This post will be the first of many by The New International Law (TNIL) from the American Society of International Law (ASIL) Annual Conference, taking place on March 28-31, 2012 at the Fairmont Hotel in Washington, D.C. The first major presentation of the conference is the 14th Annual Grotius Lecture entitled, “Confronting Complexity Through Law,” presented by Jakob Kellenberger, the current President of the ICRC. President Kellenberger’s presentation will be preceded by a “Welcome and Introduction” by David Caron, the President of ASIL, followed by further discussion of Dr. Kellenberger’s remarks by Claudio Grossman, the Dean of the American University Washington College of Law, and Leila Sadat, the Henry H. Oberschelp Professor of Law and Director of the Whitney R. Harris World Law Institute at the Washington University School of Law. Without further adieu, let the lecture begin.
Introduction and Presentation of ASIL’S Honorary Member Award
After a brief recitation of the history of International Humanitarian Law (IHL) and the progressive (albeit difficult) development thereof under Dr. Kellenberger’s stewardship of the ICRC since 9/11, Dr. Kellenberger was presented with the ASIL Honorary Member Award. In a rather touching moment, Dr. Kellenberger raised the award and thanked his colleagues in the room.
Further Remarks by Dean Claudio Grossman
After echoing the initial remarks of the important role of the ICRC, Dean Grossman called for the expansion of the ICRC’s role in present and future conflicts. Dean Grossman then introduced Dr. Kellenberger who, after a rather humorous “debate” with Dean Grossman about whether he should sit or stand for his presentation, took to the podium.
Grotius Lecture on “Confronting Complexity Through Law” by Dr. Jakob Kellenberger
Dr. Kellenberger began with a simple, but important, question: How do we deal with the complexity of violence and armed conflict, which is a special form of collective violence? The answer: By turning to the law.
What does complexity mean? “Armed conflict remains a tragic reality in the 21st Century.” We are witnessing continued violence against vulnerable persons, including murder, torture, inhumane treatment, rape and sexual assault, as well as the denial of basic political and civil rights, such as the right to an impartial and speedy trial. As such, complexity must be approached with this background in mind. The predominant form of armed conflict is non-international, which is increasingly driven by economic factors, as individuals and peoples struggle for scarcer and scarcer resources. Geopolitics have unfortunately exacerbated this already tragic problem – from all-out armed conflicts to increasing food prices, the latter of which often leads to violence. “The humanitarian needs in these contexts may be just as grave as in armed conflicts.”
So, “How do we use international law to address this complexity?”
There are generally three responses. First, domestic and international institutions have chosen to abstain from action. A classic example is the failure of international community to agree on a genocide convention prior to WWII. Second, many critics simply raise their hands in disgust and say IHL is not suited to deal with these issues. “Third, and fortunately the most common, is to uphold existing law in the face of new challenges, whether real or perceived, … and adopt appropriate solutions.”
Complexity in law is the result of the tension between domestic and international law. The main problem is universality, but not in the obvious sense; the problem with universality is when States avail themselves of the treaty-making process yet nevertheless fail to comply with their international obligations under IHL for political reasons. A further problem is when States fail to incorporate international law into their domestic laws.
States must ensure that IHL serves its protective function, to avoid the ex post facto remediation of IHL violations in international criminal tribunals. In short, States must live up to their obligations under IHL.
The key legal issue is whether the current dichotomy between international armed conflicts (IACs) and non-international armed conflicts (NIACs) under IHL is sufficient, or whether new classifications are needed. One example is when a State takes up arms against its citizens, and the violence spills over its borders into another State. Another example is when international forces become involved in existing NIACs. The final example is the war against Al Qaeda, and other terrorist organizations. Some of these conflicts have been classified as IACs, while others have been classified as NIACs. The key distinction between IACs and NIACs is the “qualities” of the parties involved. IACs involve conflicts between States; NIACs involve conflicts between a State or government and internal groups, or between internal groups. The existing rules under IHL are sufficient to deal with existing and emerging conflicts; any new classifications would dilute IHL protections, a position the ICRC cannot support. Nevertheless, IHL should be updated to include the following humanitarian concerns:
Poor detention conditions, which may have long-lasting effects on the detainees. Poor conditions mean lack of adequate food, water, and clothing, among other things. Detainees have limited contact with their families, even though such contact is a legal obligation and sound public policy. Overcrowding is also an enormous problem, as is unnecessary prolonged detention. While these issues are addressed in the law of IAC, they are not adequately addressed in the law of NIAC, in particular, Common Article 3. As such, they must be updated.
