The Rule of Law

As mentioned earlier in this chapter, the law of war addresses human rights with rules that have evolved from the Just War tradition. Some of these rules have become part of customary (unwritten) international law and the law of war through usage and custom over the years.

More specific standards are provided by treaties or international conventions. The four Geneva Conventions of 1949 and the UN Charter are among the most important sources of the law of war on human rights. They define war crimes and provide specific standards for treating civilians and other non-combatants; they elaborate but do not change the standards first codified in the Lieber Code of 1863.⁴⁴

The focus of the Geneva Conventions is on protecting civilians and other non-combatants from the violence of warfare. Combatants forfeit their right to protection against lethal force when they put on a uniform and become a lawful target for enemy combatants. But even combatants are protected against weapons calculated to cause unnecessary suffering, such as dumdum bullets, poisons and bacteriological weapons. The law of war also prohibits treachery among combatants, which includes the improper use of a protected symbol, such as a red cross or a white flag of truce, to gain advantage over the enemy.⁴⁵

The law of war provides protection for non-combatants on the theory that war should not harm those who do not make war. Under the Geneva Conventions non-combatants such as civilians, prisoners-of-war, and the sick and wounded, are considered protected persons and entitled to protection from inhumane treatment. Violations are considered war crimes.

War crimes defined in the Geneva Conventions fall into two categories: grave breaches, which are subject to severe punishment, and other war crimes considered less serious. Grave breaches include 'willful killing, torture, or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health', as well as serious property crimes, including the 'extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly'.⁴⁶ Parties to the Conventions, including the US, are required to enact laws to punish those committing grave breaches, while they must only suppress other unlawful acts.

The Geneva Convention Relative to the Protection of Civilians in Time of War illustrates the special protected status of civilians:

Protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practises, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.⁴⁷

The Geneva Conventions apply to armed conflicts between two or more nations; but even in civil wars, like the one in Bosnia, which are not covered by the full Geneva Conventions, non-combatants are entitled to protection. In addition to the protection afforded by customary law, non-combatants

... shall in all circumstances be treated humanely [and]... the following acts are and shall remain prohibited at any time and in any place:... violence to life and person... [and] outrages against personal dignity, in particular, humiliating and degrading treatment.⁴⁸ Contemporary war crimes

During Desert Shield/Storm it was evident that grave breaches of the Geneva Conventions were committed by Iraqi forces in Kuwait.

The UN Security Council has convened a war-crimes tribunal in The Netherlands; but there has been no other international tribunal with compulsory jurisdiction to prosecute war crimes since Nuremberg. The US has not helped to fill this void; it even used the weakness of the existing International Court of Justice, which lacks mandatory jurisdiction, to its advantage when it refused to appear before that Court after charges were brought against the US by the Nicaraguan government (then controlled by the Sandinistas) for supporting the Contras.⁴⁹

Individual states have jurisdiction to try war crimes, however. In March 1993 a Bosnian military court condemned to death two Serb soldiers convicted of war crimes. They were accused of killing at least 40 people, many of them young women who were first raped as part of the Serb campaign of ethnic cleansing. Ironically the verdict was condemned by the commander of UN forces in Bosnia; French General Philippe Morillon criticized the Bosnians for trying the Serbs by their own military court rather than waiting to prosecute them before the UN war crimes tribunal.⁵⁰

Rape and murder have apparently been commonplace in the Bosnian civil war. A report by Amnesty International, Bosnia-Herzogovenia: Rape and Sexual Abuse by Armed Forces, states 'The available evidence indicates that in some cases the rape of women has been carried out in an organized or systematic way, with the deliberate detention of women for the purpose of rape and sexual abuse.' While most of the reported rapes have allegedly been committed by Bosnian Serbs against Moslems, incidents have been reported on all three sides of the conflict: Serbs, Croats, and Moslems. All have blood on their hands.

While history provides examples of rape in almost every war, the Bosnian civil war is unique in that Serbian 'ethnic cleansing' policy apparently includes the rape of Moslem women.

Since the creation of the UN Yugoslav War Crimes Tribunal, twenty-one Serbs have been indicted for atrocities committed at a military prison camp. But only one, who happens to be in German custody, is likely to face trial. The rest, along with Serbian leaders President Slobodan Milosević and Radovan Karadzić who were named by former Secretary of State Eagleburger as possible war criminals in 1992, remain at large.

It the new UN War Crimes Tribunal cannot enforce the law of war against those who violate it with such impunity, the law will cease to be a meaningful standard of legitimacy. The indictments are the first on genocide since the trials of Nazi war criminals at Nuremburg after the Second World War. The difference is that the Allies had custody of those indicted then, while the UN seems powerless to do the same today. The practical uselessness of the indictments underscores the ineffectiveness, so far, of the UN to enforce the most fundamental of human rights.⁵²

The universality of jurisdiction over war crimes allows any nation to prosecute war criminals. This supports the legality of the Bosnian court as well as the UN War Crimes Tribunal. While the enforcement of international law by the courts of nations at war (or sympathetic to one party or the other) may complicate peace negotiations, the law should not become a casualty of war in order to expedite peace. For those in the US military, jurisdiction is not an issue; for them, war crimes are offenses under the Uniform Code of Military Justice and punishable by court-martial.⁵³ Human rights in peacetime

As discussed earlier, the egregious violation of human rights is justification for military intervention. What are these human rights that pre-empt sovereignty? While the Geneva Conventions define fundamental human rights in international armed conflict and civil war, there is no peacetime equivalent.

