A Journalist's Guide to the Laws of War
The MARS Centre, 101 College Street
Toronto
David Pratt
December 1, 2006
(check against delivery)
Good Morning, Ladies and Gentlemen
I’m delighted to be here this morning to speak to you about international humanitarian law or IHL, and the important roles and responsibilities of journalists in conflict zones. I am particularly pleased to be here in the company of real experts on this subject like Roy Gutman and the array of very fine panelists who will share their thoughts with you today.
I’m here today because I think this subject is of critical importance. Regrettably, there is no shortage of conflicts in the world for journalists to cover today. And it is a truism to talk about today’s conflicts as increasingly complicated even though many past conflicts had their share of complexities. But if the last fifteen years have demonstrated anything, it is that for journalists working in war zones, knowledge of IHL will not only make you a better reporter; in certain circumstances, it may actually saves lives – yours included.
Perhaps the best place to start is to describe what IHL is. It begins with an idea that is simple but compelling: the idea that some things are not permitted even in war, that there have to be limits to the violence that people inflict on one another so as to establish a firewall between civilization and absolute barbarism. Using this idea as a starting point, international humanitarian law sets forth a number of rules aimed at protecting certain categories of people. Put simply, it protects those who are not or are no longer taking part in hostilities and it restricts the means and methods of warfare.
IHL is rooted in practicality. For instance, it does not call into question the lawfulness of war. Rather it aims first and foremost to limit the superfluous suffering that war can cause. Although war is officially outlawed (subject to some important exceptions contained in the UN Charter), it is still, as we know, very much a part of the human experience.
Where and how did IHL get its start? That is hard to pinpoint with any amount of precision. Primitive peoples, kings and philosophers through the ages from Hammurabi to Plato sought to put limits on warfare. You can find references to how war should be conducted in the Mahabharata, a Sanskrit text important to Hinduism, the Koran and of course, the Bible. The Viqayet - a text written towards the end of the 13th century at the height of the period in which the Arabs ruled Spain contains a code for conduct of warfare.
There were two separate and independent areas of international law that developed over the centuries and which address conflict generally. The first area known as ius ad bellum from the Latin speaks to the reasons why a state may legitimately engage in war. Just war theory, as it came to be known, originated largely with medieval Catholic theologians but found perhaps its highest expression with the Dutch philosopher of the 17th century Hugo Grotius.
The second area concerns how states fight. The Latin term is ius in bellum and deals more directly with the laws of armed conflict or international humanitarian law although there is some overlap between the two. Notwithstanding the few examples I cited above, over the centuries, the laws of armed conflict developed more through custom than by any universally accepted written formal codification. It was then customary rules which came to apply to both armies in the field and naval conflict.
Two examples will serve to illustrate the point. The use of a white flag to signal surrender or the desire for a truce goes back to the Eastern Han dynasty (25-220 A.D). In the Roman Empire, the historian Cornelius Tacitus mentions a white flag of surrender in 109 A.D. Before that time, Roman armies would surrender by placing their shields above their heads.
On the high seas in the age of sail, the act of surrender was known as “striking the colours.” It involved lowering the national flag or battle ensign as a sign of submission. Under customary law, a warship had to fly its ensign before commencing a hostile act. There was no other purpose to striking the colours during battle other than surrender. Nailing the colors to the mast was a traditional sign of defiance, indicating that the colors will never be struck and the ship will never surrender. Before going into battle against U.S. Continental Navy ship Bonhomme Richard on 23 September 1779, Capt. Richard Pearson, RN, of HMS Serapis, nailed the British ensign to the ensign staff. In the early part of the battle, Bonhomme Richard's ensign was shot away. When Captain Pearson of Serapis saw that the colors on Bonhomme Richard were down, he yelled over to Captain John Paul Jones if he had “struck”. Jones rather famous reply was "I have not yet begun to fight." Unfortunately for Pearson, the battle did not go his way. He was forced to tear down the colours he had previously nailed to the mast when he surrendered.