Vulnerable persons, such as women, the disabled, and the elderly. They must be specifically protected, as these groups tend to suffer the most in internment during NIACs. In practice, internees are not notified of the reasons for their internment, or what their legal recourses are.
On a side note, “indefinite detention” has been illegally expanded outside of the strict confines of the Third Geneva Convention on POWs. This indefinite detention, regardless of the status of the person being held, must be stopped. IHL does not allow for indefinite detention of any persons, whether such persons are terrorists or not.
Additional Protocol II addresses internment only half-heartedly – more work is needed to fill the lacunae left in the law of internment under Additional Protocol II.
In addition, the transfer of persons between States has been abused over the past decade. Such transfers (i.e. rendition), in which a person is transferred from one State to another and abused, tortured, or even killed, are not allowed under IHL. Because such transfers have increased, and are likely to continue to increase, special attention must be paid to ending the practice.
Special emphasis must also be placed on holding violators of IHL individually criminally liable. The proliferation of international criminal tribunals has been a positive, if not necessary, development in punishing – and even preventing – IHL violations; however, it is not sufficient. State parties to the Geneva Conventions must labor to prevent IHL violations before they occur, not simply punish them after the fact or deter them indirectly through the threat of prosecution.
Regional mechanisms have also helped in rectifying IHL violations, such as the European Court of Human Rights and the Inter-American Court of Human Rights; however, they are not designed to punish and remedy specific IHL violations – they are designed to protect and preserve human rights. As such, human rights courts cannot serve as a stop-gap for IHL violations. More must be done.
In short, while international criminal tribunals and human rights courts have done much to address IHL violations indirectly, a direct mechanism to prevent such violations is necessary.
There have been many proposals for such a direct mechanism over the years. First, the establishment of a High International Committee to monitor such IHL violations in armed conflict was suggested. Second, the ICRC proposed an ad hoc body along the lines of the international criminal tribunals. And third, the ICRC has proposed standing bodies similar to the human rights courts to monitor abuses and handle individual petitions. These proposals should continue to be the topic of discussion to fill the void left by the international criminal tribunals and human rights courts.
Lastly, cyber-warfare presents a particular problem to States that are struggling to comply with their IHL obligations in response thereto. “Means and methods of cyber warfare are subject to IHL just like other new technologies.” Nevertheless, this technology presents a challenging task, the details of which are addressed at length in Dr. Kellenberger’s book. But suffice it to say, any response to such cyber attacks must be taken only after careful deliberation.
In conclusion, while there are many new challenges to IHL, IHL is sufficient to deal with these challenges, provided States act responsibly to IHL violations after sober consideration. IHL nevertheless should be expanded to address these new complexities.
Remarks by Professor Leila Sadat
Theme: importance of law in confronting the complexity of violence, in particular the role of IHL in confronting armed conflict. In his recent work, Dr. Kellenberger proffered three ways to moderate the effects of violence in the world: commitment to reason, understanding, and humanity. First, with respect to reason, law alone is not enough to prevent violence; violence must be prevented before the case reaches the courthouse door. Second, with respect to understanding, while Hobbes may have said that life is “brutal and short,” such a reality should not stop our attempts at understanding those who are different from us. Third, with respect to humanity, despite the exhortations to the contrary, universal norms can be applied to all peoples regardless of cultural differences, provided those cultural differences are respected. Finally, States should do more than just criticize the shortfalls of IHL; they should strive to live up to their IHL obligations.
Gaps in IHL
While the ad hoc tribunals and the ICC have done much to punish war crimes, crimes against humanity, genocide, and even the crime of aggression (by 2017?), there is a need for a Crimes Against Humanity Convention. The failure of the international community to take up the Crimes Against Humanity Convention is the product of what Dr. Kellenberger described as the global community of States’ first defect: the preference for abstention over action when it comes to tackling problematic issues. The international community cannot, however, let difficult, problematic issues deter it from tackling crimes against humanity or adopting the aforementioned convention, which is necessary to fill a lacuna in the law. With that said, it will likely fall to a body other than the ICRC to ensure that this becomes a reality.
Finally, powerful States, such as the United States, must do more to comply with their IHL obligations. The US must be a leader in IHL compliance and development, and must not allow internal political disputes to justify noncompliance.