International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2013 Issue

Global Judicial PERSPECTIVe


Ownership of “International Humanitarian Law”*

Richard J. Goldstone

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.



The United States was primarily responsible for moving the Security Council to establijsh the first truly international criminal tribunal for the former Yugoslavia. In turn, the United States strongly supported the establishment of the second ad hoc tribunal for Rwanda. I know from my own experience how crucial the support of the United States was for the work of those tribunals. The United States provided generous assistance in human resources, financial resources and, perhaps most important of all, political pressure on Balkan governments. It was that pressure which led to the appearance in The Hague of the leaders indicted by the Yugoslavia tribunal. It is remarkable that every single one of the persons indicted by that tribunal have ended up in The Hague. During my time as Chief Prosecutor that would have been regarded as quite impossible. Support by the United States for the Rwanda and Sierra Leone tribunals was similarly generous and important. Yet again, it was the United States that pushed for the diplomatic conference in Rome that led to the establishment of the International Criminal Court. With regard to those developments the United States military establishment was fully involved and supportive. Indeed, some of our finest investigators came from the ranks of the United States military.

The work of those tribunals was recognized by the United States as being quite consistent with its foreign policy. It was only shortly before the 1998 Rome conference on the ICC that United States military leaders began to push back against accepting the prospect that its citizens might become amenable to the jurisdiction of an international criminal court. They successfully pressed President Clinton to instruct the United States team at Rome to do their utmost to build in safeguards that would exclude its citizens from that jurisdiction. Their proposals included the Security Council holding the key to investigations and thus make them subject to the veto of each of the five Permanent Members of the Security Council. They also attempted to ensure that the jurisdiction of the ICC would not extend to the nationals of any non-state party.

It was unsurprising that the United Sates was unable to persuade the conference to introduce sufficient safeguards to meet its concerns and consequently it joined with only six other nations in voting against the adoption of the Rome Treaty.

The definitions of war crimes contained in the Rome Statute, I would suggest, are quite consistent with the laws and moral sensibilities of the American people. The objections to the ICC were based entirely upon a suspicion that the Court would likely be biased against the United States and might be used against it for political reasons.

One way in which the nations gathered in Rome attempted to meet the objections of the United States was the introduction of the principle of complementarity. This makes the ICC a court of last and not first resort. If a country is able and willing to investigate genuinely and, decides to investigate and prosecute its own nationals, that decision deprives the ICC of jurisdiction. Although supporting that principle, the United States remained concerned that it would be the ICC judges who would have the last word as to whether a domestic investigation was in fact genuine and not a facade intended to rob the ICC of jurisdiction. As remote as such a decision might be, the United States was not willing to surrender any sovereignty at all in this regard. It is principally for this reason that there appears to be no prospect of the United States ratifying the Rome Statute in the foreseeable future.

This opposition to the Rome Statute has not prevented the United States from assisting the Office of the Prosecutor of the ICC. That cooperation began during the second term of President George W. Bush. The first word of that cooperation, as far as I am aware, was announced during a panel discussion that I happened to moderate at the annual conference of the American Society of International Law in 2006. The then legal advisor at the State Department, John Bellinger, referred to that cooperation which was then already under way. That assistance has continued under the Obama administration.

In the result the ICC has jurisdiction to investigate and prosecute the nationals of any sjtate for war crimes allegedly committed in the territory of one of the 121 nations that have to date ratified the Rome Statute. As remote as it might be, I would suggest that if a United States citizen were to be charged by the Court it would be highly embarrassing for his or her government and especially the military. Such a situation could be avoided if the United States military authorities were to regain ownership of humanitarian law. The most urgent and direct way of accomplishing this is for Congress to enact legislation that makes the core international war crimes defined in the Rome Treaty crimes under the domestic law of the United States. It would then be for the military judicial authorities to police those laws and investigate any of its own members who are alleged to have violated them. That would effectively oust the jurisdiction of the ICC.

I would suggest that there is nothing in the definitions of war crimes in the Rome Statute that would in any way be inconsistent with the United States Constitution, existing legislation or the moral imperatives that drive this country to seek justice for and protect innocent civilians and other non-belligerents.

Some of those definitions are already recognized in domestic law. I refer in this context to genocide and the grave breaches of the Geneva Conventions. However, humanitarian law has made huge strides in the past 18 years since the establishment of the Yugoslavia Tribunal. A cursory reading of the Rome Statute will demonstrate that. The extent to which those provisions of the Rome Statute should become part of the domestic law of the United States is a decision which ultimately Congress should make in full consultation with United States military authorities.

The effect of what I am proposing is to bring the United States domestic law into line with the modern humanitarian law that is accepted across the democratic world and certainly by all of those countries that the United States regards as its allies, and especially all of its NATO partners. It would also protect United States citizens, and especially members of the military, from any politically driven attempt to use the ICC process against them.

I also dare to suggest that it would be a useful legislative base should the United States ever in the years to come decide to join its many allies in ratifying the Rome Statute and regaining its leadership in the enforcement of international humanitarian law.

*This is an edited version of an address delivered at a conference on “The Self-Interest of Armed Forces in Accountability for the Members for Core International Crimes”l organized by the Forum for International Criminal and Humanitarian Law at Stanford University on November 27, 2012.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at