The Rules Have Not Changed Regarding Armed Conflict

COOPERATIVE NUGGET '97By David M. Crane

(Re-published from The Jurist, March 30, 2015) Shortly after three planes went into three buildings on September 11, 2001 the chief law enforcement officer of the US, Attorney General Albert Gonzalez declared that the Geneva conventions were quite out-dated.

This amazing and naïve statement followed a similar declaration by then-President George W. Bush that the “rules have changed” related to fighting terrorists. These statements set off a series of policy missteps that led to Guantanamo, Abu Ghraib, Bagram AFB, secret prisons in Eastern Europe and North Africa and the perceived loss of the moral high-ground by the US related to conflict in the 21st century.

No longer that “bright and shining city on the hill” the US continues to limp into the new century not as a leader regarding the international rule of law but only as a participant in a series of kaleidoscopic events that seem to challenge the very foundation of the rule of law, particularly the laws of armed conflict. At no time is the rule of law more needed than now in this apparent “age of extremes”. Do the rules really need to be changed?

A recent trial shows those rules do not need to be changed, just followed. Four Polish soldiers were found not to have committed war crimes in an incident in 2007 where civilians were killed. Poland had been part of the NATO led coalition in Afghanistan for 12 years. A military court found that they did not intentionally target civilians, a war crime if proven. The military judges did find them negligent in following orders, a dereliction of duty-type offense in the US military. The press seemed to take this as some type of failed judgement. I consider it an affirmation that the laws of armed conflict are alive, vibrant, and being used in the way contemplated by the drafters and followed for over 60 years by nations involved in conflict situations.

The laws of armed conflict state that no civilians can be intentionally targeted. The law recognizes that in the heat of combat there are collateral effects to the battle to include civilian deaths excusable in law. Additionally the laws of armed conflict require that all signatories to the Geneva Conventions, when faced with allegations of a war crime investigate, prosecute (under their domestic system of justice) or hand the alleged perpetrators over to a party to the conventions willing to prosecute for the war crime.

The Poles appear to have followed not only the spirit but the letter of the law. They investigated the civilian deaths and charged the four soldiers with war crimes under Polish domestic law. The outcome was decided in a fair and open trial. The fact that it was not proven that they intentionally targeted those civilians was up to the trier of fact in that domestic prosecution. Hence the outcome as reported.

This shows that the rules are working and they do not have to be changed. The NATO coalition followed the laws of armed conflict. The coalition does investigate and hand over perpetrators to member domestic systems for resolution. Though not perfect, the record does show that coalition forces do hold accountable members of their armed forces who violate the laws of armed conflict in trials and courts-martial …

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