers.

    1) Crimes against peace (unlawfully starting a war, planning a "war of aggression")

    2) War crimes (violations of the laws and customs of war: murder, slave labor, wanton destruction of cities)

    3) Crimes against humanity ("murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial, or religious grounds in execution of or in connection with any crime . .. whether or not in violation of domestic law where perpetuated."  Allows the pursuit of leaders who put these types of crimes in motion, regardless of whether they personally committed the acts.)

Trials carried out by international military tribunal (precedent for later international bodies, acc: Snow).

Questions:

1) Why did these types of treaties and conventions begin to emerge?

• War becoming increasingly deadly due to improvements in military technology

• Communications improving, wider publics learning of the sufferings associated with war.

• Liberal ideas (liberalism) becoming more current. Idea that war can be regulated rationally and eventually stopped entirely.

• Horrific experience of World War II-genocide, mass murders in occupied areas.

2) Why the interest in war crimes trials in the 1990s/2000s after a long hiatus (since WWII Nuremberg and Tokyo)?

Sculls from the Rwandan genocide (Wikipedia)

• Humanitarian disasters of ethnic cleansing as in Bosnia/Rwanda.

• Global media that can transmit news of these disasters (CNN effect)

• Xenophobic nationalism that makes that type of violence legitimate (militia-type violence in Indonesia, Bosnia).

• Able to show more concern for human rights after the Cold War (not caught up in propaganda battle between the two sides)

• Early 1990s optimism that international action can be used to solve international problems (civil wars, humanitarian catastrophes, etc)

• Growing de facto acceptance of international intervention in internal affairs (Somalia precedent)

• Presence of UN on the scene in Bosnia (UNPROFOR 1992)--caught up in conflict. 

• Ad hoc trials create momentum for permanent court, what would become the International Criminal Court.

• Presence of NGOs to advocate and push governments to action.

3) Are war crimes just victors' justice?

4) Introduce International Criminal Court.  See the Rome Statute of the International Criminal Court.

• Created with Rome Statute 1998.

• Came into existence 2002.

• Court of last resort.

• Mandatory jurisdiction over war crimes, even if not technically illegal in the country where they occurred..

• Only if national processes do not occur or are not genuine (shielding the guilty/legal system collapsed).

• Try most serious international crimes: crimes against humanity, genocide, and war crimes.

• Cases come from states party and UN SC.

• Relationship agreement with the United Nations (cases from UN SC, reports to GA, but own funds, selection of prosecutor/judges).

5) How would a liberal feel about the court? How about a realist?

Many big countries not members: China, India, US, Indonesia, and Pakistan.

Half the world's population out.

6) What is the court presently doing?

http://www.icc-cpi.int/Menus/ICC  

http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/

7) What are the arguments in favor of an International Criminal Court (ICC)?

• Ad hoc trials difficult to start thus resulting in the selective application of justice

• Permanent court with staff, permanent monitoring for crimes of this kind

• Permanent court as a deterrent

• Some crimes so heinous need to be dealt with on the international level

• No domestic authority willing to prosecute, need to deal with on the international level

8) Should the US have signed on as part of the ICC?  (It did not.)

Yes

• Continuous movement toward empowering legal institutions, international institutions to solve world problems (post-WWII institutional development under US auspices)

• US world's most powerful democratic state. Absence strange from this legal arrangement.

• US absence contributes to international disorder.

• ICC can be a deterrent for crimes of this nature. US should be a part of that.

For an argument that President Obama should join the ICC, see Richard Cohen in the New York Times http://www.nytimes.com/2008/12/04/opinion/04Cohen.html (December 2008)

No

• Protect sovereignty, only US in the end, anarchical world system.

• "Henry Kissinger objection"--US leaders would be targeted.

• "US troops objection" (Bush administration "Article 98" agreements with states not to hand over US personnel to ICC).  If participating in PKOs, US forces, even if US not party to the treaty, could be subject (violates a core principle of international law that states have to agree to be bound by international treaties to be held to them). 

• If acceptance of jurisdiction were voluntary as with the International Court of Justice (to which states may take disputes), US would consider. Or if acceptance were through referral of cases by United Nations Security Council (where US has a veto).

• No checks on court. Prosecutor could do anything.

• Violation of Constitution, citizens guaranteed right to jury trial (but, extradite already).

• Crimes undefined (aggression) and list can be expanded infinitely.  (ICC not currently dealing with crime of aggression as states party have not agreed to a definition.)

• Takes power away from US. Currently, UN SC defines aggression. Now, will be defined by separate body over which US has no control.

• How deal with past war crimes?

• Worst states just wouldn't join.

9) If you were the representative of a European government (say, your country for the negotiation simulation), how would you feel about the US failure to join the court?

10) The court has indicted representatives of rebel movements like the Lords Resistance Army in Uganda and even a sitting head of state, President Omar al-Bashir of Sudan.  Should the court be able to indict/try a sitting head of state or the head of a rebel movement? Why or why not? Why are these controversial?

11) Is torture a war crime? Has the US engaged in torture in re: the wars against terrorism, in Iraq, or Afghanistan?  What has the US done (publicly known)?

• Rendition to countries which torture, waterboarding, Guantanamo Bay prison, Abu Ghraib

• From the UN Convention against Torture (UNCAT), torture is: "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

• Bush administration justified by saying that those detained in GWOT aren't representatives of states and so not entitled to protections of POW status, that "extreme methods of interrogation" do not constitute torture, and that the US may use "exceptional practices" to protect citizens.

Practice Essay Questions for the Final Exam

1) Write a memo to President Obama advising him on whether the United States should attempt to foster democracy in other countries. Be sure to consider how this might be done and why it would be done (the approaches to international relations will help you here).  Include specific countries covered in the course as examples in your argument.

2) Write a memo to President Obama advising him how to handle the conflict between the Israelis and the Palestinians.  Why/should the United States be involved in the conflict?  Be sure to consider the approaches to international relations as a way to frame your response.  If you find the US should have a role in finding a solution to the conflict, propose specific politically feasible compromises on outstanding issues.

More information on the Laws of War at http://avalon.law.yale.edu/subject_menus/lawwar.asp

Last updated: December 2, 2011.

Author: Paige Tan, tanp@uncw.edu