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By Peter Dyer
March 13, 2009
Editor's Note: The Washington Establishment is bristling at the idea that George W. Bush and his top aides should be held accountable for war crimes, even though earlier generations of U.S. leaders played key roles in the evolution of the law of war.
In this guest essay, journalist Peter Dyer retraces some of the turning points in how war crimes were defined and outlawed -- and the strange case of modern American rejectionism:
On June 13, 1899, one of the largest battles of the Philippine-American war took place on the southern outskirts of Manila.
After several hours of fierce fighting at the Zapote River Bridge, 5,000 poorly armed Philippine soldiers were outgunned and routed by 3,000 Americans.
Including guerrilla conflict and the Moro Rebellion this war dragged on for 14 years.
By 1913, between 4,000 and 5,000 American soldiers had died in the conflict. Estimates of Philippine military deaths run from 12,000 to 20,000.
There were massive civilian deaths from starvation and disease due to scorched-earth campaigns and forced relocation. Estimates of civilian deaths in the Philippine-American war range from 200,000 to 1,400,000.
As the battle of Zapote Bridge raged in 1899, the world’s first international peace conference was in full swing 10,000 kilometers away at The Hague in Holland.
On July 4, exactly three weeks after the carnage near Manila, Andrew White, the U.S. Ambassador to The Hague Peace Conference, laid a silver wreath at the tomb of Hugo Grotius, the 17th Century “father of international law.”
White said: “From this tomb of Grotius I seem to hear a message to go on with the work of strengthening peace and humanizing war.”
The contradiction involved in the effort to apply law to war – the ultimate expression of lawlessness – is so stark the enterprise sometimes seems by nature doomed to failure.
As Ambassador White unintentionally highlighted the gap between uplifting rhetoric and brutal reality, he could not have expressed more succinctly the enormous challenge inherent to the evolution of the law of war.
As White noted, Hugo Grotius was the first to express a comprehensive and detailed vision of the regulation of armed conflict by international law.
In De jure belli ac pacis libri tres (On the Law of War and Peace: Three books) 1625, heproposed that “there is a common law of nations which is valid alike for war.”
Conduct discussed in De Jure ranges from fundamentals such as “The Right to Kill in a Lawful War” where he advises “moderation in laying waste and similar things” through hostage-taking and care; truces; “ruses and falsehoods” and the right of safe passage in a section on good faith between enemies, even including safe conduct of baggage.
There was plenty of war, but few subsequent advances in the law of war until the mid 19th Century.
In 1859, Swiss businessman Jean Henri Dunant witnessed the gruesome aftermath of the savage battle at Solferino in present day northern Italy.
His efforts to establish an international organization for relief and care of those wounded in battle, regardless of nationality, led to the establishment of the International Red Cross.
This was formalized on Aug. 22, 1864, by the first international humanitarian law treaty – the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.
While the Red Cross was emerging out of European conflict, the American Civil War gave rise to the Lieber Code.
In April 1863, Columbia University Professor Francis Lieber prepared “Instructions for the Government of Armies of the United States in the Field” at the request of Union General Henry Halleck.
The Lieber Code was essentially a working manual that aimed to provide a practical framework for day-to-day ethical conduct of war. In this sense, its focus was considerably broader than that of the Geneva Convention.
Unlike the Geneva Convention, the Lieber Code prescribed specific punishment for violations, including death.
And although it allowed starvation of unarmed belligerents (Article 17) the Lieber Code was noted for its general ethical treatment of civilian populations and prisoners of war.
It seems highly likely that Lieber, a scholar of law and ethics, born and educated in Germany, was influenced by the work of Grotius.
For example, Article 40 refers to “that branch of the law of nature and nations which is called the law and usages of war on land.”
The Hague Conventions of 1899 and 1907 were the first international agreements to specifically prohibit a wide range of weapons and tactics in war.
Poisons – especially poison gas – were forbidden. “Arms, projectiles, or material of a nature to cause superfluous injury”; “bullets which expand or flatten easily in the human body” and projectiles and explosives launched from balloons also made the list.
As Ambassador White noted at the time, the work at The Hague built on foundations laid by Grotius. It is likely that the Lieber Code played a role as well.
Humane treatment of prisoners of war was a priority. Specific situations and tactics were either permitted (such as ruses) or prohibited (such as pillage).
In addition The Hague Conventions specifically incorporated the 1864 Geneva Convention.
The Hague Conventions seem to have brought together and developed further the bulk of the most enduring contemporary principles of the law of war. The result was a significant advance in international law.
One important principle, however, was absent: Professor Lieber’s perspective of violations as crimes with corresponding punishments.
Because the legal authority of the Conventions was seen as flowing from their status as treaties between states, the only responsibility for treaty violations on the agenda was the collective responsibility of the State.
So, despite the terrible personal and communal violence that was the subject matter of the Conventions, the only remedies envisioned were similar to those provided in contract law: mediation, commissions of inquiry and a permanent court of arbitration.
Given the issues of state sovereignty arising from a multinational pact, this is not surprising. But even with the remedies available, consistent and fair enforcement depended entirely on the willingness of the most powerful nations to submit to the will of those less powerful.
