The Rules Have Not Changed Regarding Armed Conflict

Monday 30 March 2015 at 3:21 PM ET
JURIST Guest Columnist David M. Crane of Syracuse University College of Law discusses enforcing the laws of armed conflict in an age of extremes…
soldiers

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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

ISIS Sets Booby-Traps in Attempt to Halt Iraqi Advance on Tikrit

By Kathryn Maureen Ryan
Impunity Watch, Managing Editor

BAGHDAD, Iraq – Iraqi forces fighting to liberate the strategic city of Tikrit from the Islamic State of Iraq and Levant (ISIS) have reportedly found that ISIS forces have booby-trapped, slowing the advance of Iraqi soldiers who have been supported by U.S airstrikes as well as Iranian fighters. “A rapid advance in a city where the ground is littered with bombs and booby-traps is too tough to achieve,” said the Tikrit Mayor Osama al-Tikriti. The use of Bobby-Traps, traps that target objects or persons with special protection under international humanitarian law or traps that are likely to attract civilians are strictly prohibited under international humanitarian law.

Iraqi Security Forces check their weapons in the embattled city of Tikrit on March 28, 2015. (Photo courtesy of Reuters)

The security forces and Shia militias, who provided the largest number of fighters, began their offensive against ISIS on 2 March but stopped their operations temporarily after two weeks of fighting after suffering heavy casualties and tensions and seeing high tensions between the Iraqi government and with US officials over Iran’s prominent role in the fight to liberate Tikrit. Ultimately, the United States insisted on the pullback of the Iranian backed Militia as a precondition for involvement in airstrikes, General Lloyd Austin of the United States said. “Once those conditions were met – which included Shia militia not being involved – then we were able to proceed,” he told lawmakers.

Security forces said on Sunday that they were slowly advancing into Tikrit’s western area with the help of US-led airstrikes despite Shia militias boycotting the offensive. “There is some resistance from the enemy, but it’s mainly due to the booby-traps set up on the roads, in the houses, shops and government facilities,” Brigadier-General Thamer Mohamed said. “As you can see, our units are advancing and we have air support.” On Sunday, Iraqi forces attempted to clear a path through booby-trapped areas infiltrate Tikrit from the southern district of Shisheen, however the militants used anti-tank missiles to destroy a bulldozer being used by the Iraqi military create a safer path around booby-trapped roads, an official said.

Coalition airstrikes led by the United States against Islamic State of Iraq and the Levant (ISIS) targets in Tikrit began late last Wednesday. According to General Lloyd Austin of the United States, the Iranian-backed Shia militia in Iraq which has led an operation against the Islamic State of Iraq and the Levant in the strategic city of Tikrit is no longer leading the operation to recapture the city. General Austin, head of United States’ Central Command, said the withdrawal was a precondition for American-led airstrikes. However, even as airstrikes open the door for Iraqi forces to enter the city these strikes do little to protect Iraqi forces and civilians from the dangers they have found in and around the booby-trapped city.

For more information please see:

Al Jazeera – Booby-Traps Halt Iraqi Forces’ Advance On Tikrit – 30 March 2015

Reuters – Booby-Traps Halt Iraqi Forces’ Advance On Tikrit – 30 March 2015

BBC News – Iraq Crisis: Tikrit Push ‘No Longer Led By Shia Militia’ – 30 March 2015

The Washington Post – U.S. Forces Begin Airstrikes In Tikrit, Where Iran-Backed Militias Are In Lead – 25 March 2015

Guantánamo’s Charade of Justice By MORRIS D. DAVIS

How Will Syria’s Assad Be Held Accountable For Crimes Against Humanity?

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Posted: Updated:

Every week, The WorldPost asks an expert to shed light on a topic driving headlines around the world. Today, we speak with David Crane, a Syracuse University professor involved in the impartial effort to catalog Syrian war crimes.

The conflict in Syria has entered its fifth year. The death toll tops 220,000 and the humanitarian situation continues to deteriorate. In addition to fighting among rebel groups, Islamic State militants and government forces, there is proof of systemic killing of detainees by the regime of Syrian President Bashar Assad.

The most tangible and shocking evidence of mass murder was presented last year in a report that included thousands of photographs smuggled out of Syria by a former military policeman who has been dubbed “Caesar.” A report on these photos by top international lawyers and forensic scientists verified his account, and said there had been “industrial-scale” killing.

One of the authors of the Caesar report was David Crane, who acted as chief prosecutor of the Special Court for Sierra Leone that indicted Charles Taylor, the former Liberian president now imprisoned for war crimes. Crane is now a professor at Syracuse University, where he is involved in the Syrian Accountability Project, an impartial body documenting crimes in the Syrian war. The WorldPost spoke with Crane about his work and the future of efforts to hold those responsible accountable.

