12.4: Laws of War

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It is in the area of national security that international law is most frequently violated. However, even here there are laws which are normally obeyed, codified most recently in the 1949 Geneva Conventions. As we noted previously, there are laws against using chemical and biological weapons. There are laws on the treatment of prisoners of war (which were ignored by the Bush 2 administration at Guantanamo Bay and CIA “black” sites). There are laws against needlessly killing civilians. And there have been war crimes trials, in both national courts (e.g. Lt. William Calley for the My Lai massacre during the Vietnam War, several people for the Abu Ghraib prison abuses in Iraq) and international courts (the Nuremburg and Tokyo trials of WWII German and Japanese leaders).

One recent change in international law is that nation-state leaders have lost their previous legal immunity and have been tried for war crimes. Slobodan Milosovic and several other Serbian leaders were tried for war crimes in Yugoslavia. During former Liberian President Charles Taylor’s trial for war crimes, supermodel Naomi Campbell testified about Taylor giving her a bag of uncut war diamonds. (She disdained them as ‘pebbles,’ saying that she was used to getting her diamonds nicely cut and polished in Tiffany boxes.) Several former Rwandan officials were tried for the 1994 genocide.

France, Spain and others have claimed universal jurisdiction and prosecuted leaders for crimes in other countries. The French government recently confiscated the luxury home and cars of the son of the corrupt dictator of Guineau-Bisseau. (The 2019 auction of the cars brought $27 million.) Augusto Pinochet, the dictator of Chile from 1973-90, was later pursued by the Spanish government in British courts for human rights violations against Spanish citizens living in Chile, and was also facing trial in Chilean courts when he died of natural causes in 2006. Some of the hundreds of thousands of victims and their families who suffered torture and murder under the Franco regime in Spain have gone around Spain’s amnesty law by going to court in Argentina to pursue their cases. Even former U.S. Secretary of State Henry Kissinger has been accused of human rights violations in the courts of other countries. So far he has avoided arrest.

After setting up special war crimes tribunals for genocide and human rights violations in Yugoslavia and Rwanda, in 1996 the UN set up the International Criminal Court as a permanent venue for such cases. Donald Trump has withdrawn from the ICC, citing concerns that U.S. soldiers and officials might be unfairly targeted, but other countries have signed on. After long delays, the ICC convicted leaders of the genocidal Khmer Rouge in Cambodia. It also indicted the then-president of Sudan for the genocide in Darfur.

Just War

There are also laws regarding starting wars and overall conduct in wars. The most widely accepted criteria are that war should be only for self-defense and only as a last resort after all other methods have failed. Furthermore, once a war has begun efforts should be made to avoid civilian casualties and unneeded destruction by using proportional force.

In 1625, Hugo Grotius codified the long tradition of thought on just war for the modern era. According to his formulation, a just war must also have a moral reason and a good intention, must be declared by a legitimate leader, should outweigh the harm it is to correct and have good chance of success. In real life, few wars meet all these criteria.

In 2003, former President Jimmy Carter wrote a piece in the New York Times showing that the imminent U.S. invasion of Iraq violated the rules of just war. The Bush 2 administration ignored it.

Questions

1. Why do countries obey international law?

2. How is international law enforced?

3. What are the sources of international law?

4. What are the limitations of the World Court?

5. How strong and effective is international law? Is it generally obeyed? Example?

6. What is R2P?

7. What is it called when other countries acknowledge the sovereignty of a new government?

8. List the rights and duties of sovereign nations.

9. Give two examples of laws of war arising from the Geneva Conventions.

10. List three generally accepted criteria for a just war.