Tag: war crimes

Cyber Nerd Blogging: Neuroscience, Conflict and Security

Antoine Bousquet has a fascinating post at Disorder of Things on developments in neuroscience and how they are being used by militaries to 1) enhance their own soldiers and 2) degrade the abilities of their opponents. The post is in response to a report by The Royal Society on Neuroscience, Conflict and Security which outlines these developments, speculates on the future and the ethical implications of these developments.

As Bousquet notes, it’s some pretty hairy stuff:

Yet perhaps the most potentially consequential developments will be found in the area of neural interfacing and its efforts to bring the human nervous system and computing machines under a single informational architecture. The report’s authors note here the benefits that accrue from this research to the disabled in terms of improvements to the range of physical and social interactions available to them through a variety of neurally controlled prosthetic extensions. While this is indeed the case, there is a particular irony to the fact that the war mutilated (which the Afghan and Iraq conflicts have produced in abundance – according to one estimate, over 180,000 US veterans from these conflicts are on disability benefits) have become one of the main testing grounds for technologies that may in the future do much more than restore lost capabilities. Among one of the most striking suggestions is that:

electrode arrays implanted in the nervous system could provide a connection between the nervous system of an able-bodied individual and a specific hardware or software system. Since the human brain can process images, such as targets, much faster than the subject is consciously aware, a neurally interfaced weapons systems could provide significant advantages over other system control methods in terms of speed and accuracy. (p.40)

In other words, human brains may be harnessed within fire control systems to perform cognitive tasks before these even become conscious to them. Aside from the huge ethical and legal issues that it would raise, one cannot but observe that under such a scheme the functional distinction between human operator and machine seems to collapse entirely with the evaporation of any pretense of individual volition.

Noting scientific developments aimed at altering the sensory perception of enemies on the battlefield, Bousquet concludes: “The holy grail of military neuroscience is therefore nothing less than the ability to directly hack into and reprogram a target’s perceptions and beliefs, doing away even with the need for kinetic force. So that when neural warfare does truly arrive, we may not even know it.”

A couple of thoughts:

First, The Royal Society Report is interesting for its inclusion of a relatively decent overview of the applicable law that would apply to such weapons. Ken Anderson at Lawfare disagrees – suggesting that “The legal and ethical issues are of course legion and barely explored.” However, considering the report is relatively brief, the legal and ethical section does proportionally take up a large chunk of it. in addition, the report includes no less than four recommendations for suggesting improvements to the Chemical Weapons Convention and Biological Weapons Convention regimes. Interestingly, they do not suggest any improvements for law of war/IHL as opposed to arms control. I find this surprising to a certain extent. While there are principles that always apply to ALL weaponry (distinction, proportionality and necessity – and, of course, prohibition of unnecessary suffering), I would argue that neuro-non-leathal weapons are a definite grey area. (As The Royal Society report notes, altering someone’s sensory perception has radical implications for notions of responsibility in the prosecution of war crimes.)

Second, Bousquet’s last point is interesting in that it reflects the constant quest over the last century and a half to develop weapons that would end the need for the use of kinetic force. I’m presently reading P.D. Smith’s Doomsday Men a social history of the application of science to warfare and weapons of mass destruction which traces the development and logic behind such weapons that were supposed to be so terrible that they could never be used – or if used, would be so terrible as to inspire an end to warfare. This was the case for chemical/gas weapons and eventually the atomic bomb – the thought behind many of their creators that their mere possession would be enough to stop countries from fighting one another full-stop because the consequences would be so terrible.

As Smith demonstrates in his book, such a theory of non-use of weapons was a frequent theme of the science fiction literature of the time, particularly that of HG Wells:

The United States of America entered World War I under the slogan of ‘the war to end all wars’. Never has idealism been so badly used. From Hollis’ Godfrey’s The Man Who Ended War (1908) to H.G. Wells’s The World Set Free (1914), the idea of fighting a final battle to win universal peace had gripped readers in Europe and America. Wells’s novel even introduced the phrase ‘war that will end war’.
Once again, science played a vital role in these stories. A new figure emerged in pre-war fiction – the saviour scientist, a Promethean genius who uses his scientific knowledge to save his country and banish war forever. It is the ultimate victory for Science and Progress…

As James writes, these works of science fiction promoted the idea that “through revolutionary science and the actions of an idealistic scientist, war could be made a thing of the past.” In some works a terrible war is required to win the peace through science, but it is clear that in the view of many of these pre-War “science romance” novels (which would go on to inspire many of the future atomic scientists working on the nuclear bomb) that super weapons could stop war.

Should we then read neuro-weapons in this light – as part of the constant scientific quest to develop weapons which will end the need to fight?


More on Gotovina

Ante Gotovina

Last week I wrote about targeting and mentioned the Gotovina Case. This case has become interesting for those interested in international law and post-conflict justice because of the decision of the court (among other things) effectively states that a 4% error rate in targeting in a complex military operation was tantamount to a war crime.

As I said in the post, the decision prompted several laws of war scholars (many of whom were former JAGs) to have a roundtable at Emory University on the decision and subsequently write up an amicus brief  supported by 12 international law experts from the US, Canada and the UK which was submitted to the appeals chamber at the ICTY. This prompted a response from the prosecution which may be read here.

What I didn’t realize, however, was that the Court was deciding that day to reject the amicus. You can read their decision here.

I must admit that going through the Court’s decision does not inspire confidence. That the decision begins with a discussion about the word length is… like something I might write at the END of my comments on a student essay.

Next, in the brief “Discussion” of the merits of the arguments, the court briefly states that it is “not convinced that the applicants’ submissions would assist in determining the issues on appeal”, and invokes procedural rules for submitting evidence. It further states that the amicus brief is problematic because it does not identify the fact that one of the authors, Geoff Corn, was an expert witness for the defence. Given that this later point should have been pretty obvious and they are already lecturing the authors for going over the word limit, you wonder how this should have been done? Or why this is a matter of substance in deciding the merits of the worth of the amicus?

Either way, the Court uses these points to reject the amicus in a brief dismissal that I find wanting. Disappointingly, the amicus has been dismissed on rather procedural and technical grounds. And this is important: if international courts are going to be making controversial decisions suggesting that a 4% error rate is tantamount to a war crime and if they reject advice on this matter because someone didn’t explicitly attach a CV to an amicus that violated the 10% +/- rule, I am concerned. And you have to wonder what kind of message this send to countries thinking about signing up to war crimes courts/trials?

Regarding my post from last week, Geoff Corn responded in the comments to direct readers to his SSRN paper on the matter. I would definitely recommend interested Duck readers to take a look.

Clearly, Gotovina remains a case that should be closely watched. The man himself remains a controversial figure. Being concerned with his trial is not to say he is not guilty of some crimes. However, it is clear that many experts in this area are concerned about logic employed by the ICTY on several important aspects of the case and the future implications of war crimes trials.

I look forward to more reaction from the amicus authors and other scholars on this matter.


Crimes in and of Famine

If you find the argument that famine is man-made to be credible, then famine is not just an inevitable outcome of the structural conditions of “failed states” but rather it is purposeful, systematic, and systemic human rights abuse and therefore criminal.

Those who make the argument that the current famine in East Africa is man-made place more blame on political problems of restricted access, entitlements and aid management than the environmental factors of drought, overpopulation, and food scarcity. That Somalia has been hit harder by famine than neighboring Ethiopia and Kenya underscores this point. If famine is, at least predominantly, man-made than by extension there are individuals or groups responsible for causing the famine or exacerbating its effects of death and displacement. As Charles Kenny argues for Foreign Policy, “In order to ensure widespread death by starvation, a governing authority must make a conscious decision: it must actively exercise the power to take food from producers who need it or deny food assistance to victims.”