Can you speak to the scope of the crimes and the evidence that you’ve witnessed?

The international crimes, which are still going on, are war crimes and crimes against humanity. We see no evidence of genocide, which is a specific-intent-crime, and you literally have to have a smoking gun to prove that. But war crimes and crimes against humanity are being committed across the board by all parties.

When I co-authored the Caesar report, we highlighted to the world that the Assad regime has been conducting a long-term industrialized killing of their own citizens for decades. The pictures coming out from Caesar — that he smuggled out in his shoe — these are high-definition, forensic photos that he took as a military forensic photographer of the deceased. The good thing about the photos is that they’re all numbered and verifiable, and we have the very person who took the photos able to verify them.

War crimes and crimes against humanity are being committed across the board by all parties.

We have Caesar safely ensconced in a country that is protecting him. We were able this time last year to capture as much as 50 percent of the original photos and put them in an evidence locker. In addition, we have a chain of custody, so we can establish legally the verifiable aspects of all these horrific photos.

Something that was mentioned in your report was an estimate of 11,000 detainees that were killed.

That’s correct. How we established that was we had a great team of very experienced individuals: two former chief prosecutors, the lead prosecutor for the [Slobodan] Milosevic case, chief forensic pathologist, forensic anthropologist and a photograph expert. We were able to determine scientifically that these 54,000 photographs probably showed about 11,000 deceased.

The scariest part about this was that this was only from three detention facilities in and around Damascus, but the Syrian Accountability Project has found as many as 52 detention facilities. So what we may be looking at is the tip of a horrific iceberg.

We have no idea how bad this is and I suspect that it’s going to be far worse than imagined.

We have no idea how bad this is and I suspect that it’s going to be far worse than imagined.

How does the Syrian Accountability Project get its evidence?

We get our data from many sources. Open-source information gives us a sense of what’s happening, and then we also have agents in place on scene, including human rights and victims groups that are reporting directly to us.

Our crime base matrix is now over 2,100 pages of Excel spreadsheet. The way we organize it is by listing the time, date, incident and alleged perpetrator. We also list specific violations of the Geneva Convention and specific violations of the Rome Statute. In addition, we translated the Syrian criminal code into English and list specific violations of Syrian law as well. This allows a future local or international prosecutor to take this and review which crimes they may charge or investigate.

It’s fascinating, 10 years ago we didn’t have any of this concept of social media. We used to have to go out and get all our evidence the old-fashioned way. Now it’s gone completely in reverse, and there is so much information that it’s a tsunami. In most cases, it’s important information, but useless in court due to legal issues such as verification and chain of custody. Our challenge now is building a case against all these parties, and we’re very careful about not putting anything on the crime base matrix unless it’s verifiable two or three times over.

Is there a precedent for how social media might be used in court?

The information that’s coming on social media is just information, it’s not evidence yet. It becomes evidence when it’s verifiable. We’re confronted with a new phenomenon, and the legal rules of evidence require us to do certain things to verify it. It can be done, but it’s just a function of having to go back to the source — just because it’s on YouTube means nothing to a court of law. It has to be authenticated.

Just because it’s on YouTube means nothing to a court of law, it has to be authenticated.

A lot of the data that is useless in a court of law is still important historically and for truth-telling, of course. It’s just not usable. As much as 98 to 99 percent of all the data coming out of Syria has no legal significance.

What are the step-by-step processes of bringing accountability to these crimes when the conflict in Syria finally ends?

Once the geopolitical aspect of this is solved, if it ever is, we can prosecute heads of state and henchmen for what they’ve done. We’ve done it before in the Charles Taylor case. It will be an international court — probably not the International Criminal Court because of likely Russian and Chinese objections — but we can create a hybrid international court like the special court I helped found in 2002. You may also see an internationalized Syrian domestic court or even just a Syrian domestic court. We’ve been building this trial package with the anticipation of any of that happening.

I’ll leave you with this: 10 years ago, President Charles Taylor of Liberia was the most dangerous warlord in Africa and never thought he’d be held accountable. Ten years later, he has been convicted in an open court. His appeals have been run and now he’s spending the rest of his life in her majesty’s maximum-security prison in the northeast of England.

It may seem that justice is slow, but justice is justice. The people of West Africa can look at this monster that destroyed over 1.2 million of them having been held accountable and serving the rest of his life in jail. Patience is important, and we need to keep moving forward.

This interview has been edited and condensed for clarity.