The Eleventh Annual Waldemar A. Solf Lecture: Then Changing Nature of the Laws of War

• Author: Her Excellency Judge Gabrielle Kirk Mcdonald
• Pages: 02

30 MILITARY LAW REVIEW [Vol. 156

THE ELEVENTH ANNUAL WALDEMAR A. SOLF LECTURE: THE CHANGING NATURE OF THE

LAWS OF WAR1

HER EXCELLENCY JUDGE GABRIELLE KIRK MCDONALD2

1. Introduction

   Thank you for inviting me here today to share with you some of my experiences as a Judge and now President of the International Criminal Tribunal for the former Yugoslavia. I must confess to having been a little daunted when I was initially informed that I would be expected to provide

   two hours of entertainment. Since the time has been reduced to one hour, I am certain that you and I will find this experience more enjoyable.

   I consider it to be a true honor to address you. Here at the Judge Advocate General's School, you are given an opportunity to learn about an area of the law that has been neglected and dormant for decades: the law of war. It is now alive again, being applied and developed, yet few people know about it. You are the exception. With the knowledge you are acquiring here, you will be in a position to make a significant contribution to the development of jurisprudence in this specialized field. I hope that you will find my remarks thought-provoking.

   The International Criminal Tribunal for the former Yugoslavia (ICTY) has competence to prosecute persons for serious violations of international humanitarian law.3 It is truly in its infancy and as such has not developed a comprehensive or complete set of rules governing the conduct of armed conflicts. Therefore, I will not give you today a "ten commandments of warfare." You have your military manuals and your rules of engagement and some of you have undoubtedly participated in drafting them. However, with the emergence of ad hoc criminal tribunals and the probability, if not certainty, that a permanent International Criminal Court will be established this year, those who engage in the conduct of warfare should be aware that their behavior may be judged by standards developed by the international community.

   Therefore, what I will do is to give you the benefit of our limited jurisprudence, which has addressed some of the issues pertaining to the laws of war and has changed in specific ways the normative framework of such law. When I say limited, I am referring to the fact that my fellow judges and I have only been called upon to consider a finite number of matters, for we have heard only one full trial and one sentencing procedure, the latter

   also being subject to review by our Appeals Chamber. The Appeals Chamber considered jurisdictional issues in a decision rendered prior to the commencement of that trial and heard an appeal of the sentencing ruling on both jurisdictional issues and the availability of duress as a complete defense to the killing of unarmed civilians. Today, I will focus on these issues and suggest possible consequences of these rulings.

2. The Cycle of Impunity

   I would first like to provide some background for my remarks. The twentieth century is best described as one of split personality: aspiration and actuality. The reality is that this century has been the bloodiest period in history. As improvements in communications and weapons technology have increased, the frequency and barbarity of systematic abuses of fundamental rights have likewise escalated, yet little has been done to address such abuses.

   A cursory study of any history book reveals that impunity is not a new phenomenon. However, the crystallization of the cycle of impunity is very much a twentieth century concept: perpetrators of massive human rights violations have often been supported, rather than held accountable, by the international community. The result has been to encourage repetition by the perpetrators and by those who are inspired by their impunity. Perhaps the most infamous example is Hitler's observation to his senior officers in 1939: "Who after all speaks today of the annihilation of the Armenians?"

   The voice of aspiration is the evolution among States from individual to common values. Beginning at the close of the nineteenth century, the community of nations, by limiting warfare, has first gradually and then regularly, recognized that individuals possess certain incontrovertible rights as members of the human family, and that States, acting individually and collectively, have both an interest and a duty to observe and to enforce those values. Such reasoning provided the basis for the creation of international organizations, beginning with the League of Nations and the United Nations and for undertakings such as the Nuremberg trials, the four Geneva Conventions of 1949, and for the subsequent human rights covenants, treaties, and mechanisms to enforce at national and supra-national levels the proclaimed rights.

