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No one would consider constructing a building without first checking whether its foundations are sound. It is no different with international humanitarian law.
It is useful to examine the difficulties and even failures of international humanitarian law encountered in practice. But before beginning work on a renewal or development of the law, one must be sure the undertaking can be withstood by the foundations and that it will not call into question the very principles on which the law is founded. Any examination of international humanitarian law will have to be carried out in a very open-minded manner — one that rules out nothing, not even the possibility of scrapping the law entirely and constructing a new edifice on different foundations, if one were convinced that it was not possible to incorporate the changes needed into the law as it stands. To carry out such an examination, it is essential to analyse not only what works well and what works badly but also the underlying reasons for humanitarian law's successes and failures.
To sketch out the way forward, I will begin by recalling the pillars on which international humanitarian law stands. I will then look at various shortcomings in the law and consider from whence they arise, whether they justify its amendment, and whether any such amendment is possible without undermining the law's foundations. I will conclude by setting out what solutions may be found in humanitarian law itself, the limits of that law and the consequences that must be recognised in terms of international law and its institutions.
The need to enforce and further develop international legal protection after 11 September 2001 has been discussed in prominent fora before. A wide range of issues (self-defence, humanitarian law, human rights, national laws and regulations, criminal sanctions) must be considered in this context. Different phases of application of the law (international and non-international armed conflict, peace enforcement, post-conflict peace building, etc.) are affected. Misconceptions have been propagated at the highest government levels and have created new problems rather than solving existing ones.
Among expert observers, such developments may cause feelings of déjà vu. In the years after the adoption of the 1977 Additional Protocols, when one might have expected that all efforts would be taken to accelerate the ratification of these new instruments and ensure respect for their provisions, Protocol I was criticised as being in the service of terror, an allegation that won certain influence although it was promptly and convincingly refuted. Concerns expressed more recently that the application of certain rules of humanitarian law might impede the fight against terrorism may stem from similar ways of thinking. They have made it necessary to explicate in detail that terrorist acts when committed during armed conflict are serious violations of humanitarian law, prohibited without any exception in the Geneva Conventions, their Additional Protocols and other international treaties and customary law, and that only scrupulous respect for international humanitarian law in military campaigns helps to strengthen the determination of all members of the international community to abide by the law in all circumstances.
The war in Iraq thrust international law into the global spotlight as has no conflict since Vietnam. Jus ad bellum debates grew increasingly heated as the launch of hostilities in March 2003 approached. Did Security Council resolution 1441 authorise Operation Iraqi Freedom (hereafter, OIF)? Perhaps the attack was an exercise of self-defence against state-support to terrorism. Did the purported doctrine of ‘preemptive self-defence’, enunciated in the 2002 US National Security Strategy, offer a legal justification? What of humanitarian intervention, democratisation or regime change? Or was the sole normative basis the one formally asserted by the United States and United Kingdom — breach of a ceasefire set forth in a Security Council resolution adopted a dozen years earlier? The jus ad bellum brouhaha resurfaced in April 2005 with the revelation that British Attorney General Lord Goldsmith had issued a classified memorandum on the legality of hostilities that differed from the public justification he proffered, with OIF days away, just over a week later.
Law without facts makes a dull subject, and it is one of the peculiarities of international humanitarian law (IHL) that many of the interesting facts are classified or unavailable to those outside the military. This partially explains why IHL until recently has been the redoubt of military lawyers and the International Committee of the Red Cross. That situation is changing, for many reasons.
Popular interest in IHL is growing due to concern with responses to terrorism, interventionism (humanitarian and otherwise) and international justice. Civil society organisations have successfully campaigned for both new standards, such as the Landmines Convention, as well as new mechanisms of enforcement, such as the ad hoc international criminal tribunals and the International Criminal Court. At the same time, technology and globalisation have facilitated both real-time battlefront reporting and post-battle analysis by civilians.
When deciding to go to war against Iraq in 2003 it had been intended by the Coalition states from the outset that the regime of Saddam Hussein would be deposed. It was believed, however, that there would be close engagement with a surviving Iraqi administrative capacity and perhaps a successor government. Consequently, it was expected that there would not be a need for much ‘post conflict’ administrative effort beyond the provision of support to a largely intact infrastructure, remaining functionaries and perhaps some humanitarian relief. Instead, Coalition forces faced the greatest post-conflict administrative challenge since World War II and the greatest public security challenge any force has ever had to manage.
