JURISDICTION, INDIVIDUAL RESPONSIBILITY AND THE DEFINITION OF WAR CRIMES; INTERNATIONAL
2.5. Law as a weapon
Enforcement of international law has always been diffi cult, although it has gone through a fast development in the past sixty years. Reference to violation of the law of war has probably never been as crucial and infl uential on warfare as today. Even superpowers were inclined to change their actions as a consequence of world pressure urging to respect international law. It may be observed that, even more now than before, considerations of avoidance of IHL violations are taken into account already during the strategic set-up of military operations, due to, in part, of the close and immediate media attention.
Considering the closure of the Guantanamo detention facility, the review of detention conditions, interrogations and procedures and the release of numerous prisoners by President Obama was doubtless largely the result of loud protests against interrogation techniques, the circumstances in which detainees were held and the fact that they had been held without any due legal procedures having been initiated against them. The need to respect the rules of armed confl icts has tied the hands of many fi nancially and, as to the war machinery and equipment they had developed in organization and technology, technically strong states in the way they waged war and was therefore used as a ‘shield’ by their much weaker opponents.
184 S. Wolfgang KALECK: From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-2008.
Michigan Journal of International Law, 2009/30/927. 931.
Playing with legal arguments therefore became a basic instrument – mainly in asymmetric confl icts – and has consequently a huge effect on how wars are waged in our days. This phenomenon, linked together with the recognition of individual criminal responsibility for violations under international law, may be decisive in infl uencing leaders of confl icting states and non-state actors in how to act.
Since the core subject of the present work is domestic war crime trials, the signifi cance and power of respect for the law must be underlined; the present sub-chapter shortly deals with the phenomenon often labeled as ‘lawfare’.
„That this strategic military disaster [the detainee abuses in Abu Ghraib] did not involve force of arms, but rather centered on illegalities, indicates how law has evolved to become a decisive element – and sometimes the decisive element – of contemporary confl icts.”185 This quote illustrates how much modern military forces realize that compliance with the law can be a tactical advantage – or disadvantage – to them. The consequence of which is that the possibility of sanctioning a wrongful act must be real: if the general feeling is that even if someone does something wrong he gets away with it, the theoretical presence of criminal sanctions does not have a deterring effect.
This was perfectly refl ected in a change of approach of many states worldwide since the Second World War to the necessity to train soldiers on international humanitarian law. In Hungary for instance and in many other countries, a few years ago humanitarian law was seen as one of the ‘nice to have’ issues, but by today, the teaching of international humanitarian law has become a priority in both general and pre-deployment trainings, and the number one goal of the military commander – apart from fulfi lling the mission – is to carry out the mission adopting all precautions possible in a way that there will be no legal hick-ups.
The term ‘lawfare’ is relatively new and primarily means that in today’s confl icts, law is used as a weapon. This phrase was fi rst popularized in this meaning by the US Air-Force Colonel – now General – Charles J. Dunlap in a paper in 2001186. The questions Dunlap examined were situations in which relatively weak enemies of the United States used American values “dishonestly”
185 Charles J. DUNLAP, Jr.: Lawfare – A Decisive Element of 21st-Century Confl icts? Joint Force Quarterly, 2009/54/3. 34.
186 Colonel Charles J. DUNLAP, Jr. USAF: Law and military interventions: preserving humanitarian values in 21st century confl icts. S.
http://www.hks.harvard.edu/cchrp/Web%20Working%20Papers/Use%20of%20Force/
Dunlap2001.pdf [last visited on 14 March 2012]
to undermine US military efforts. Dunlap notes that “[w]e must remind ourselves that our opponents are more than ready to exploit our values to defeat us, and they will do so without any concern about LOAC. Consider this disquieting statement from Chinese military leaders: «War has rules, but those rules are set by the West...if you use those rules, then weak countries have no chance...We are a weak country, so do we need to fi ght according to your rules? No.» ”187.
