Civilians & the collateral damage rule

(Delighted to welcome back alumna Valerie Epps, who contributes this guest post on her paper entitled Civilian Casualties in Modern Warfare: The Death of the Collateral Damage Rule, which she'll be presenting as part of a panel at 9 a.m. this Saturday, October 22, at International Law Weekend in New York)

Members of the armed forces are sent off to war to kill enemy combatants. They are not sent to kill civilians.
We permit the “combatant’s privilege” (soldiers being allowed to kill enemy soldiers) in part because we understand that although civilians may be killed or injured in warfare, this will only happen occasionally when such death and injury is “incidental” to a legitimate attack on a military object. (credit for 2011 photo of U.S. Navy attack against Libya) Under the laws of war, civilians may never be targeted.
The collateral damage rule, as set out in Article 51(5)(b) of Protocol Additional I to the 1949 Geneva Conventions on the laws of war, prohibits

'[a]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.'

The collateral damage rule is meant to give protection to civilians in time of war in contexts where military and civilian targets are interwoven.
The latter statement, reflecting the usual assessment of the collateral damage rule, may simply be a method for tricking us into thinking that ethical military commanders, by following the rule, will, in fact, avoid all but incidental damage to civilians. Nothing could be further from the truth.
The nature of warfare has changed fundamentally over the last two centuries. Once inter-state warfare was a predominate type of armed conflict. Now, by far the most prevalent form of conflict is intra-state, or internal, armed conflict. It currently makes up about 90 percent of all armed conflicts.
At the same time, the ratio of military-to-civilian-war-related deaths has undergone a radical transformation. Stanley B. Greenberg and Robert O. Boorstin wrote in their 2001 article, People On War: Civilians in the Line of Fire:

'[I]n World War I, nine soldiers were killed for every civilian life lost. In today’s wars, it is estimated that ten civilians die for every soldier or fighter killed in battle.'

There is much discussion of the accuracy of various proposed ratios -- 10 to 1, 9 to 1, 8 to 1 -- and considerable debate on who should be counted in both military war-related deaths and civilian war-related deaths. Yet no one doubts that in almost all modern wars, civilian deaths outnumber military deaths often by several multiples. While it is true that intra-state wars are generally far less deadly than international wars, the ratio of civilian to military deaths remains disproportionally weighted to civilian deaths.
It may thus be concluded that the collateral damage rule, whatever its intention, is not fulfilling its purpose of protecting civilians in war time.
What should be done, when we find that a legal rule cannot or does not achieve its purposes?
All law tolerates some level of violations and lack of enforcement, but in this case, the problems go deeper. We sense that the world is not about to adopt a rule of pacifism, although that would be the simplest and most effective method of protecting everyone from the devastations of war. Nor doe we sense that the armed forces will completely draw back from attacking military targets if there is even the slightest chance that civilians could be killed or injured.
So what modest suggestions can be made to assist, in some small way, the fulfillment of the collateral damage rule’s wish to protect civilians?
► First, we need to acknowledge that we have a problem.
Wars are not just killing military personnel with a few civilians being killed incidentally. They are killing more civilians than members of the armed forces.
► Next, we could suggest that commanders in the field have Rules of Engagement that restrict severely the amount of acceptable civilian casualties.
Such an approach has had a dramatic effect in reducing civilian casualties in places like Afghanistan, although the military rank and file often protest such rules. (credit for 2008 Associated Press photo at left, by Alauddin Khan, of funeral of victim of suicide bombing in Kandahar, Afghanistan)
► Above all, we need a mandatory system for recording civilian deaths and injuries in war time. (IntLawGrrls' posts on this issue here.)
Although the Geneva Conventions require the recording of details of military personnel who die, are injured, captured or are missing, the requirements for keeping similar statistics for civilians are much less robust and many states do not keep any such statistics. In September 2011, the Oxford Research Group launched the Charter for the Recognition of Every Casualty of Armed Violence, which sets out the requirements for the recording of every casualty of conflict throughout the world. This is bold and necessary step to begin to bring us closer to protecting civilians in warfare, the goal of the collateral damage rule -- a rule that, at the moment, is more often breached than observed.