Beyond the Geneva Conventions the definition of human rights and the collective enforcement mechanisms in peacetime are found in treaties to which the US is a party. The most important of those collective arrangements are the UN and Organization of American States (OAS).

The UN Charter provides in Article 1(3) that one of its principal purposes is '... promoting and encouraging respect for human rights and for fundamental freedoms'. Article 55 provides '... the UN shall promote... universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion'. Article 56 pledges all members '... to take joint and separate action... for the achievement of the purposes set forth in Article 55'. But the Charter fails to define peacetime standards for human rights or provide effective mechanisms to enforce them. The lack of standards and enforcement mechanisms to hold offenders accountable is a glaring deficiency, not only with regard to atrocities in Bosnia, but also in Latin America and Haiti.

The OAS Charter suffers the same weakness as the UN Charter. In Article 3(j), OAS members '... proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex'. And in Article 16 each member pledges to 'respect the rights of the individual and the principle of universal morality'. These vague standards and the lack of effective enforcement mechanisms have made human rights almost meaningless in Latin America and Haiti. This is evident in the 1993 UN Truth Commission Report which cited egregious human rights violations in El Salvador and continuing human rights violations in Haiti. With no enforcement mechanism, little action is likely to be taken to remedy these wrongs.

The Universal Declaration of Human Rights is not a treaty, but it was adopted by the UN General Assembly in 1948 as an authoritative interpretation of the Charter's general requirement to promote respect for human rights. The American Declaration of the Rights and Duties of Man was adopted by the OAS in a similar fashion. Both Declarations set forth specific rights which reflect international principles and US national values: respect for the individual, democratic institutions, and rule of law. The State Department views the Universal Declaration as 'the most important and widely-accepted standard-setting document in the world', and, along with the American Declaration, uses it to measure the human rights performance of states for its annual report to Congress.⁵⁴

While not the law of the land, the standards of the Universal and American Declarations are US policy and are incorporated into rules of engagement (ROE) and general orders which govern the conduct of US forces overseas. The Declarations define human rights in the context of democracy and the rule of law, and provide meaningful if not enforceable standards for military legitimacy. While these standards affect the legitimacy of all military operations and activities, they are primary requirements of military legitimacy in those security and humanitarian assistance activities discussed in Chapter 2. Operational law and human rights

The law of human rights is a part of operational law, or OPLAW. OPLAW is the rule of law applicable to the military;⁵⁵ its foundation is the Constitution, and its components are US domestic law, regulations and directives, international law and host country laws. The most important standards of OPLAW relate to restraints on the use of force: the law of war provides the standards of restraint in war, and the more restricted standards required for operations other than war are provided by ROE. OPLAW also provides additional restrictions on operations other than war that are discussed in Chapter 2 as they relate to specific activities.

The standards of OPLAW that relate to the use of force and ROE are analogous to the moral standards of Just War and govern the operational and tactical issues of legitimacy. These standards of legitimacy are tailored to the unique military and political objectives of operations other than war through ROE, which are discussed in Chapters 3 and 6 as elements of restraint.⁵⁶

Both OPLAW and peacetime ROE emphasize the importance of human rights, especially in operations other than war. If there has been a crucible for testing OPLAW and ROE in the last decade, it has been Latin America. There human rights violations were allegedly committed by officers trained at the US Army School of the Americas at Fort Benning, Georgia, raising questions about the school's commitment to human rights. Emphasizing the priority of human rights training at the school, General Barry R. McCaffrey, Commander of US Southern Command (USSOUTHCOM), has cited the OAS charter and the American Declaration of Human Rights as an expression of OPLAW standards which must be respected by all military officers in Latin America. General McCaffrey confirmed the linkage between human rights, democracy, and the rule of law, citing John Shattuck, Assistant Secretary of State for Human Rights and Humanitarian Affairs:

Human rights, democracy and the rule of law are not the same. But they are complementary and mutually reinforcing... Democracy the rule of, by, and for the people - is only possible in a political and social order that fully respects the rights of each and every man, woman, and child in society.... Governments that do not respect the rule of law are by definition lawless.⁵⁷

As an OPLAW standard of culpability, General McCaffrey cited the Medina standard, used in the prosecution of those involved in the My Lai massacre in Vietnam:

If a captain, colonel, or general knows of a human rights violation or war crime, and takes no action, then he or she will be held criminally liable. That's what we teach everyone here at this institution, at the School of the Americas.⁵⁸

To illustrate how respect for human rights - a variation of the golden rule - is incorporated into military leadership, General McCaffrey cited an example discussed in Chapter 1: He contrasted the calculated brutality of General William T. Sherman toward Southern civilians with the respect shown by General Robert E. Lee toward Northern civilians. It was a classic example of how winning the war, when it involves the abuse of civilians and their property, can come at the expense of losing the peace:

Winning a war is a reasonably easy proposition. It involves energy, courage, violence, and organization. Winning the peace is a far more difficult thing to do. General Sherman's actions, his barbarity and cruelty, created a hundred years of bitterness in the American South; some aspects of which endure today. General Lee, on the other hand, consistently espoused values [treating civilians and their property with respect] which were not and are not a military weakness.⁵⁹

General McCaffrey summarized the concepts of democracy, human rights, and the rule of law into seven principles of legitimacy and leadership that are a preamble to the next chapter:

· zero tolerance for (human rights) abuse

· human rights training

· understanding ROE

· treating soldiers (and civilians) with respect

· lead by example

· control your troops

· honorable conduct pays off⁶⁰