Later Dunlap extended the meaning of the expression to strategies of using the law as a substitute to traditional military means to achieve an operational objective188. The term today is understood both as a negative phrase and as a value-neutral term, in that the negative understanding would only incline that lawfare is solely a distort of legal principles to gain military advantage189; whereas the value-neutral understanding, more acceptable to the present author, would simply mean that contents and interpretations of the law of war are being questioned, discussed and analyzed by various players, including governments, international and non-governmental organizations, defence lawyers, courts and prosecutors – with all of them believing that they represent the true understanding of international law. Such discussions include the real meaning of “direct participation in hostilities”, the qualifi cation of a confl ict against terrorist groups or the legal frameworks of detaining and proceeding against so-called terrorists.
Since there is nothing new in the existence of legal discussions and different interpretations, this value-neutral understanding of lawfare simply inclines that – probably due to an enormous change of the features of today’s armed confl icts and consequently a diffi culty in applying traditional legal frameworks to it – international law is widely debated among various players and the outcomes of such debates have a decisive effect on warfare – probably much more so than before.
According to all predictions and the common phenomena of today’s wars, 21st century wars are different from traditional confl icts190. Public opinion and
187 DUNLAP (2009) op. cit. 36.
188 For a summary of different issues of ’lawfare’, s. http://www.lawfareblog.com/about/ [last visited on 14 March 2012].
189 S. for instance: The Lawfare Project, http://www.thelawfareproject.org/ [last visited on 14 March 2012].
190 Questions such as whether international humanitarian law applies to terrorist acts are also on the legal agenda. Although it has been generally accepted that those forms of terrorism that constitute armed confl ict are consequently covered by international humanitarian law, an exact defi nition of terrorism has not been adopted yet. S. Elisabeth Kardos KAPONYI: Fight Against Terrorism and Protecting Human Rights: Utopia or Challenge? Budapest, Ad Librum Ltd, 2012. 13.
the opinion of the international community have a huge weight and can make a party to the confl ict substantially weaker or stronger, both at home and at the international fora. Even super-powers cannot get away with serious breaches; the mistreatment of detainees in Abu Ghraib or in other detention facilities in Iraq191 or the already mentioned questionable physical and legal treatment of detainees in Guantanamo had and still have a huge undermining effect on the US military, and this ultimately has a direct consequence on how to plan and execute their operations on the fi eld.
A practical testimony to considerations of lawfare is the book “Unrestricted Warfare”192, written by two colonels in China’s People’s Liberation Army, discussing ways China can defeat technologically superior enemies such as the United States, and focusing on non-traditional military methods, such as the use of international law in order to avoid direct military action.
Interestingly, the application of universal jurisdiction is also often understood as part of modern lawfare. Henry Kissinger, after facing the possibility of prosecution in France, Chile, Brazil and England193, repeatedly warned of the ‘dangers’ of universal jurisdiction194. The danger of application of this extraordinary jurisdiction also prompted Israel to issue a travel ban on its commanders to certain countries for fear of prosecution for acts committed during the Gaza confl ict in 2008/2009195.
What is more, as referred to by Dunlap, certain American scholars of military law even came to the conclusion that “a »new« kind of international law is emerging that is »profoundly undemocratic at its core« and »has the potential to undermine American leadership in the post-Cold War global system«. With respect to armed interventions, [such writers] insist that the »American military is particularly vulnerable« because of the »unrealistic norms« – especially
191 Abu Ghraib was probably the most known but defi nitely not the only case of mistreatment of prisoners. Another well-covered case was the Baha Mussa case in the United Kingdom, s.
http://www.bahamousainquiry.org/ [last visited on 27 March 2012].
192 Qiao LIANG – Wang XIANGSUI: Unrestricted Warfare. Beijing, PLA Literature and Arts Publishing House, 1999. In particulare Chapter 5: New Methodology of War Games deals with the use of international law for technologically weaker states.
193 S. Kissinger may face extradition to Chile, The Guardian, 12 June 2002 http://www.guardian.
co.uk/world/2002/jun/12/chile.pinochet [last visited on 15 March 2013]
194 Henry KISSINGER: The Pitfalls of Universal Jurisdiction. In: Henry KISSINGER: Does America Need a Foreign Policy? Toward a Diplomacy for the 21st Century. New York, Simon and Schuster, 2001. 280.