4th Chautauqua Declaration

As a cosponsor of the 4th International Humanitarian Law Dialogs, just concluded at the Chautauqua Institution in upstate New York, IntLawGrrls is proud to reproduce in full the 4th Chautauqua Declaration signed yesterday by a host of prosecutors from present and past international criminal courts and tribunals, depicted above. They are: top row left to right, Andrew T. Cayley of the Extraordinary Chambers in the Courts of Cambodia, Serge Brammertz of the International Criminal Tribunal for the former Yugoslavia, Fatou Bensouda of the International Criminal Court, James Johnson of the Special Court for Sierra Leone, and Bongani Majola of the International Criminal Tribunal for Rwanda; and bottom row left to right, Robert Petit of the Extraordinary Chambers in the Courts of Cambodia, David M. Crane of the Special Court for Sierra Leone, Benjamin B. Ferencz and H.W. William Caming of the International Military Tribunals at Nuremberg, and Richard J. Goldstone of the International Criminal Tribunals for Rwanda and the former Yugoslavia. (Seated next to Goldstone is Stephen J. Rapp, a former prosecutor at the Special Court for Sierra Leone. Now the U.S. Ambassador for War Crimes Issues, he did not sign.)
Here's the Declaration:

In the spirit of humanity and peace the assembled current and former international prosecutors and their representatives here at the Chautauqua Institution ...
Recognizing the continuing need for justice and the rule of law as the foundation to international security, and cognizant of the legacy of all those who preceded us at Nuremberg and elsewhere:
Recognize the tenth anniversary of the Robert H. Jackson Center and its important mandate to preserve, promote, and advance the legacy of Justice Robert Jackson through education, exhibits, and events, which emphasize the current relevance of Jackson’s ideas on individual freedom and justice;
Honor the life of our colleague and friend Whitney R. Harris, a prosecutor of the International Military Tribunal at Nuremberg who passed away this year; commend his drive and force in ensuring that the spirit of Nuremberg continued; and note the awarding posthumously to Whitney Harris the first annual Joshua Heintz Humanitarian Award for distinguished service to mankind;
Applaud the efforts of the states parties to the Rome Statute, and other delegations in Kampala this year in their willingness to openly take stock in the progress of international criminal law in general and the concrete recommendations to ensure justice for victims of international crimes; and for reaching consensus on a definition of the crime of aggression and for their determination to press for appropriate mechanisms for its enforcement and prosecution;
Noting that after thirty years of impunity the first judgment has been rendered in respect of the crimes of the Khmer Rouge in Cambodia;
Reflecting upon the fifteenth anniversary of the genocide at Srebrenica and the continuing need for the accountability of those responsible;
Expressing concern at the continuing plight of civilians caught up in armed conflict and particularly for those crimes committed against women and children;
Now do call upon the international community to:
Keep the spirit of the Nuremberg Principles alive by:
Ensuring the enforcement of the laws of armed conflict and in particular those relating to the protection of civilians;
Calling upon parties in armed conflict to respect international law applicable to the rights and protection of women and girls;
Ensuring that gender crimes are investigated and prosecuted appropriately;
States refraining from the use or threat of armed force and settling their disputes by peaceful means and in accordance with the United Nations Charter and international law;
Supporting and adequately funding the tribunals and courts in their work to maintain the rule of law at both the international and domestic level;
Implementing their obligations under international law in the sharing of information, investigating, prosecuting or transferring to an appropriate judicial body those who violate international criminal law to ensure accountability of all persons, including sitting heads of state;
Considering the adoption of a Convention on the Suppression and Punishment of Crimes Against Humanity; ...