The debate is not new. For example, in Famine Crimes (1997) Alex de Waal addresses the “political roots of famine” in Africa and the subsequent failings of the “humanitarian international” as an “obstacle rather than aid to conquering famine.” (pxv) More specifically on the question of crimes and responsibility, he argues:

“For war crimes, the challenge is to deter those who cause them. The Geneva Conventions contain strong provisions prohibiting the use of starvation as a method of warfare. Criminalizing the infliction of famine requires a further step, namely enforcing the prohibitions by prosecuting those guilty of the crimes. This it to put famine into the category of offences requiring justice, and in particular war crimes.” (p6)

Certainly civilians living amidst violence and in poorly functioning states are likely to become food insecure and displaced. But is the present famine, the worst in sixty years, an international crime in and of itself? Both Sarah Pierce and Jens David Ohlin explain the factual case that, technically, the famine is neither a war crime nor a crime against humanity but make the normative argument that it should be. Specifically starvation is a war crime but only in international armed conflicts. And for the famine to constitute a crime against humanity there must be intent and knowledge of a plan to cause “great suffering, or serious injury to body or to mental and physical health” as part of a systemic and systematic attack on civilians. This is where the evidence is mixed and raises questions about determining intent and assigning responsibility to organizations and individuals. Those who breed corruption and war often to blame.

In Somalia, civilians are prevented from fleeing to areas, inside or outside its borders, to access food aid, medical assistance, and protection and aid agencies are deliberately obstructed from providing such assistance inside much of Somalia. Human Rights Watch just released a report, “You Don’t Know Who to Blame:” War Crimes in Somalia, accusing all warring factions in Somalia, particularly al-Shabaab but also government forces, of committing human rights violations and preventing access to aid. But most argue that the Islamic insurgency group, al-Shabaab, is primarily to blame. The report’s author told BBC that

“al-Shabaab carries out unrelenting daily repression and brutality in areas under its control, taxing the population for access to water, forcefully recruiting men so they cannot grow crops and restricting access to aid agencies…al-Shabaab must carry he burden of that responsibility for the way in which the fighting has led to human rights violations which have contributed to famine.”

Andrew Jillions, blogging at Justice in Conflict, also directly takes on the question of al-Shabaab’s responsibility or complicity in engineering the famine. And in Kenya too there is finger-pointing at political actors. One Kenyan activist claims “this is a governance drought. It is a situation caused by the government’s failure to plan…” and that big profits can be made from famine.

Whether those perpetrating violence and corruption have intentionally caused vs. exacerbated the famine in the commission of other abuses may matter more for identifying this as a crime and assigning responsibility, but on the ground the end result of either scenario is still increasing death and displacement with little allocation of responsibility.


Impunity Gap: Sri Lanka

(see first post in this series: Mind the Impunity Gaps)

There is increasing pressure for justice in Sri Lanka for crimes committed in the long civil war between the Government and secessionist Tamil Tigers (LTTE) and that ended in May 2009. While the Sri Lankan government has publicly pledged to ensure justice, there are legitimate concerns its current approach will not be genuine and sufficiently punitive, and will place the burden of guilt for war crimes and crimes against humanity on the LTTE while institutionalizing impunity for crimes committed by Government forces.

“Sri Lanka’s Killing Fields”
The airing of a documentary called “Sri Lanka’s Killing Fields” on UK’s Channel 4 sparked new interest and pressure. It has now been shown to wide acclaim at the UN in New York and Geneva and recently by human rights groups in Washington, DC. The footage is indeed shocking. It documents extrajudicial killings, torture, and sexual violence allegedly committed by Government forces against Tamil civilians. The documentary is available on YouTube.

The Sri Lankan government has reacted angrily to the footage and accompanying accusations; it also claims that portions of the film have been doctored or are misleading. A BBC Hardtalk interview with a Sri Lankan MP and adviser to the President is revealing with regard to the determination of the Government’s denial and rejection of international pressure to investigate its own crimes.

UN Probe Alleges Crimes Committed by “Both Sides”

A United Nations Panel of Experts released a report in April, 2011 stipulates there are credible allegations of war crimes and crimes against humanity committed by both sides in the final stages of the war (Sept 2009-May 2009). Crimes committed by the LTTE throughout the civil war are well known, including killings, forced displacement, use of child soldiers, etc. But crimes committed by Government forces have been less exposed.

The Panel’s notable allegations are as follows:

The Government says it pursued a “humanitarian rescue operation” with a policy of “zero civilian casualties.” In stark contrast, the Panel found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity….330,000 civilians were trapped into an ever decreasing area, fleeing the shelling but kept hostage by the LTTE….Most civilians in the final phases of the war were caused by Government shelling…..(p ii)

The Panel was also highly critical of the Government’s commitment to accountability thus far:

The Government has stated that it is seeking to balance reconciliation and accountability, with an emphasis on restorative justice. The assertion of a choice between restorative and retributive presents a false dichotomy….The Government’s two-pronged notion of accountability, as explained to the Panel, focusing on the responsibility of past Governments and of the LTTE, does not envisage a serious examination of the Government’s decisions and conduct in prosecuting the final stages of the war or the aftermath, nor of the violations of law that may have occurred as a result. The Panel has concluded that the Government’s notion of accountability is not in accordance with international standards. (p iv)

The Government’s “Lessons Learnt and Reconciliation Commission” was described by the Panel as “deeply flawed.” (p v).

In response, the Sri Lankan Government vociferously rejects the prospect of international judicial intervention, argues the “report is based on patently biased material which is presented without verification,” and claims that reconciliation should come above all else. A commitment to reconciliation above prosecutions is a familiar refrain for governments wishing to disguise impunity for their own crimes (e.g. Indonesia, Rwanda, etc.)

The impartiality of investigations does not always translate into a balanced prosecutorial strategy. This will be a considerable challenge for international or national trials for Sri Lankan atrocities. International courts struggle to prosecute the winners of conflict, particularly because of a reluctance to create a moral equivalency of crimes on both sides, and if perpetrators are in positions of political power and prosecuting them could risk instability or a loss of cooperation. Impartial prosecutions in national trials are likely to be impossible in this case, owing in no small part to what the Panel calls the Sri Lankan government’s discourse of “triumphalism” over Tamils and “exclusionary policies” that prevent domestic victims’ groups from successfully exerting pressure on the government.

Prospects for Closing the Impunity Gap
Pressure from the UK and advocacy from human rights groups seems to be having no effect so far. Most of the pressure is on the UN Secretary-General because the Panel was commissioned by his office and with the purpose of advising him on further investigations and accountability. Victims and human rights groups are pressing him to take up the Panel’s clear recommendation to establish and official international commission of inquiry. Such a formal inquiry, as past experience has shown, would pressure the Sri Lankan government to genuinely investigate and hold war criminals accountable, and absent such a response would generate support for an international tribunal. If not an ad hoc or hybrid tribunal, a referral to the International Criminal Court would have to come from the Security Council as Sri Lanka is not a State Party to the Rome Statute. But China’s support for Sri Lanka and its autonomy in accountability makes this unlikely to happen. There is great risk that the Sri Lanka case will fall through the cracks.


A Quick and No-Doubt Premature Look at WikiLeaks (Iraq Edition)

Just a few initial observations/questions

1. Iraq Body Count is arguing that the documents help provide further information on civilian deaths.  No doubt this will add further impetus for the call for militaries to release information on casualties killed in armed conflict. I wonder, however, if IBC has to walk a fine line here – if they say that the information released provides information on hundreds or thousands of previously unknown incidents, it means that they are effectively saying their own methodology was flawed. On the other hand if they say that it confirms their numbers, then they undermine their own argument for releasing information.[Update: IBC is indeed saying that the documents “contain an estimated 15,000 previously unknown civilian deaths.”]