Of all the calamities that can befall a people or a state, civil war has always been considered one of the worst. Setting son against father, brother against brother and neighbour against neighbour, civil war is a merciless struggle that is not limited to the clash of armed forces. Characterised by denunciations, acts of vengeance and the settling of scores, civil war unleashes the built-up tension and hatred within a society.
There has been a significant amount of discussion on the applicability of international humanitarian law (IHL) to United Nations forces (hereafter, UN forces), and the practice of the UN and states on the matter has gradually developed over the years. Now, there is substantial evidence that IHL is applicable to UN forces. However, as alleged misconduct of UN forces has been increasingly reported, including potential violations of IHL, the legal consequences of such violations have come into question. Thus, this article will not only review the recent developments and remaining issues on the applicability of IHL to UN forces but will also discuss the responsibility of the UN and states for violations of IHL by UN troops as well as individual criminal responsibility of UN troops. The article begins by recalling the conditions in which UN forces have been conducting their activities.
Nineteen armed conflicts took place in 2003, but in terms of political, media, and scholarly attention there was really only one that mattered: Iraq. It dominated the headlines and aroused passions worldwide, particularly amongst members of civil society, on a scale unseen since the Vietnam War. The military campaign itself followed on some of the most emotional and divisive debates ever seen at the Security Council, which were interpreted by many as exposing not so much the cracks but the fault lines in the system of collective security, and the sharp divide between those states committed to it — and the Security Council's role as the exclusive decision-maker in matters pertaining to the use of force — and thelone rangers.
For the International Criminal Court (ICC) 2003 was a crucial year — its first as a functioning institution. With the coming into force of its Statute in July 2002, 2003 was spent establishing the infrastructure and procedures according to which the ICC will function. The ICC also made progress in establishing its four organs: the Chambers, the Presidency, the Office of the Prosecutor and the Registry.
In an address to the United Nations General Assembly on 7 November 1995, Antonio Cassese, then President of the International Criminal Tribunal for the former Yugoslavia (ICTY), highlighted the difficulty of enforcing international criminal justice in the absence of state cooperation. To emphasise his point, Cassese offered an apt — if somewhat inelegant — analogy: he likened the Tribunal to a limbless giant, dependent on the ‘artificial limbs’ of the enforcement agencies of UN Member States. First among the various areas cited by Cassese where the Tribunal depended upon state cooperation was the arrest of suspected criminals living within the borders of those states. Over nine years later the problem remained acute. In a 23 November 2004 address to the Security Council, the Prosecutor of the ICTY, Carla Del Ponte, highlighted failures on the part of the governments of Croatia, Serbia and Montenegro and Bosnia and Herzegovina to arrest indictees and turn them over to the Tribunal. In particular, she mentioned the lack of cooperation by Belgrade as ‘the single most important obstacle faced by the Tribunal’ in the implementation of its strategy to complete its trials by the end of 2008.
Efforts to regulate warfare, including the use of particular weapons, have a long history, dating back, according to some scholars, thousands of years. But international codification of the rules of war in binding multilateral legal instruments only began in the second half of the nineteenth century. Among the first such efforts was one devoted to the prohibition of the use of a particular weapon in wartime. The St. Petersburg Declaration of 1868 on exploding bullets banned the use of explosive projectiles under 400 grammes in weight and is generally recognised as constituting the first significant international instrument prohibiting a specific weapon. It also incorporated into the conventional law of armed conflict the customary principle prohibiting the use of weapons ‘of a nature to cause superfluous injury or unnecessary suffering’ — a tenet of international humanitarian law and a touchstone for many important international agreements on the use of weapons that have since followed, including the Hague Declaration of 1899 on expanding bullets, the Geneva Gas Protocol of 1925 and, most recently, the United Nations Convention on Conventional Weapons of 1980 (hereafter, CCW).
It is commonplace to say that we live in an age of instantaneous information and communication. During the occupation of Iraq by the United States and its allies, pictures taken in the Abu Ghraib prison near Baghdad and showing members of the US Armed Forces and Iraqi detainees in disgraceful circumstances could be seen within minutes all over the world. The message carried by those pictures changed the discourse on the Iraq war of 2003–2004.