   It is here that the effects of the split personality are discernible. The Armenians whom Hitler predicted would not be remembered are perhaps the best example. Between a half and one and a half million Armenians

   were interned and killed between 1915 and 1921.4 Most of the males were executed, the women and children were forced to march into the desert without food, shelter, or means to defend themselves against desert tribes-men. To date, this destruction of human life has been a non-event. Neither the victims of these acts have been acknowledged, nor the perpetrators brought to justice.

   That such suffering should be memorable only as an instructive (or should I say destructive) example is proof of how wide the chasm is between theory and reality. With few, but notable, exceptions, there has been no reckoning for the great majority of mass violations of human rights throughout this century; perpetrators have either not been identified, or have not been required to account for their crimes.

   The prevalence of such impunity has placed expediency above both principle and pragmatism.5 As recent events demonstrate, allowing perpetrators of such atrocities to remain in power not only puts the world's stamp of approval on impunity but allows the cycle to be repeated. By virtue of the stature of such perpetrators, it also sets a norm of behavior which their subordinates follow. These crimes are committed against individuals, yet they are also crimes against all humanity; there must be respect for the principles of equality of all human life and for the universal application of justice and of the law. To undertake to protect rights and then fail to prevent or to redress their abuse is both inconsistent and an affront to that universality. The law is abused and debased by such conduct.6

   The Tribunal is committed to the proposition that there will be no lasting peace without justice. As a practical matter, when victims are denied justice it may lead to acts of vengeance.7 The failure to identify and to attach responsibility to individuals results in the stigmatization of entire societies and the possibility of renewed conflict as in Rwanda, Burundi,

   and the former Yugoslavia where recent bloodshed has been ascribed to what are termed "ancient ethnic hatreds." Impunity is also a failure to acknowledge on a broader level that atrocities have been committed, which precludes societal reconstruction and reconciliation; perpetrators retain their power and influence, preventing the return of refugees and the reinstitution of a pluralistic society.

   These are not mere words; scholars estimate that over one hundred seventy million non-combatants have been killed in episodes of mass killings in the twentieth century. A further forty million combatants have died in conflicts. That is a total of over two hundred and ten million people, or one in every twenty five persons alive today-truly a figure that defies the imagination.

   This brings me to the theme of my talk today: war and the changing nature of the laws of war. Laws whose purpose is to govern the conduct of war should by definition be based on the way war itself is conducted. The primary coalescence of this law took place in two stages, around one hundred yeas ago, and in the aftermath of the Second World War, fifty years ago. In the intervening decades the way in which wars are fought has changed; we can no longer strictly characterize conflict as international or internal, as belligerent or insurgent.

   As the number of States increased dramatically, a variety of factors- a desire for economic development, the fears of minorities within the new States, discrimination by majority groups, interference, often military, in new States by former rulers-caused frequent bloodshed. These 'conflicts' were characterized by the involvement of various parties and by the perception of civilians as targets, by reason of their association with combatants, rather than as casualties. As the distinction between war and civil strife blurred, so too did that between non-combatant and combatant.

   As the Appeals Chamber stated, "a State-sovereignty-orientated approach has gradually been supplanted by a human-being orientated approach."8 Therefore, I submit that the dichotomy that characterizes

   international humanitarian law-whether the conflict is international or internal-is untenable at the end of the twentieth century.

3. The International Tribunals

   The ICTY has reflected this change in focus through its jurisprudence. Before going on to discuss this and related substantive issues, I would like to give you a brief sketch of the Tribunal, what it does and how it does it.

   The Security Council, having found that the widespread violations of international humanitarian law occurring within the former Yugoslavia constituted a threat to international peace and security, exercised its powers under Chapter VII of the Charter of the United Nations to establish the ICTY. As a subsidiary organ of the Council, all member States are required to cooperate fully with it and to comply with requests for assistance or with orders it issues.

   The ICTY is governed by its Statute, adopted by the Security Council following a report by the United Nations...