Still, I think they are trying to straddle the middle based on this account here.  They’re saying that they are predominantly getting more details (ie: names) from the reports. However, in my mind, this still doesn’t answer the more important  question as to whether it’s really a good idea to publish the names of victims on a database a) during the middle of a raging civil war b) located in a Western country, controlled by a technically unaccountable NGO, where the families have no input or control over what is stated. (But a blog post for another day…)

2. The documents seem to be making clear that although Iraqi detainee abuse is something that the world has associated with US troops at Abu Ghraib, it was endemic throughout the country and it was largely carried out by Iraqis against other Iraqis. Many of these incidents were reported but so far it seems that in many cases that no further investigation seems to have been carried out.

This is interesting in that it seems (on the surface at this point) to reflect the same controversy as to the handing over of Afghan detainees by Canadian troops to Afghan jails. If you hand over a detainee, you are responsible for his or her treatment under the Geneva Conventions. If US troops were handing over prisoners to the Iraqis, knew they were being abused and then did not investigate, this could be a serious violation of the laws of war. Particularly if this was systematic.

It will be interesting to see what comes out of this – what was the logic of not investigating further or sooner?  Some of the immediate explanations (not excuses) I can think of are:
  1. Some of these incidents may have been Iraqis captured not by US troops but by other Iraqis and US soldiers were making observations. If this was the case I’m not sure the law is that clear as to who was responsible – I think it would depend at what point during the occupation that this occurred and who had effective control of the country.
  2. These reflect larger problems with handing over prisoners in conflicts like Afghanistan and Iraq which are very much tied up with the problem of trying to hand over sovereignty. Essentially, a military power is trying to force a country to work, and to have an infrastructure (including prisons) as soon as possible. After all, this is what is expected and what the international community was demanding. So taking over prisons is clearly not allowing Iraq to be sovereign, but not acting may have been a violation of the laws of war. Which is it to be? And I’m sure asking the Iraqi insurgents/leaders/prison guards during the insurgency there nicely to stop electrocuting their prisoners was probably not particularly effective.
    This issue of large numbers of detainees located in prisons that do not meet even the most basic international standards in conflicts where Western nations are engaged in an armed conflict (particularly where the state on where it takes place has a de jure sovereignty, but de facto quasi-sovereignty)  has emerged as a major problem over the last decade and should be taken up by international legal scholars and Western states so as to hopefully avoid this problem in the future.

This is just a first take – looking forward to what others have to say.


Kandahar and My Lai; Drone Strikes and Carpet Bombing

 The New York Times recently posted reports about the U.S. military’s trial of soldiers accused of randomly killing civilians in Afghanistan’s Kandahar province, “for sport.”  Apart from the horrors of the alleged crimes, there is a terrible irony in the stories.  This goes beyond the fact that these kinds of incidents are hardly news.  They are completely predictable in any war, even among the best-trained and most disciplined armies—let alone those in which governmental and military leaders provide signals that make incidents like Abu Ghraib possible.  

The irony also goes beyond the coincidence that this story appeared in the New York Times the same day as another, titled “CIA Steps Up Drone Strikes on Taliban in Pakistan.”  That story re-emphasized the open secret that Pakistan has become the new Cambodia.  Like that other unfortunate nation, Pakistan is being targeted because another of America’s wars is not going well.  But rather than accepting the original war’s folly, our military and civilian leaders, in their consummate wisdom, have expanded it to nearby countries.  Supposedly, it is these nations’ failures to control their populations and borders that explains the war’s failures.

But the real irony is the prosecution of these soldiers, when the architects of the war–responsible for placing the soldiers in Kandahar to begin with–are taking actions that predictably lead to large civilian casualties as well.  It is, of course, true that from a legal standpoint, there are differences in the intent of the killers:  in the first case, intentional; in the second, unintentional.  It is also true that in the first case, the soldiers allegedly knew their victims to be innocent.  In the second, military officers believe themselves to be targeting Taliban or al-Qaeda fighters—though of course their information is often faulty.  And, of course, the soldiers should be prosecuted for their alleged crimes.
But the strategic effects of these incidents is little different.  Who would you hate more if your home was destroyed and your children killed by Predators?  The Taliban fighters who the missiles were intended to kill and who were conducting operations in your area—or the American military and CIA personnel sitting at their desks in Creech Air Force Base?  Perhaps both equally—but, more likely, those who pulled the trigger.  Nor is a grieving Afghan likely to care about the legal niceties that help the drone controllers sleep at night–or be assuaged by the payments the U.S. government sometimes disburses to relatives of its collateral carnage.
To my mind, the closest analogy to this situation comes from Vietnam:  The well-deserved prosecution and conviction of Lieutenant William Calley for the My Lai massacre–at about the same time that the U.S. government was carpet-bombing Vietnam and Cambodia to the tune of untold thousands of civilian deaths—all with the broad rationale that we would thereby win hearts and minds.

No doubt our new smart bombs and drones kill fewer innocents–though still far too many, given the futility of the “war on terror.”  But if I were an Afghan grieving over a drone’s dismemberment of my family, would I care about this sign of “progress?”


Wikileaks and “War Crimes”

Last Monday, Julian Assange told reporters in London that the Afghan War Diaries reveal war crimes in Afghanistan, and reiterated this statement on Democracy Now! midweek. The claim has been widely reported and is being reported as fact by some sources. This installment in my series on the Wikileaks story will evaluate this claim and correct a few conceptual inaccuracies circulating in the press coverage.

But first, here’s what this post is not arguing. I am not arguing that no evidence of war crimes exists in the war logs. Actually, it would surprise me if there are not some genuine international humanitarian law violations evidenced in those documents, as some occur in every war, and many are already well known to have occurred in this war. Any new allegations should be investigated immediately by the responsible governments (if indeed they have not done so already).

That said, several of the examples Assange has given in his interviews so far or that have been reported in the press are not actually war crimes, and those that may be have long been known to those following the war.

This brings me to three important points about whether Assange’s “revelations” of “war crimes” can justify the potential risks to which he exposed others in “blowing the whistle.”

1) The Term “War Crimes” Refers to The Means By Which War is Waged, Not the Question of Whether War Itself Is Legal or Ethical. The laws of war are divided into two categories. The first is the law on the use of force governing whether specific wars are justified (grounded in the UN Charter regime). The second, which includes the law of armed conflict (Hague Conventions) /international humanitarian law (Geneva Conventions), governing how war may be conducted whether or not it’s justified, as well as the treatment of non-combatants. The concept of “war crimes” refers to grave violations only of the second set of treaties; a widely accepted list of war crimes appears in the Article 8 of the Rome Statute establishing the International Criminal Court.

Assange’s main point seems to be that war itself is hell, rather than that soldiers have sometimes behaved in hellish ways:

This material shines light on the everyday brutality and squalor of war. The archive will change public opinion and it will change the opinion of people in positions of political and diplomatic influence.

Well, war is hell. (Though, sometimes, so too is peace.) But the fact that interstate war brings with it “squalor and carnage” doesn’t necessarily imply war crimes. For that we need to look at how soldiers are conducting themselves in a given war, and we need a basic familiarity with relevant treaty law.

2) Not Everything Bad That Happens in War Is A War Crime. Here are some things Assange is talking about that are definitely not war crimes.

Accidentally Killing Civilians. The US does an awful lot of this, and I’ve argued before that that policy is ethically bankrupt. But it’s not a war crime, as the Geneva Conventions drafters accepted that unintentional deaths may occur in wars. Killing civilians on purpose is a crime, but the US does not have a policy of intentionally murdering civilians. Quite the contrary. Although there have been cases where US individual soldiers committed war crimes, official US policy has in fact been, in recent decades, to incur ever greater risks in order to avoid hitting civilians. The best of intentions don’t mean civilian casualties will ever be zero in a conflict zone. But Assange’s claim that civilian casualties have been tragically high doesn’t equate to evidence of war crimes – at least not necessarily.

Starting a War in Which Your Enemy Then Purposely Kills Civilians. The Taliban does appear to have a policy of intentionally murdering civilians. In fact, many of the “war crimes” described in the Afghan War Diaries – such as IED attacks on civilians – are actually Taliban crimes. It’s disingenuous for Assange to claim that the US war itself is responsible for these actions just because we started the war, since the Taliban were also intentionally slaughtering well before the 2001 air war.