195 S. Travel advisory issued for top IDF offi cers, 19 January 2009, http://www.ynetnews.com/
articles/1,7340,L-3658823,00.html [last visited on 15 March 2013].
in relation to collateral damage – propounded by the advocates of this new international law.» If the trends of international law are allowed to mature into binding rules,« they say, »international law may become one of the most potent weapons ever deployed against the United States«.”196
Indeed, if the presence of international law – which is, it must be mentioned, in no way new and has always been binding –, sends such waves of schock in the world’s most potent armed forces, it does mean that it has a signifi cant effect on the operations of such forces. As Dunlap demonstrates, the infl uence of military legal advisers on operational planning and execution has greatly increased over the past few decades, in an attempt to avoid or minimize allegations of violation of law197.
Dunlap notes that in the US armed forces, since the early 1990s, military legal advisers played an increasing role in vetting targets, drafting rules of engagement, and advising on operational issues, to the satisfaction of their commanders. Since then, military legal advisers have been present in command posts and operational cells, to avoid legal “incidents”. The presence of military legal advisers in operations and the requirement that they review operation plans, rules of engagement, policies and directives has since been institutionalized198. Other states have also followed such procedures and thus training of commanders and military legal advisers in international humanitarian law has become more and more sophisticated.199
196 Colonel Charles J. DUNLAP, JR.: Law and Military Interventions: Preserving Humanitarian Values in 21st Century Confl icts. Prepared for the Humanitarian Challenges in Military Intervention Conference Carr Center for Human Rights Policy Kennedy School of Government, Harvard University Washington, D.C., November 29, 2001. 1. Available at http://people.duke.
edu/~pfeaver/dunlap.pdf [last visited on 25 March 2013]. The origin of the quote is: David B. RIVKIN, Jr. – Lee A CASEY: The Rocky Shoals of International Law. The National Interest, Winter 2000/01. 35.
197 „[…] most senior U.S. military leaders, and certainly those in the Air Force, accept that the fact or perception of LOAC violations can frustrate mission accomplishment. […] Consequently, savvy American commanders seldom go to war without their attorneys. […] In short, the predominance of law and lawyers in U.S. military interventions is as much a concession to the verities of modern war as it is an altruistic commitment to human rights.” Ibid. 5–6. This statement particularly reveals the evolving infl uence of law on the waging of war, considering that not more than a decade ago military legal advisers often complained about commanders not taking them seriously and only regarding them as uncomfortable obstacles to them pursuing their military tactics.
198 Ibid.
199 In Austria for instance, a military legal adviser can only be deployed to operations if he/she has concluded a high-level 3-week course on international law (called the Vienna Course on International Law for Military Legal Advisers, where the present author is co-director of the course) – a major part of which is international humanitarian law.
It goes without saying that public opinion has a strong political infl uence which in turn may, and most probably will, result in military advantage or disadvantage:
the enemy will not hesitate for a moment to use public hesitation or discontent either at home or at the international level to further its military goal. If a soldier is blamed for any act that could qualify as a war crime, the only way his/her state can escape or at least diminish the political and military consequences is bringing the perpetrator to justice. This seems to be the most effective way for the state to demonstrate that these persons were not executing illegal state policy, but the wrongful acts were one-off actions. Obviously, this was also used for its reverse:
when soldiers were believed to be carrying out an illegal state policy through their illegal actions, prosecution of low-ranking soldiers was basically to shield the state policy and the responsibility of high level commanders.
The fact that law has become so paramountly important in today’s warfare, more decisive in exerting genuine infl uence on warfare than it was before, calls for a special attention to respect for the law and makes it the ultimate interest of warring parties to demonstrate their willingness to abide by the rules in the form of enforcement. This is why punishment of violations of the law of war is so important and is, or should be, in the best interest of states themselves.