Responsibility for Srebrenica

On Wednesday, a Dutch court rejected a claim for compensation by a group of Bosnian Muslims against the Dutch government for their peacekeepers' role in the massacre at Srebrenica. In early 1993, United Nations peacekeepers, with the authorization of the UN Security Council, set up a "safe haven" for Muslim refugees in Srebrenica to protect them from attacks by the Bosnian Serb Army. The town has come to symbolize failed humanitarian intervention; after 350 Dutch peacekeepers fled for their lives in July 1995, the Serbs killed an estimated 7,000 Muslim men and boys in four days.
So what does law have to say about this tragic event, and, more importantly, what role should courts play in addressing intervenors who fail to prevent grave crimes? Leaving aside the leaders of the Bosnian Serb Army, many of whom have been charged with crimes before the International Criminal Tribunal for the Former Yugoslavia and some of whom face civil liability claims in national courts, can courts of law be used to determine who was responsible for the failure to protect these refugees? Can and should courts play a part in ensuring that such failures are not repeated in the future?
So far, the Dutch courts seem to think that the answer to these questions is a resounding "No!" Faced with a class action lawsuit filed by the "Mothers of Srebrenica" against the United Nations for their failure to prevent the massacre, a Dutch court found earlier this year that it had no jurisdiction because the UN is immune from suit. Closing the loop, a Dutch court found this week that the Dutch government also could not be held responsible for the massacre because its troops were operating in Bosnia under a UN mandate.
One can see the theoretical argument behind this approach, akin to Good Samaritan laws: UN peacekeepers are simply trying to minimize the impacts of the actions of some very very bad actors, and shouldn't be held responsible for botched interventions. Moreover, in times of war, military leaders must make difficult decisions under severe time pressure, and their ability to act decisively may be compromised if they feel a lawyer breathing down their neck. But the question remains -- would the Bosnian Muslims have been better off without this UN-created safe haven that went so very wrong? Should the responsible actors at the UN, from the Security Council to the UN Commander in Bosnia, be held liable? If so, should the law aim to make the victims whole or to prevent these actors from making similar mistakes in the future (or both)?
Thus far, international legal accountability for grave atrocities has been marked by a focus on the perpetrators of crimes rather than the failures of those who intervene, and perhaps that's right -- perhaps courts of law shouldn't play a role in incentivizing humanitarian action. But if the massacre at Srebrenica can teach us anything, it's that we need something more than the current loop of immunity to ensure that future humanitarian missions do more good than harm.
Cross-posted on Concurring Opinions.

Defense counsel on "show trial" claims

First, my thanks to the IntLawGrrls for inviting me to be a guest blogger. I am glad to be a part of the blog’s ongoing discussion of timely and relevant international law topics.
As this blog and media around the world have reported, the former Bosnian Serb leader accused of genocide and crimes against humanity, Radovan Karadžić, has just been handed over to the International Tribunal for the former Yugoslavia for prosecution. He has already declared that he would like to represent himself. In doing so, he may intend to follow in the footsteps of Slobodan Milosevic and Vojislav Seselj, both of whom represented themselves and tried to turn the ICTY proceedings into a show for audiences back home. Karadžić is reportedly still considered a hero by some Serbs, with poems in his honor being recited at nationalist gatherings at Belgrade pubs. The prosecution at the ICTY is understandably concerned that, by representing himself in The Hague, Karadžić will do his best to politicize the proceedings and score points with his nationalist supporters.
Karadžić’s plan to represent himself, and the possibility that he will attempt to use the trial as a platform for political statements, feeds into a popular image of international criminal trials turned into a show by conniving defendants and their attorneys. In fact, the Milosevic and Seselj trials do not accurately represent the vast majority of international criminal trials. In most such trials, the defense does not attempt to politicize the proceedings. (credit for photo of ICTY session) Instead, they approach the process in much the same way as do defendants and their counsel in most ordinary domestic proceedings — refraining from political statements, and instead simply putting forward their best legal and factual defenses to the offenses charged. This is one of the main findings of my article on Defense Perspectives in Law and Politics in International Criminal Trials, 48 Va. J. Intl’l. L. 529 (2008).
My article addresses a larger, fundamental question about the purposes of international criminal trials:

Do international criminal trials serve primarily legal purposes, similar to the objectives of domestic trials, or do they serve primarily political purposes, such as helping communities heal and compiling an accurate record of the past?