Failing to Keep Accurate Track of the Number of Accidental Civilian Dead. The reports definitely demonstrate this pattern to an enlightening degree: when US troops hit civilians accidentally, the field reports often gloss over evidence of the body counts. I think this is terrible practice, but to my knowledge this isn’t a violation of war law, because (to my knowledge) governments are not actually required to record and disclose civilian casualties. If I’m wrong on this one someone point me to the relevant provision in treaty law; I haven’t researched it closely, though Stephanie Carvin has, drawing the same conclusion.

3) Revelations of Things We Already Knew Aren’t Revelations.A number of practices in Afghanistan evidenced in this report are in fact argued by some including myself to be war law violations. But these practices had already been long documented and condemned prior to the Afghan War Diaries.

Assassination of Alleged “High-Value Targets”. The documents “reveal” that ground troops are engaged in missions to kill specific terror suspects, which in some cases (though not all) are arguably war law violations. (I say arguably because while I would have argued that suspected militants should not be considered legitimate targets unless engaged in hostilities, the Obama Administration and some legal experts whom I respect disagree with me.) At any rate, this debate over “targeted killings” is an old one. How are the actions of Task Force 373 any different from those of drone pilots assasinating suspected militants (and their families) from the air? In both cases, US troops hunt suspected insurgents by stealth instead of engaging them in the open, and take them out often along with a multitude of innocents. In either case, the central war law issue is the same: is it right for our armed forces to kill people, even bad people, who are not at that time engaged in hostilities (that is, is any civilian area where a suspected militant might be at the moment a legitimate military target?) (I say no; the Obama Administration has argued yes.) If the public wasn’t already incensed enough about this to force policy changes, I’m not sure how this new evidence of the same practice engaged in by ground troops is going to tip the balance.

Unacceptably High Levels of Collateral Damage. Well yeah. Many of us have been saying this for years. The Administration hasn’t listened, and aside from the fact that researchers like me can now calculate exactly how unacceptably high they are (more on that soon) and maybe capture variation in the unacceptability barometer for various rules of engagement to conduct a precision human security analysis, there’s no there there.

A Polish My Lai? One story Assange describes on Democracy Now! is an alleged massacre of civilians by Polish ISAF troops, and this is the sort of thing that indeed qualifies as a war crime. But this too was already reported at the time. And unlike My Lai, there was no need to “blow the whistle” on this one, because it was never denied or covered up: the Polish government has already exhibited due diligence by investigating and trying those responsible. According to the Warsaw Business Journal:

A Polish investigation linked seven members of the Polish military with the attacks. A trial to determine their guilt began in February 2009 and is ongoing. The defendants face prison sentences of between 12 years and life for the killing of civilians and/or firing on an unarmed target. It is unclear whether the Wikileaks documents will have any affect on the court proceedings.

If so, Assange may have undermined due process in a criminal proceeding – one of many potential knock-on effects of his disclosures whose true extent may never be known. He has also apparently broken Polish law. The same article asserts:

Another revelation contained in the incident reports is the name and rank of the Polish counter-intelligence officer involved in the investigation of Nangar Khel. The publication of this information is a crime in Poland, carrying a sentence of five to eight years in prison. It is also a crime in the United States, as evidenced by the Valerie Plame investigation of 2003.

One Final Thought. Though I remain highly critical of Assange for dumping sensitive data online indiscriminately, I feel compelled to emphasize that I am not an opponent of whistle-blowing per se. In fact, I strongly support whistle-blowing specific cases of actual war crimes – like an actual “My Lai” where the responsible government is covering up the incident rather than prosecuting the offending troops – in a way that calls attention to perpetrators and their bystander governments while protecting the identities of vulnerable populations. (Which is not, however, what Assange has actually done here.) More on all that in a future essay.

[cross-posted at Lawyers, Guns and Money and Current Intelligence]


Basterds All

Blogging was light over the weekend while I was in DC on field research. But at least I finally got to see Inglorious Basterds while visiting my brother. Whew. Various bloggers have complained about the questionable values imparted in the film and a human security specialist can’t really argue with that.

But then again it wouldn’t be a Quentin Tarantino movie otherwise… see? See?

Actually, I thought that compared to his earlier stuff this was pretty tame. (Or maybe I’m just desensitized. Yeah, that’s probably it.) I was much more intrigued by the historical revisionism in the film’s premise than I was in the narrative about soldiers acting unjustly in the context of a just war. I think the suspension of disbelief required by the ending undermines the power of Tarantino’s depiction of violence – by forcing us to figure he’s painting a picture of an alternative timeline where the war ended differently, he’s inviting us to believe that in fact “our boys” would never really have behaved that way – instead of destabilizing our cherished assumptions about the “good war.” Ha.


Apologies Matter

It is very, very significant that Lieutenant William Calley openly apologized for his behavior in the 1968 massacre of hundreds of civilians in a series of villages known as My Lai. Anyone who has read Joanna Bourke’s account of the event, which included not just killings and looting but also rape and sexual mutilation of women and young girls, and the subsequent denials, excuses and justifications by the culprits will grasp the importance of Calley’s about-face.

Robert Koehler disagrees.

If you steal $10 from your mother, you need to apologize. If, as you carry out orders, you lead a raid on a village that slaughters 500 or more defenseless people, something of a higher magnitude is required before you can have your life back.

But what exactly? Koehler is suggesting he “atone,” that is devote his life in some way to challenging the militarism that creates My Lais and Abu Ghraibs. But to me that would undermine an apology – which is an acceptance of individual culpability. However laudable such a crusade may be, Calley could not be an effective ambassador for a more humane military through any other means that by accepting his own responsibiltiy without finger-pointing. If all soldiers did this consistently, commanders would have no power to commit war crimes. When we remove the moral responsibility from individual actors and place it on “the system” we participate in moral disengagement. I am not saying the “system” doesn’t matter and shouldn’t be changed. I am saying that to prevent war crimes you need acceptance of responsibility at both levels, and there can be a zero-sum relationship in the way we cast blame.

Koehler’s post goes on to demonstrate as much: he dismisses Calley’s apology as meaningless and even unnecessary given the wider web of criminality in which he was admittedly embedded in Vietnam.

As a matter of principle, I refuse to waste time heaping my allotted teaspoonful of disapprobation on a scapegoat. Calley’s “responsibility” for My Lai, though personally enormous, is a minute fraction of the symbolic role — the Bad Apple in an American Uniform — he was forced to fill. He was, indeed, just following orders. And the first order of war is to suspend your humanity.

But that’s too simplistic. Hugh Thompson, the US helicopter pilot who intervened during the massacre, was embedded in the same context and chose to behave nobly. We can and must hold individuals responsible, even as we insist on holding their superiors responsible as well.

The fact is, Americans did neither in the case of My Lai – which meant they too were to blame. Unlike stealing money from your mother, Calley did not “have to” apologize to “get his life back.” Instead he chose to, and this choice is such a politically significant diversion from forty years of practice that it would be wrong to belittle its importance – precisely because it signals to Americans that that choice to support rather than condemn him itself was wrong.

Apologies for atrocities matter.
They matter psychologically in healing the rift between victimizer and victim, and their national communities by extension. But they matter even more for communicating collective norms to one’s own in-group. As long as Calley could openly pretend that My Lai wasn’t a grave breach of the warrior’s code, and get away with it, one could argue he was living in a culture that condones war crimes. Apologies by men and women like Calley – or England, or Wuterich – are data points suggesting a turn in the normative environment: toward one in which war crimes, if not entirely absent, are at least acknowledged for what they are.