In other words, there were no teeth. It was easy for powerful nations to proclaim dedication to the rule of law and to the highest humanitarian principles, whatever the reality.
And no persons of any rank, low or high, were to be held responsible for any of the outrages The Hague Conventions aspired to prevent.
Less than seven years after the 1907 Hague Convention was signed, the industrial slaughter of World War I began.
The shock of 15 million military and civilian deaths undoubtedly contributed to what was probably the first use of the language of criminal law in the international law of war.
Articles 227 of the 1919 Versailles Treaty, which formally ended the war, called for no less than the arrest and public trial before an international tribunal of the defeated German Emperor, Kaiser Wilhelm II, for “a supreme offence against international morality and the sanctity of treaties.” and to “fix the punishment which it considers should be imposed.”
In addition, Article 228 called for the trial “before military tribunals of persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law.”
However, Holland, home of The Hague Conventions, refused to extradite the Kaiser and he was never tried. Although a few Germans of lesser rank were eventually tried under Article 228 by German courts in Leipzig, the process was crippled by controversy among Allied observers and widespread, vehement German opposition.
A good portion of this controversy sprang from the radically new idea of individual criminal responsibility for acts of war.
Ten years after the fighting stopped the trauma of the “war to end all wars” was still fresh. In 1928, 15 nations, including Germany, signed the General Treaty for the Renunciation of War (Kellogg-Briand Pact or Paris Pact).
The Paris Pact was short, clear and unqualified. It condemned “recourse to war for the solution of international controversies.”
Although there were no sanctions provided for violation, the treaty can be seen as perhaps the first significant effort to go beyond various acts of war and address the source of all such acts: aggressive war.
Seventeen years later in 1945, 50 million more deaths from another World War brought a momentous leap in law.
Aggressive war (along with war crimes and crimes against the peace) was formally criminalized, with individual responsibility, in the charter of the first international criminal tribunal – the International Military Tribunal at Nuremberg, Germany.
Twenty-two of the most powerful Nazis were tried. Nineteen were convicted of one or more of the IMT Charter crimes. Twelve received death sentences.
Delivered on Oct. 1, 1946, the Tribunal judgment invoked both the Paris Pact and the 1907 Hague Convention, essentially establishing violations of these treaties as crimes.
“In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law.”
World War II and Nuremberg provided a catalyst for a few years of accelerated development of the law of war.
Just 10 weeks after the Nuremberg judgment the United Nations General Assembly passed Resolution 95(1) “Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal.”
The next year, the General Assembly adopted resolution 174 (II) establishing the International Law Commission (ILC) for the “promotion of the progressive development of international law and its codification.”
In December 1948, the General Assembly passed Resolution 260 (III), the Genocide Convention, recognizing that genocide is an international crime and providing a precise definition.
In Part B of Res. 260 the General Assembly invited the ILC “to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide, or other crimes over which jurisdictions will be conferred upon that organ by international conventions.”
Eight months later, in August 1949, the international community modified the Geneva Convention of 1864 and significantly expanded international humanitarian law, adopting three more conventions relating to those wounded in war at sea, prisoners of war and civilians.
The Modern Era
Two protocols protecting victims of international and national conflicts were added in 1977.
Today these conventions provide the foundation of international humanitarian law.
The efforts of the International Law Commission and others to establish an “international judicial organ” were essentially frozen during the Cold War.
Forty-one years after UNGA Res 260, the General Assembly asked the ILC to “address the question of establishing an international criminal court” (Res 44/39, 1989) with a specific purpose: interdicting international drug trade.
During the 1990s, the horrors of war crimes and genocide in Yugoslavia and Rwanda resulted in the establishment of temporary international criminal tribunals.
The need for a permanent and broadly focused International Criminal Court as envisioned in 1948, became more urgent.
Eventually, on July 17, 1998, the Statute of the International Criminal Court was signed in Rome. Ironically, the United States, which led the way at Nuremberg, voted against the ICC Charter, along with China, Libya, Iraq, Israel, Qatar and Yemen.
Resistance was especially strong in the U.S. Senate where Sen. Jesse Helms, R-North Carolina, declared the treaty “will be dead on arrival when it reaches the Foreign Relations Committee. Let us close the casket right now.”
Since then, the United States has not only refused to participate but has actively resisted and attempted to undermine the ICC.
Since the time of Hugo Grotius, there has been considerable progress in the evolution of the law of war. However, 110 years after the first Hague Convention and the Battle of Zapote Bridge, the problem of enforcement ensures that the stark contrast between noble words and savage violence is still very much with us.
Although 139 nations have signed the Rome Statute and 108 are full parties, without the support of the world’s richest and most powerful country, the ICC faces an uphill struggle.
In the meantime, as Michael Scharf pointed out to Sen. Helms: “We have lived in a golden age of impunity, where a person stands a much better chance of being tried for taking a single life than for killing ten thousand or a million.”
The law of war will continue to evolve because there is no civilized alternative.
As Hugo Grotius wrote nearly four centuries ago: “For when treaties have been done away with it will follow that all peoples will wage unending wars with one another.”
Peter Dyer is a freelance journalist who moved with his wife from California to New Zealand in 2004. He can be reached at firstname.lastname@example.org .
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