The article examines this question through the perspectives of an overlooked, but important, participant in these trials—the defense attorney. Through personal interviews, scholarly articles, and case law, I analyze the attorneys' motivations, strategies, and tactics in representing defendants at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In particular, I ask whether defense attorneys believe that international criminal trials serve primarily adjudicative or primarily political purposes.
The survey finds that defense attorneys believe that these trials are much farther from being constructed primarily to satisfy political purposes, and much nearer to being truly adjudicative proceedings whose crucial function is to separate the guilty from the innocent. Defense attorneys believe that a good number of their clients are innocent and that acquittals are possible. Their perceptions, I argue, are not merely inevitable products of the role they play, but are supported by an increasing number of acquittals, dismissals, and vigorous debates about liability doctrines and rules of procedure. Finally, and contrary to some perceptions, most defense attorneys do not view political statements or attacks as appropriate tactics in international criminal trials and instead focus on factual and legal challenges to the prosecution's case.
Even as international trials retain their unique political importance, the attitudes of those actually engaged in them reflect their character as primarily adjudicative proceedings. Importantly, as key players in the trials, defense attorneys not only reflect, but also influence the proceedings, shifting them toward the adjudicative model.

News flash: Karadžić arrested

After more than a decade on the run, Radovan Karadžić has been arrested in Serbia.

Karadžić (below), the former President of Republika Srpska, the breakaway Bosnian Serb Republic, was seized Monday night in Serbia, according to Serbian President Boris Tadić, "'in an action by the Serbian security services.'" Tadić added that the longtime fugitive then was brought into a Serbian courtroom, the BBC reported:

'Karadzic was brought to the investigative judge of the War Crimes Court in Belgrade, in accordance with the law on cooperation with the International Criminal Tribunal for the former Yugoslavia.'

As posted, Richard Goldstone, then the ICTY's Chief Prosecutor, indicted Karadžić and Bosnian Serb General Ratko Mladić in 1995 on charges related to their supervisory role in atrocities committed during the Balkans War. The amended indictment, issued in 2000 and including a charge of genocide at Srebrenica, is here.

In a statement issued today, the current Chief Prosecutor, Serge Brammertz, said:

This is a very important day for the victims who have waited for this arrest for over a decade. It is also an important day for international justice because it clearly demonstrates that nobody is beyond the reach of the law and that sooner or later all fugitives will be brought to justice.

Even as Karadžić now awaits likely transfer to the ICTY, Mladić remains at large.

On July 11, ...

... 1960, To Kill a Mockingbird 1st was published. Harper Lee's novel about the courage of Southern schoolgirl Scout, her father, attorney Atticus Finch, and his client, Tom Robinson. She was inspired in part by Scottsboro, the case that, as it moved back and forth between state judges and the Justices of the U.S. Supreme Court, became an international cause célèbre. Mockingbird itself has an international readership: it's known in Spanish as Matar a un ruiseñor, in Portuguese as O sol é para todos, in German as Wer die Nachtigall stört, and in French as Ne tirez pas sur l'oiseau moqueur. A French website gushes: "The truth is that, while situating her story in Alabama at a precise period of time, Harper Lee wrote a universal novel about childhood confronting prejudices, lying, bigotry, and evil."
... 1995, in the Bosnian town that the United Nations had declared a safe haven --Srebrenica -- Bosnian Serb troops overcame Dutch peacekeepers. The troops subsequently separated by gender the Bosnian Muslims who had sought refuge there, then killed at least 7,000 boys and men. Eventually the International Criminal Tribunal for the former Yugoslavia would find some commanders guilty of genocide in this worst massacre to befall Europe since World War II; however, Gen. Ratko Mladić to this day remains a fugitive from ICTY justice. As we've posted, moreover, this year the International Court of Justice declined to find Serbia responsible for the genocide.
... 2007 (today), the United Nations marks World Population Day. This year's theme is "Men at Work," helping with parenting and household tasks too often relegated wholly to women -- as depicted in this poster, also available with subtitles in English, French, Spanish, or Arabic.