Shortly after three planes went into three buildings on September 11, 2001 the chief law enforcement officer of the US, Attorney GeneralAlbert Gonzalez declared that the Geneva conventions were quite out dated. This amazing and naïve statement followed a similar declaration by then President George W. Bushthat the “rules have changed” related to fighting terrorists. These statements set off a series of policy missteps that led to Guantanamo, Abu Ghraib, Bagram AFB, secret prisons in Eastern Europe and North Africa and the perceived loss of the moral high-ground by the US related to conflict in the 21st century.
No longer that “bright and shining city on the hill” the US continues to limp into the new century not as a leader regarding the international rule of law, but only as a participant in a series of kaleidoscopic events that seem to challenge the very foundation of the rule of law, particularly the laws of armed conflict. At no time is the rule of law more needed than now in this apparent “age of extremes”. Do the rules really need to be changed?
A recent trial shows those rules do not need to be changed, just followed. Four Polish soldiers were found not to have committed war crimes in an incident in 2007 where civilians were killed. Poland had been part of theNATO led coalition in Afghanistan for 12 years. A military court found that they did not intentionally target civilians, a war crime if proven. The military judges did find them negligent in following orders, a dereliction of duty type offense in the US military. The press seemed to take this as some type of failed judgement. I consider it an affirmation that the laws of armed conflict are alive, vibrant and being used in the way contemplated by the drafters and followed for over 60 years by nations involved in conflict situations.
The laws of armed conflict state that no civilians can be intentionally targeted. The law recognizes that in the heat of combat there are collateral effects to the battle to include civilian deaths excusable in law. Additionally the laws of armed conflict require that all signatories to the Geneva Conventions, when faced with allegations of a war crime investigate, prosecute (under their domestic system of justice) or hand the alleged perpetrators over to a party to the conventions willing to prosecute for the war crime.
The Poles appear to have followed not only the spirit but the letter of the law. They investigated the civilian deaths and charged the four soldiers with war crimes under Polish domestic law. The outcome was decided in a fair and open trial. The fact that it was not proven that they intentionally targeted those civilians was up to the trier of fact in that domestic prosecution. Hence the outcome as reported.
This shows that the rules are working and they do not have to be changed. The NATO coalition followed thelaws of armed conflict. The coalition does investigate and hand over perpetrators to member domestic systems for resolution. Though not perfect, the record does show that coalition forces do hold accountable members of their armed forces who violate the laws of armed conflict in trials and courts-martial.
A further review of the record shows that in combat the coalition followed the law despite the fact that theTaliban and various terrorist groups ignored the law in almost all instances to include the intentional killing of civilians. This is another important tenant of the laws of armed conflict that despite the fact that the other side ignores the law signatories are bound to follow the laws of armed conflict.
It is not intended for this opinion to gloss over and ignore other acts committed by the coalition, particularly the US, as it related to torture and other inhumane acts. These too violate the rule of law at many levels. As noted before, the statements made by the Bush administration led the US down a very slippery slope to where they were operating at the same level as the Taliban and others operating in the extreme related to torture.
In this apparent age of extremes we should continue to fight extremism using the rule of law, such as the laws of armed conflict and a system of laws that are practical and flexible enough to ensure that the battlefield is governed by rules that protect and regulate a given condition—war and conflict. The laws of armed conflict minimize the horror and allow for a return to possible stability at its conclusion. As stated by Albert Einstein decades ago: As long as there are sovereign nations possessing great power, war is inevitable.
David M. Crane received his JD from Syracuse University. He is a Contributing Editor for JURIST and the former Chief Prosecutor, Special Court for Sierra Leone 2002-2005.
Suggested citation: David M. Crane The Rules Have Not Changed Regarding Armed Conflict, JURIST – Academic Commentary, Mar. 30, 2015, http://jurist.org/forum/2015/03/david-crane-armed-conflict.php