The “Neda” Effect in Sri Lanka

Yesterday Channel 4 in the UK aired the above video, allegedly recorded on a mobile phone and smuggled out of the country by human rights activists, apparently of Sinhalese soldiers massacring Tamil noncombatants earlier this year. The Sri Lankan government (naturally) argues it is a fabrication. Human Rights Watch’s James Ross says “there is no way to tell if the footage is genuine,” but argues that the release of the film underscores the need for an “objective” inquiry into atrocities – by both sides – during the conflict.

I agree with Human Rights Watch in general – that whatever the validity of the film, truth-letting is politically necessary in order to move the country beyond two and half decades of armed struggle.

But I’m not so satisfied with Ross’s claim that we can’t know if the film itself is valid, since ultimately footage like this will increasingly matter, in Sri Lanka and elsewhere, as post-conflict justice is pursued through courts.

Anyway, are there really no standards of evidence emerging for user-generated video such as this? Channel 4 at the UK has described the measures it took to authenticate the film before airing it, including qualitative comparisons to similar footage from the Bosnian war. It’s interesting to think about what kind of authentication could hold up in a hypothetical war crimes court.

Would it not be useful to know more, for example, about how the UK acquired the video? How it made its way from the soldier who shot it to the human rights activist who passed it along to the journalist? One can imagine a number of legitimate scenarios; one can imagine others. Answers to these questions can be found, and have a bearing on the credibility of the film. Retracing that chain to the original cell phone could lead to additional facts of the case, a skill already in use by cyber forensic researchers in domestic contexts. And relevant evidentiary standards must be under development by US law enforcement agencies, cell phone video is increasingly being used to investigate criminals and agents of the state alike.

Not being a cyber forensics expert, I don’t claim to know what these standards are or offer suggestions as to how to view this particular video artifact. But such solutions should be devised, as claiming “one can never know for certain” will ultimately be self-defeating for the human rights community, feeding into the denials of abusive governments. The “Neda effect” – the use of cell-phone video to capture and make visible acts of brutality – has the potential to shift the balance of power between governments and citizens, but also the potential for abuse and misdirection. Human rights organizations should be taking the lead in figuring out how institutions of international justice can leverage such technology while mitigating its side-effects, rather than shrugging it off altogether.


A Nuremberg for Guantanamo?

GUÉNAËL METTRAUX, a international criminal defense attorney in the Hague, published a modest proposal regarding the Guantanamo detainees in today’s New York Times: instead of trying the detainees in military commissions or US courts, set up an international tribunal under UN auspices:

Trying these men stateside would necessarily require the compromise of long-cherished principles of American law. Yet continuing to hold them without the prospect of a fair trial or delivering them to undemocratic governments are alternatives not worthy of the Obama administration or of the United States.

America’s own endeavors at Nuremberg offer a way out of this impasse: an international tribunal for detainees. Such a tribunal would allow the Obama administration to finally try these individuals and close down Guantánamo — and it would bring the nation back within the tradition of law and justice that it so forcefully defended six decades ago.

We need not look as far back as Nuremberg. Recent international tribunals for Sierra Leone, Cambodia and Yugoslavia have provided fair trials in challenging political environments to men and women accused of the gravest of crimes. In The Hague right now, an international criminal tribunal is looking into the terrorist attacks that shook Lebanon in 2004 and 2005. This tribunal — created by the United Nations Security Council at the initiative of the United States, among others — provides a ready model of a court capable of dealing with the detainees.

But it does actually matter whether he is talking about a Nuremberg or a hybrid international court similar to those previously set up under the UN. For example, only by confusing the two would he seem so confident an international tribunal would be less, rather than more constrained than US courts on grounds of due process. Historically speaking, late 20th century tribunals have had higher legal standards than domestic courts, and often more complex ones, sometimes drawing on multiple legal traditions from different countries. (Nuremberg indeed adopted more flexible standards such as, ex-post-facto justice, but this has been widely criticized and corrected in more recent institutions which tend to err on the side of the rule of law.)

Contemporary international tribunals, unlike the Nuremberg and Tokyo tribunals, are also notorious for trying criminals on both sides of a conflict. There are those who would argue that certain US officials should stand trial in the same court for their sins during the same “global war” – just as the ICTY tried and convicted combatants from all sides of the war in ex-Yugoslavia.

If the court Mettraux foresees is indeed another Nuremberg, this would be a significant digression from, rather than an extension of, the normative and legal precedent set by the existing UN and hybrid tribunals set up in the 1990s. I think an international tribunal is a fine idea but I doubt, as he seems to think, that the US can have its cake and eat it too.

What of the practical workings of such a court? Mettraux imagines that:

Those now held in Guantánamo would be placed under international control and their trials held on neutral ground. American and foreign judges and prosecutors with experience in international criminal cases would then be enlisted to provide the expertise required to hear these types of criminal cases. As with the Special Tribunal for Lebanon, it would be paid for by a combination of American contributions and voluntary donations from other nations.

Law professor Michael Kelly, blogging at the Jurist, is skeptical that this would be as easy as it sounds:

“Placing it in Afghanistan (where most of the detainees were captured) would be problematic for obvious reasons. So to would be staffing it with a blend of local and international specialists. Afghanistan is barren of an effective bench and bar.”

But Kelly doesn’t oppose the idea in principle. And he raises another interesting point: the importance of incorporating Islamic jurisprudence into the Statute:

“Participation from the Islamic legal world in the development and functioning of international criminal law institutions is meager. Buy-in from that sector would be critical to the tribunal’s legitimacy. Geographic placement in Cairo instead of The Hague would also be a symbolic and meaningful gesture. The well-developed lawyer class in Egypt could be tapped to assist, as well as the penal system – keeping Islamic convicts in jail in an Islamic country.”

But Kelly cautions against idealism about the process, and I concur. It’s a good idea, but let’s not treat it at any kind of an easy solution – legally, logistically, financially or politically.

Still, to paraphrase both Winston Churchill and Gary Bass, international tribunals are a bit like democracy: the worst form of post-war justice in the world… except every other kind.


Science Fiction, Popular Culture and the Concept of Genocide

Claims of “genocide” abound in policy discourse. So do misunderstandings about the concept.

Some recent examples. In the last two years, Russia claimed that Georgia’s attack on Tshkinvali was “genocide;” US House of Representatives accused Iran of inciting genocide in response to Ahmadinejad’s inflammatory comments about wiping Israel (as it is currently politically constituted) off the map; and Gideon Polya apparently discovered a correlation between countries experiencing “war, genocide and occupation” and the failure of those countries to win Olympic medals.

These examples demonstrate both the political salience of the “genocide” label as a catch-all term for “evil-doing,” and the general lack of understanding of a relatively narrow term which connotes a set of actions aimed to destroy national, political, religious or ethnic groups, not to describe all the other horrors against individual human beings of which Mankind is capable, and certainly not all forms of deadly political violence. At the heart of this misunderstanding is a confusion about the distinction between group rights and individual rights.

Popular culture often doesn’t help. So I argue in my new essay “The Enemy We Seek to Destroy,” just published in Adam Jones’ collection Evoking Genocide. The article analyzes narratives about “war crimes,” “crimes against humanity” and “genocide” in the science fiction series Star Trek: The Next Generation, and focuses particularly on the Federation’s understanding of ethical conduct vis a vis a truly genocidal enemy, the “Borg.”

Excerpts from my essay are below the fold.

Star Trek, a cultural phenomenon that encompasses the original TV series, five spin-off series, ten feature films, and numerous books, comics, games, magazines, and fan websites, has long been understood by cultural theorists as a political commentary on contemporary world affairs. Those of us who have followed it closely see it above all as a morality play. Episodes routinely discuss timeless issues of what it means to be a person; whether good can triumph over evil; the relationship between emotion and reason; the meaning of free will; and the nature of justice.

