INTERNATIONAL HUMANITARIAN LAW AFTER SEPTEMBER 11
Israeli actions against the Palestinians, US bombing in Afghanistan and the intervention of Russia's armed forces in Chechnya all have something in common: the fight against terrorism. They also share something else: a refusal to recognise the relevance of humanitarian law to this type of conflict.
SINCE SEPTEMBER 11, THE IDEOLOGICAL face-off which created the Cold War balance of power has rematerialised in the form of a kar' on terrorism and the `axis of evil: The same pattern applies and was set out by President George Bush, who solemnly declared that this was a global war and that each country, each region, had to choose sides. Either they were with the Americans or the terrorists. He warned that any country that continued to harbour or support terrorists would be considered a hostile regime. He also warned that there was no room for neutrality in this conflict. But is there still room for respect for law?
By applying the arguments of a just was; Bush dragged the world into political and judicial regression. The theoretical implications are still poorly understood, but the practical consequences are already serious. If every war the US fights in the name of the war on terrorism has suddenly become just, does that automatically imply the means used are always just?
The entire history of the codification of humanitarian law rests on the separation of jus ad bellum - justifying the use of force - from jus in bello - limiting the use of force. The international political and judicial consensus is now being threatened on both fronts simultaneously.
In 1945 the UN charter gave the organisation sole right to the use of military force, except in cases of legitimate self-defence. Since then some states have reclaimed this right. The fall of the Berlin Wall initiated a decade of uncertainty and innovation with regard to doctrine on the use of international military forces. Several UN Security Council resolutions aimed to shape an international public order which could be defended or imposed by international armed forces and sanctioned by international courts.
During the 1990s, the UN Security Council concluded that serious violations of humanitarian law and suffering on the part of civilian populations in Iraq, Somalia, the former Yugoslavia and Rwanda constituted threats to peace and international security. On this basis it authorised the use of international force for intervention on humanitarian grounds.
The military strategy chosen and entrusted to UN land forces was based on a doctrine of symbolic deterrence. The tragic failure of this was illustrated by the killing of US troops in Somalia, the massacre of Belgian peacekeepers and the Tutsi genocide in Rwanda, the capture of UN soldiers by the Serbian army in Bosnia and the slaughter of Bosnian civilians at Srebrenica.
To avert such failures in the future, the Security Council set up two international ad hoc criminal courts charged with trying those responsible for genocide, war crimes and crimes against humanity in the former Yugoslavia and Rwanda.
The 1999 military intervention in Kosovo marked a real turning point in the right to use force. NATO nations sidestepped UN authorisation by choosing a doctrine of intervention based on a new, very broad definition of legitimate self-defence, since it was not a NATO country that was attacked by the Serbian army. This choice set a precedent that has had consequences well beyond the Balkans. While NATO was intervening in Kosovo, Russia launched its second war in Chechnya, confident that there would be no interference by the west. The return to the principle of power blocs has come not from nuclear deterrence, but from bartering security. The US has reclaimed the right to wage war in the name of legitimate self-defence, national security and the way on terrorism. This marks the return of the just war' doctrine abolished in 1949 by the Geneva Conventions. …