We have become used to instant information through real-time reporting on events occurring in the various corners of the world. This flow of news is taken for granted, and we expect our favourite radio or TV station to deliver the latest news at every moment of the day. Seeing pictures taken inside a well-guarded prison in a war a few thousand kilometres away is no longer a surprise.
Wars have always attracted writers eager to report on what happens when men fight against men. Some of these reports have become immortal works of world literature. Some may even have influenced the course of history. Only a few memorable examples are Homer's epic poem on the fall of Troy, Julius Caesar's De bello gallico or the Indian epic Mahabharata. On a different level, who knows that Winston Churchill, at the age of 25, was a war correspondent reporting from the Boer War in 1899?
An accidental war correspondent deserves to be mentioned here, Henry Dunant, who happened to witness the aftermath of a particularly murderous battle, the Battle of Solferino in northern Italy in 1859.
The protection of refugees in international law is always a complex mix of legal obligations and policy considerations. Unfortunately, the reaction against refugees post September 11 has ignored both the facts and the pre-existing law.
This paper addresses how refugees have fared in international and domestic law post September 11 2001. Given that a refugee, by definition, has lost the protection of her/his state, there is no body, other than the United Nations High Commission for Refugees (UNHCR), which is able to respond in the face of unjustified restrictions on the rights accorded to this most vulnerable group.
The first thing to note is that none of the people involved in the events of September 11 was a refugee. Equally, immediately after the events of September 11, approximately 100,000 Afghans fled Kabul fearing revenge attacks by the United States. At the same time, under pressure from Pakistan and Iran, the United Nations High Commission for Refugees facilitated the repatriation of 215,000 Afghan refugees.
On 11 September 2001 three hijacked commercial airliners were crashed into the World Trade Centre in New York, the Pentagon in Virginia, and a field in Western Pennsylvania, killing approximately 3,000 people. The unprecedented magnitude of these terrorist attacks led the United States government to assert that the acts were not just criminal acts but ‘acts of war’. This characterisation is more than just a question of semantics. Labeling the September 11 attacks as ‘acts of war’ gives the US government the basis to respond militarily — a response that is significantly different to traditional law enforcement, both legally and practically. Another significant difference is that prosecution of alleged perpetrators can occur under the laws of war (or international humanitarian law), as opposed to domestic or international criminal law.
The historic International Criminal Court Statute has come into force against a backdrop of massive atrocities being committed in different parts of the world. Looking at the situations currently under investigation by the Office of the Prosecutor, in the Democratic Republic of the Congo it is estimated that 3.5 million children, women and men have died as a result of the conflict in that country, while in Uganda, the brutal conflict between the rebel Lord's Resistance Army (LRA) and government forces has been characterised by abduction of children to join LRA contingents and for sexual enslavement and large-scale displacement of civilians, among other heinous acts. It is likely that future situations to be dealt with by the Court will similarly impact on hundreds of thousands of victims.
The scale of these atrocities presents a unique challenge for the Court. Thousands of alleged perpetrators may fall within its jurisdiction, although for optimal efficiency and impact the Office of the Prosecutor will need to find a way to focus on the responsibility of key individuals, but without being perceived as detracting from the complexities of any given situation.
The Eritrea-Ethiopia Claims Commission (EECC) is one of a pair of commissions established by the Peace Agreement of 12 December 2000 that ended a costly war between Ethiopia and Eritrea that had begun in May 1998. That war, which was sparked by disputes over the countries' common border, caused much damage and many thousands of casualties on each side. It also proved terribly expensive, as each party spent large amounts of money and incurred large debts to acquire modern weapons of war and the related munitions. Given the causes and the consequences of the war, it was, perhaps, not surprising that the Peace Agreement created a boundary commission to determine for the parties a common boundary that they would be obliged to accept, and a claims commission to resolve the claims of each party against the other for any acts arising out of the war that injured that party, including injury to its nationals, and that were in violation of international law.
However understandable in the context of the war, the creation of an international commission charged with determining which actions of the parties to a war violated the applicable international law is a rare event. While we have seen very recently the establishment of international criminal tribunals for the punishment of war crimes by individuals, we have not seen the creation of any other international tribunal that has the task of deciding the legal responsibility of a state for violations of the laws of war.