As a young person, and later as a budding human rights theorist, I perceived in Star Trek a commitment to liberal individualism and a respect for cultural self-determination. In that sense, the “United Federation of Planets” – the cosmopolitan organization that dispatches the Starship Enterprise to its distant realms – opposes violations of both individual and group rights. Growing up, the show was a constant touchstone for my emerging ethical and political consciousness. In several episodes, the Enterprise encounters planets where genocidal practices are in place. Each case is treated as the outer limit of the non-interference doctrine (the Prime Directive), which might be read as an early articulation of the norm of humanitarian intervention.

Against this background of appreciation for the show’s moral universe, I later found myself, somewhat to my surprise, disillusioned by a particular episode, one in which the Federation itself contemplated genocide against an alien collectivist culture. The Borg are a cybernetic race who evolve through assimilating organic species, and their technological distinctiveness, into their own cyber-collective – linking individual “drones” to a single collective consciousness. In the fifth season episode, I, Borg, the Enterprise encounters the crash site of a Borg scout ship, along with a lone Borg survivor. At the insistence of the doctor, Beverly Crusher, the drone is taken aboard for medical treatment – although the inclination of the other officers is to shoot the drone, since “the collective will come looking for it.” (In fact, the Borg have engaged the Federation previously, with the goal of assimilating Earth’s entire civilization into their collective. Picard was once abducted by the Borg, which possibly explains his no-holds-barred attitude.)

When the drone recovers consciousness, Captain Picard hatches a plan to introduce an “invasive programming sequence” into the drone’s subroutine. When the drone interfaces with the Borg collective, Picard hopes that the computer virus will “infect the entire collective” and “disable their neural network,” in effect shutting down their brain, and eliminating them as a threat to the Federation. Over the course of the episode, however, the crew is forced to reconsider this plan, as the Borg drone, now severed from the collective, begins to function as an individual, evoking the sympathy of the crew and respect for his rights.

What immediately struck me about this sequence is that, while the characters eventually come to view harming the individual Borg as wrong, the idea of genocide (as a crime against a collective) is never fully critiqued. Most of the officers accept with very little discussion that eradicating the Borg collective as such is an appropriate course of action. Crusher is alone in questioning the policy of genocide. Other officers concur with Picard: “We’re at war”; “They’ve attacked us at every encounter.” But even Crusher appears implicitly to accept the crew’s argument that exterminating the Borg as a collective could be justifiable on grounds of self-defense. Her disagreement focuses on whether exterminating individual Borg non-combatants is ethical. She does not concur with Picard’s argument that individual drones lack rights. Were collective rights her reference point, Picard’s argument about the Borg collective consciousness would not have been “convenient,” but would rather underscore the atrociousness of targeting that civilization-defining consciousness.

Subsequent to this scene, the morality of destroying the Borg collective as such is evaded. The ethical debate in the episode (for in Star Trek, there always is one) centers only on whether the “invasive program” would violate the rights of Borg drones as individuals. Dr. Crusher does argue on behalf of the Borg prisoner: “When I look at my patient, I don’t see a collective consciousness. I see a living, breathing boy who has been hurt and needs our help.” But this is reminiscent of protections for wounded prisoners enshrined in humanitarian law. She also continues to question the ethics of “using” an unsuspecting individual to destroy his people, though increasingly the targeting of “the people” itself is lost in the discussion.

Crusher’s claims are validated as the episode progresses. The drone, now separated from the collective, begins to exhibit individual traits, and becomes increasingly identifiable as a person. Thus, while early on Picard had used classic genocidal rhetoric in encouraging his crew not to become too attached to “it,” he eventually comes to view the prisoner as an individual worthy of respect, protection, dignity, and choice. In many respects, the episode is a study in the power of dehumanization to enable atrocity, and of rehumanization to restrain it. But rather than transforming Picard’s understanding of the Borg collective, this newfound sensibility simply provides him with a different set of concerns to weigh against the supposed moral viability of genocide. The goal of eradicating the collective continues to hold sway throughout the episode, but it becomes difficult to justify forcing the individual drone to return to the collective like, as Crusher puts it, “some sort of walking bomb.”

In fact, it seems that the ability to view the drone as worthy of rights at all is contingent on viewing him as distinct from the Borg, rather than as an individual of a sentient race that ought not to be exterminated on principle. This is perhaps best exemplified by Picard’s statement, when he finally concludes that it would be wrong to bring the plan to fruition: “To use him in this manner would be no better than the enemy we seek to destroy.” Destroying the enemy “as such” is not questioned – only the use of a sentient individual as a tool for this purpose. This is thoroughly inconsistent with the rules of war in liberal international society, as well as the rules of engagement in the Star Trek universe. There, one does not seek to destroy one’s enemies, but merely to defeat their military forces, and perhaps transform them into allies.

To my mind, the Borg episodes in general, and this one in particular, engage a range of ethical questions relating to the concept of genocide (or xenocide?). First, are genocidal strategies appropriate against an enemy bent on committing genocide themselves? That is, is genocide justifiable if committed in self-defense? If so, what is the burden of proof for demonstrating that defense against genocide is impossible with less draconian methods?

Second, if an entire society is mobilized (as the Borg arguably are), does treating that society as a military objective constitute genocide, or would it be consistent with the laws of war that permit targeting military objectives? (That is, is it only genocide if the targets are non-combatants, or is the reference point the existence of the collective entity itself?) Are the laws of war obsolete when defeating an entire military would, essentially, require the destruction of an entire society? Is destruction of a civilization as such acceptable, even appropriate, if the destruction takes place through non-lethal means and is carried out so as to liberate “oppressed” individuals from a cultural context inimical to their own individual freedoms? And how should a military officer respond, when given a command that could be deemed profoundly unethical?

“I, Borg,” and Star Trek more generally, offers an opportunity to meditate on these issues. Indeed, as a multimedia phenomenon, it promises (and often delivers) a careful, nuanced grappling with some of the important political problems of our day. In this instance, however, I think the show missed an opportunity to educate viewers about the nature of genocide both as concept and as crime: as something distinct from war, and from questions of individual human rights. Apparently, even the most liberal ethical narrative can accommodate genocidal thinking within certain parameters. This should give us pause.


Bush Confesses (Without Being Tortured). Now What?

Earlier this year I threw up some results from a survey of folks interested in the concept of “human security,” in which my research team asked them to name the most important items on the human security agenda; and also to answer the question: “What problems do you know of that are not getting enough attention from the human security network?”

A first cut at coding this data shows highly salient issues include the following:

Problems not receiving enough attention, mentioned by at least one respondent, included megacities, leprosy, cyberterrorism, social exclusion, traffic accidents, high sex ratios, and “liberation of hostages, famous or not.”

One of these low-salience issues in particular stayed in my mind this week as I kept an eye on the news: “Impunity for world leaders who committed war crimes or crimes against humanity while in office.” It didn’t make the NYTimes headline this morning, but if I heard Bush correctly yesterday, he basically admitted to having signed off on torturing detainees during his administration.

Let’s leave aside the fact that “sure, I tortured” ranks pretty high among those things you’re not supposed to say as a sitting head of state, even if you’ve been there done that. Really, the important question is what the Obama administration should do about this legacy once taking office. Not about reversing Bush’s torture policy, which is largely a given. About holding the previous head of state accountable for that torture policy. And yes, it’s quite interesting to see so little attention to this building a norm to do precisely that. Sure there’s the international criminal court, but that’s an institution with a limited mandate and short reach. What about the responsibility of new governments to hold their predecessors accountable for crimes committed while in office? What about an international movement to create such a standard for democratic regimes?

At Harper’s, Scott Horton argues that there is a strong historical precedent for future leaders punishing a previous leader who willfully violates the laws of nations. Torture is a crime of universal jurisdiction, ranking right up there with genocide. The emphasis of activists so far have been simply to roll back Bush’s torture policy, but there are real questions to be asked about whether the international criminal regime has got to a point where it can reach and punish harms inflicted by the President of the most powerful country in the world.

As long as Bush stays in the US, the answer is probably no. But that doesn’t mean that the incoming administration couldn’t take steps, or that the human security community could not work harder to generate a sense of obligation for all governments to do the same.


