By: Richard
J. Goldstone, Former Justice, Supreme Constitutional Court
of South Africa; First Chief Prosecutor of the International Criminal
Tribunal for Yugoslavia; and Regular Columnist, International
Judicial Monitor
Humanitarian law, or as it was
originally called, the law of war, goes back many centuries and was based on
reciprocity. The theory was that the best way to assure humane treatment for
one’s soldiers who fall into the hands of the enemy was to treat the enemies’
soldiers under one’s own power in a humane manner.
For centuries the laws of war
were not written and were based on well-recognized and accepted international
custom. At times they were also reinforced by religion and morality.
Until recent decades those
laws were owned and fashioned by the military. They did not fall within the
remit of civilian authorities. That ownership appears to have become lost and
it has somehow, perhaps unwittingly, been ceded to civilian governments and to
non-governmental organizations, both domestic and global. Today, this
development appears to be taken very much for granted. This is unfortunate. We
should examine the reason for this shift, ask whether a movement back would not
be timely, sensible, and very much in the interests of the military
establishment and, indeed, governments and their citizens.
The first and most important
codification of the customary laws of war was American -- the Lieber Code of
1863. That was adopted by the Union Army at the time of the Civil War and
became known as “General Orders No. 100.” For over half a century the Lieber Code remained
the official US army code for land warfare.
Francis Lieber was an unusual
man. He was German and as a young man fought for the German Army against
Napoleon. He came to the United States where he obtained citizenship in 1832. He was well-educated and became a
professor at South Carolina College. However, he detested slavery and moved to
New York in 1857 where he became a professor at Columbia College and
subsequently at the then newly established Columbia Law School. During the
Civil War Lieber’s eldest son died fighting for the Confederacy whilst his two
younger sons were fighting in the Union Army. One of them lost an arm in
Tennessee. While visiting him in a hospital, Lieber met General Henry W.
Halleck, the commander of the Union forces in the West. When Halleck was
appointed military adviser to President Lincoln he requested Lieber to propose
a “code of regulations for the government of armies in the field of battle
authorised by the laws and usages of war.”
The resulting
Lieber Code was a highly moral conception and dealt with the treatment of
prisoners as well as prohibiting the use of poison in warfare. It recognised
that rape as an instrument of warfare was a crime that was subject to the death
penalty. In this regard the Code was more than a century ahead of its time.
The Leiber Code’s
historic importance lay in its recognition of the necessity of systematising
the accumulated experiences and practices of the preceding decades. Its
influence on all subsequent humanitarian law becomes evident in the Geneva
Conventions and in the army manuals of many countries.
International
humanitarian law - and especially the Geneva Conventions - were designed to
guide the actions of the military during an international armed conflict. Their
violation had no civil (non-military) law criminal consequences. They were
rather matters for internal military investigation and sanction.
It was the
exponential increase in the numbers of deaths and injuries of civilians, raping
of women and displacement of populations that pushed civilian authorities to
assume the control of humanitarian law.
Between 1864 and 1929
successive Geneva Conventions governed the treatment of sick and wounded
members of armed forces in the field and at sea. They were extended to cover
air war and the protection of prisoners of war, but did not govern the
protection of civilians during armed conflict. That is hardly surprising given
that armies fought against armies and civilians were not the intended objects
of attack until well into the 20th century.
However, during the mid-20th century deliberate attacks against civilians became the norm. According to Mary
Kaldor, of the London School of Economics, at the beginning of the Century, the
ratio of civilian to military casualties was about 1:9. That means that for
every civilian casualty there were about 9 military casualties. In World War II
the ratio was about 1:1. (This is hardly surprising if one thinks about the
intentional bombing of cities, large and small). During the past 30 years or so
the ratio has risen to about 9:1, i.e. for every military casualty there are
nine civilian casualties. The ratio at the beginning of the 20th Century was completely reversed by the end of that most bloody century.
The previously unimaginable
horrors of World War II moved humanitarian law firmly into the criminal law
arena. It was at the insistence of the United States that Nazi leaders were
placed on trial at Nuremberg. For the first time there was acceptance and
definition of the concept of crimes against humanity.
Those horrific crimes also led
to the inclusion of the grave breach provisions in each of the four 1949 Geneva
Conventions and the express provision that their violation constituted criminal
conduct. For the first time in an international treaty, universal jurisdiction
was conferred with respect to those offenses. All nations were enjoined by the
Geneva Conventions to investigate and prosecute grave breaches wherever and by
whoever committed.
The Nuremberg Trials were
considered sufficiently successful and led politicians and international
lawyers to press for a permanent international criminal court. There is
reference to such a court in the 1948 Genocide Convention and the 1973 United
Nations Convention that declared apartheid in South Africa a crime against
humanity. However, it was to take almost half a century before such a court was
established.
International
Judicial Monitor