International Justice: Miscarriages and Misconstruals

The latest on atrocity allegations between the parties to the smoldering conflict in the Caucasus, from the New York Times:

In South Ossetia, investigators began to look into accusations of atrocities. Human Rights Watch reported that researchers witnessed “terrifying scenes of destruction” in four ethnic Georgian villages, and said the villages had been looted and burned by South Ossetian militias.

Some thoughts: I’m happy to see a joint like Human Rights Watch has got boots on the ground, but surprised it’s allowing its researchers to issue subjective statements like this, which have very little value other than for propaganda. How terrifiying a scene of destruction may be is probably as much a product of how inexperienced or, on the other hand, jaded, a particular HRW researcher is as of any objective facts. Come on, how about some specific evidence to help us sort out competing claims of atrocity? That’s your comparative advantage, eh?

Anna Neistat, one of the researchers, said by telephone from Tskhinvali, the capital of South Ossetia, that they had found no evidence to substantiate Russian assertions of widespread brutality by Georgian troops. Human Rights Watch has been able to confirm fewer than 100 deaths.

Now, that’s very interesting. Doesn’t mean, of course, that there weren’t plenty more deaths… HRW errs on the side of conservative estimates, and deaths are often hard to confirm in these cases. But bear in mind that civilian dead doesn’t necessarily mean war crimes, since it’s perfectly legitimate under international law to kill innocent people as long as you don’t mean to. In other words, the equation of civilian body counts with “war crimes” is problematic. What matters is whether you can reasonably infer from the evidence of targeting decisions that the belligerents did not make attempts to minimize civilian casualties. Judging by the liberal body counts put forth by both sides, I’d say the evidence is scant so far… even 2,000 civilian dead sounds low to me if a military like Russia’s is hell bent on mowing down the innocent… what seems to have happened here was well-intentioned efforts to evacuate civilians from besieged areas, followed by attacks on infrastructure that caught some of the remaining civilians in the cross-fire.

Then there’s the looting that BBC reported in Gori:

“Russian tanks were in the streets as their South Ossetian separatist allies seized Georgian cars, looted Georgian homes and then set some homes ablaze.”

But again, let’s be careful not to infer a systematic Russian plan to commit atrocity from some random acts by victorious soldiers: this is quite typical in areas taken by siege (not excusable, of course, but typical): what we should watch for is how Russia reacts and whether there materializes any evidence that troops were instructed to behave this way. Only then can you claim that this constitutes evidence of a policy of anything like “ethnic cleansing.”

This is a term, by the way, of which we increasingly hear both parties accused. Before we toss it around too loosely, it’s useful to reflect on its history. Ethnic cleansing was a euphemism for forced displacement, originally developed by the Bosnian Serb Army drawing on Nazi discourse, and signifying the “pollution” of territory by the wrong ethnic group. It was ironically appropriated by Western powers during the conflict in ex-Yugoslavia as a way to avoid calling the killing “genocide” and invoking the responsibility to intervene. Conceptually, it best describes efforts to move people off disputed land in order to create a one-to-one relationship between nation (as a people) and state (as in territorialized political entity). In short, it’s both broader than “killing of civilians” (because it involves a concerted strategy to clear land, not simply to kill) and narrower (because it can involve merely displacement, not killing). As far as I know, however, ethnic cleansing is not a legal term reflected in any international treaty. Forced displacement, however, is a war crime – if indeed it’s occurring, rather than simply regrettable but unavoidable collateral damage.

Finally, returning to the New York Times:

Russian leaders have said they would like to bring Mr. Saakashvili to face war crimes charges in The Hague. Meanwhile, Georgia has filed a lawsuit against Russia at the International Court of Justice in The Hague for its actions on and around Georgia from 1991 to 2008, the court said in a statement.

This characterization would seem a little more accurate than the Georgian Deputy Interior Minister, who was quoted as claiming that:

“Georgian government is going to lodge a suit against Russia at the International Criminal Court (ICC) in The Hague, said Eka Zguladze, Georgia’s Deputy Interior Minister… Zguladze said that the suit contains facts of genocide against Georgians in Abkhazia in 1992, current developments and Russia’s acts in Georgia. Earlier, Russia announced it intended to file claims against Georgia at the ICC and the European Court of Human Rights in Strasbourg for the Georgian attack on South Ossetia. Russian prosecutors are now collecting evidence of genocide in South Ossetia.”

Georgia of course cannot “file suit” at the ICC in the Hague, since only the International Court of Justice functions like a civil court in which countries can sue one another: the ICC is a criminal court in which individuals are tried by an international institution, not by states.

Russia’s request that the ICC investigate war crimes and “genocide” make more procedural sense… but Russia will have to come up with more than 100 civilian dead to support an indictment like that, and also perhaps read up on the definition of genocide, which isn’t based simply on the killing of civilians but rather on the intent to wipe out a specific national, ethnic, racial or religious group – so far their version of events hasn’t really supported such a claim, just a claim of “war crimes” at best. But it’s cool to see them get behind the idea of international justice: so far they’ve refused to ratify the ICC statute, and Sudan was so confident of their anti-ICC stance that it recently asked Russia to block the indictment of Bashir in the Security Council. Perhaps the quest for the moral high ground will have a healthy socializing effect on Russia; one can only hope.

As for Saakashvili’s lawsuit at the ICJ, good luck: that court has less authority than Judge Judy. However I hope the case goes forward because it will contribute to clarifying some of the fascinating legal questions brought to the fore by these events, such as: is S. Ossetia a state? To what extent is sovereignty dependent on “the will of the people” in international law? How might nations understand the threshold requirements for the Responsibility to Protect? Excellent coverage of legal issues pertaining to this conflict here and here.


(Soft) Power Politics

Lots went on in international criminal justice this past week.

A few thoughts about three big news stories and a smaller one are below the fold.

1) Omar Bashir was indicted by the International Criminal Court. I was less surprised by the fact that a sitting head of state might be charged than that the list of charges actually included genocide. Not because the facts on the ground don’t suggest they should, but because of the nature of the crime and the nature of the court.

a) Genocide is an “intent” crime – to convict you have to prove not just that atrocities occurred, but that they were carried out with the specific intent to destroy a national, ethnic, racial or religious group. Historically, it’s been much easier to convict people for war crimes and crimes against humanity than for genocide, because few nefarious leaders are careless enough to leave a paper trail. Bashir, for example, has been a master of plausible deniability.

b) As a new institution still struggling for credibility within international society, the ICC has an explicit policy of going after only the most clear-cut cases, cases that it is likely to win. (Unlike its “activist” predecessors, the ICTY and ICTR, whose judges often made history with their interpretations of international law.)

But, perhaps this is a move calculated to make sure that some of the charges can in the end be dismissed. I predict the genocide charges won’t stand, for the same reason that the UN couldn’t condone a finding of genocide in its 2005 report on Darfur; but that crimes against humanity will. Then, the court can give the impression that it is evenhanded and apolitical.

2) Radovan Karadzic, former President of the Bosnian Serb breakaway republic in the former Yugslavia, was captured. I had little but kudos to say about it last Tuesday, but have followed a rather disturbing trend since whereby commentators and journalists refer to Karadzic as a “war criminal.” (I’m guilty myself, having cited Robert Farley’s blog post entitled “Genocidal Maniac captured.“) But the whole notion of international criminal law as rule of law is that a man like Karadzic is only a war crimes suspect until he is tried and found guilty. (At present, therefore, we must keep in mind that he is only an alleged genocidal maniac.)

3) The trial of Salih Hamdan, bin Laden’s former driver, will go forward at Guantanamo Bay after Hamdan’s attorney exhausted efforts to have it dismissed. The trial has been touted in the press as the first “US war crimes trial” since Nuremberg, though it’s really nothing of the sort.

a) The defense will argue that Hamdan was at worst a low-ranking al-Qaeda employee; and that much of the evidence against him was either coerced or provided willingly to military investigators on the hunt for bin Laden: Hamdan was not told that he was incriminating himself when he cooperated with the government.

b) The USG will argue that a terrorist is a terrorist, sexual humiliation isn’t degrading so evidence gained this way is admissible, and Miranda rights don’t apply to non-US citizens anyway so Hamdan’s cooperation with the USG doesn’t erase his crimes.

Leaving aside the question of whether a civilian who drives a car for the “enemy” has committed a “war crime,” one wonders about the implications for HUMINT operations if the USG develops a reputation for taking this stand. Which defectors from al-Qaeda or any other entity will provide us with actionable intelligence if we thank them by putting them on trial? Here is a clear case where following international rules is also in our concrete interest, a point continually lost on the Bush Administration. Good coverage of the Hamdan case over at SCOTUSblog.

4) Finally, John McCain told Wolf Blitzer that he could imagine bin Laden being prosecuted in an international court. If he means the International Criminal Court, the attacks of 9/11 couldn’t be prosecuted there: only crimes committed by al-Qaeda after July 2002 would fall within the court’s mandate. But more interesting is what this statement tells us about the likelihood of the US joining the ICC after the next election. Kevin Jon Heller writes about this and Obama’s position on the ICC at Opinio Juris.


Rap(e)in(g) International Law

The Guardian reports a great triumph for women’s rights at the United Nations Security Council, which has recently passed a new resolution condemning sexual violence as a war crime and a component of genocide.

I’m thinking: how does this new resolution go beyond SCR 1325 of 2000, which called on governments not only to “respond to” but to actually “prevent” sexual violence? Since rape has already been recognized as a war crime since at least 1949, and since it is now also recognized, when perpetrated by an agent of the state, as torture (in the ICTY statute), as genocide (in the Akayesu ruling of the ICTR), and as a crime against humanity or genocide under certain circumstances (in the Rome Statute of the International Criminal Court), what exactly does it mean for the UN Security Council to, again, be claiming this is so and for the media to report this as “news”?

One thing it may mean is that the Bush Administration is seizing upon a symbolic opportunity to appear to be championing women’s rights and international rule of law.
Those who have followed the development of gender jurispridence in the UN system ought to see through this, however. In fact, with its excessive focus on rape as genocide (which obscures the continuum of violence faced by women not just at the hands of enemy soldiers but indeed from their own men in wartime); in its emphasis on women, rather than rape victims of both sexes (yes, men are victims of sexual violence too – surely Abu Ghraib drove that home); and in its watered down language (UNSCR 1820 claims rape “can” be a war crime, whereas earlier documents state that it is) this resolution could even be a step backward.

A genuine step forward would not involve more pretty language after almost a decade of gaps in implementation. It would involve action.

What UNSCR 1820 does, however, is to securitize war rape. In other words, this resolution is not about promoting women’s rights. It is about governments recognizing – at least in theory – that systematic sexual violence undermines not just women’s rights but governments’ own security interests:

“Sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security, affirms in this regard that effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security, and expresses its readiness, when considering situations on the agenda of the Council, to, where necessary, adopt appropriate steps to address widespread or systematic sexual violence.”

Whether this is apalling or heartening depends on your theoretical perspective.

Full text of the UNSCR 1820 can be found here.

A helpful recent overview on rape in international criminal law is here.

Additional resources on gender crimes in international criminal law and jurisprudence can be found at the Women’s Initiative for Gender Justice website.


Ruminations from Yasukuni

While I was in Japan last week interviewing government officials about their “human security” foreign policy agenda, I visited the Yasukuni shrine. Readers may be aware that this memorial to modern-era Japanese war dead has been controversial in the region: victims of Japan’s imperial wars see it as a salute to war criminals, and the opposition in Japan considers any national monument to militarism a violation of the post-war constitution.

A Chinese documentary film about Yasukuni was released over the weekend in Tokyo amid stringent opposition from nationalists.

Most of the controversy focuses on the shrine itself, but I found Yushukan Museum much more disquieting. Although my guidebook told me that the shrine honors Japanese soldiers and civilians who died defending the Japanese empire, I found the museum focused on soldiers to the exclusion of civilians. Among the lauded artifacts is a steam locomotive from the Thai-Burma “Death Railway,” built by Allied prisoners of war. And told through the lens of Japanese nationalism, the history of Japan’s imperial wars looks rather different. For exampe, here is how the siege of Nanking is described:

Yet not all of the warrior imagery seemed propagandistic. I found myself contemplating a bronze statue near the entrance to the museum.

This is not an image of self-serving militarism, but of just warriorhood: the young man with the sword is assisting an injured elder, and sheltering a mother with children; he is showing the younger boy how to behave correctly with a weapon.

One might argue that such representations have some place in an international society that places value on the protection of human life from the worst of what armies do.

At any rate, pure pacifism must be a hard sell in a society whose members still recall fighting in the last of Japan’s great wars. My brother and I noticed old Japanese men reading the placards with great solemnity.

For them – perhaps even for a younger generation inured to the horrors of battle, such memory-keeping is vital.

What struck me most tooling aroud Tokyo beyond the shrine was how quickly the Japanese remade themselves as a society after World War II, forsaking their former militarism. Today, the emphasis in Japanese culture is on courtesy and “cuteness” or kawaii. (For a scholarly treatment of kawaii, see Anne Allison’s work in Postcolonial Studies.)

It is as if Yushukan contains all those feelings that have been so self-consciously excised from the rest of society. Perhaps, in that sense, it plays a role of some value despite the arguments of its critics.


Film class — week 6

Film #6 “Breaker Morant” (1980). We viewed it Tuesday.

Readings for Thursday: Krauthammer, Charles, “The Unipolar Moment Revisited,” The National Interest, Winter 2002/2003, pp. 5-17.

Fukuyama, Francis, “The Neoconservative Moment,” The National Interest, Summer 2004, pp. 57-68.

If you haven’t seen “Breaker Morant,” I highly recommend it. It is a great film about the dirty underbelly of the so-called “Boer War” (1899-1902). Its themes resonate today as much as they did when the film was made, not long after the Vietnam war ended. I assigned the film and readings as part of the section on “liberal internationalism.”

The film is set during an imperial British war, but it is really a courtroom drama. Three defendants, including the title character, are accused by the crown of violating the laws of war. They killed Boers who had surrendered, but claimed this “take no prisoners” approach was common practice in their unconventional unit (the Bushveldt Carbineers) constructed to defeat a slippery opponent (of “bitter enders”) that used nontraditional methods. The soldiers claim the practice implemented orders from their military superiors.

There is no question but that the British used brutal methods in the Boer war. They employed a “scorched earth” policy to starve out their opponents. Many thousands of POWs were transported out of the country so that they would not have to be fed locally, and tens of thousands of women and children were rounded up and put in camps. Substantial numbers died in these camps of starvation, disease and exposure.

It is natural to compare the British Boer war to the American experiences in Vietnam and Iraq. The trial, especially, brings to mind Abu Ghraib and the British strategy reminds one of the American military’s strategy in Fallujah.

The readings reflect a contemporary neoconservative debate about the prospects for the Bush administration’s vision of liberal internationalism. Krauthammer is a well-known booster, based in large part on his long conviction that superior American military power, combined with widely supported goals, grant the US the right to root out whatever threats it identifies and to promote democratic government around the world.

Fukuyama has become a neocon skeptic and thinks that military power is an ineffective weapon for pursuing these goals. He’s not a fan of nation-building, which he views as global social engineering, and thus thinks that US efforts are likely doomed to fail. Indeed, Fukuyama points to the many failings in Iraq and wonders how Krauthammer can write about the meaning of America’s supremacy given events on the ground.

Obviously, these readings are not directly on-point to the film, but they do get at the tension some would say is endemic in trying to promote democracy at gunpoint.

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