So how did humankind actually begin, in a more systematic way, after over 40 centuries of lawmaking to codify and internationalize the laws of war? The answer in part can be found in the nature of conflict in the middle of the 19th century. The beginning of the industrialization of warfare meant that unless some restraints were placed on conduct of hostilities, war, already unfathomably brutal, would degenerate even further into limitless slaughter and human suffering. The great champion of laying down the laws of armed conflict was an unlikely figure – neither a lawyer nor a soldier. His name was Henry Dunant and he was a Swiss businessman. Dunant, however, remains in my estimation one of the most unknown and yet probably one of the greatest humanitarians in human history. Through a series of unexpected events which I will explain shortly, he brought to life not one, but two incredibly powerful ideas.
Still, in fairness, Dunant was not the only person trying to puts rules on warfare in the middle of the 19th century. In 1863, during the American Civil War, Francis Lieber, penned what became known as the Lieber Code which applied to Union soldiers during the American Civil War. Still, Dunant remains the person who – more than any other individual who came before or after him - was able to both codify and internationalize the laws of armed conflict.
Dunant was travelling in Northern Italy in late June 1859 and found himself in the position of being a battlefield tourist at a place called Solferino. It was here that the Allied armies of Victor-Emmanuel of Italy and the Emperor Napoleon III clashed with an Austrian Army under Emperor Franz Joseph on June 24, 1859. Let me try to set the stage somewhat. The Austrians had been marching all night. The French moved forward at 3:00 in the morning and barely had time for coffee. The two armies of 300,000 men facing each other along a battle line approximately 15 miles long. The struggle began at 6 am in the morning and continued for fifteen hot, dusty and very bloody hours. Dunant, who was not a journalist, but whose description of the battle is graphic and detailed gives us as good an account as any that exist of the abject horrors and chaos of a 19th century battlefield. Allow me to quote at length from Dunant’s account and to the squeamish go my apologies:
“Here is a hand to hand struggle in all its horror and frightfulness; Austrians and Allies trampling each other under foot, killing one another on piles of bleeding corpses, felling their enemies with their rifle butts, crushing skulls, ripping bellies open with sabre and bayonet. No quarter is given; it is a sheer butchery; a struggle between savage beasts, maddened with blood and fury.
Here come the artillery, following the cavalry, and going at full gallop. The guns crash over the dead and wounded, strewn pell-mell on the ground. Brains spurt under the wheels, limbs are broken and torn, bodies mutilated past recognition – the soil is literally puddled with blood, and the plain littered with human remains.”
Dunant accepted the anthropological inevitability of war. He was not a pacifist. Still, he was clearly horrified and deeply disturbed by both the battle and its aftermath. In the hours and days following the fighting, he chronicled pitiful accounts of individual suffering.
Dunant was not just an observer. He was determined to do whatever he could to be of assistance. The battle of Solferino had left 40,000 dead and wounded and soon after the fighting Dunant recruited those around him to assist the wounded and dying. He summoned a couple of English tourists, a French journalist, a German surgeon, a Swiss merchant and local townspeople to provide food, water and medical attention to those in need. Three years later Dunant put pen to paper and his recollections of the battle became “A Memory of Solferino.”
His book raised quite a sensation. Shortly after it was published in 1862, people across Europe were talking about his proposal for a reserve of trained volunteers who would be skilled in attending and caring for the wounded on the battlefield. His thoughtful proposal also called for these volunteer auxiliaries to be declared neutral and organized around what he described as “national relief societies.”
On February 7, 1863, Geneva Society for Public Welfare appointed a committee of five, including Dunant, which was called the “Permanent International Committee” to examine the possibility of putting this plan into action. A conference was held in October, 1863 at which thirty-nine delegates from sixteen nations attended. They approved some sweeping resolutions and laid the groundwork for a gathering of plenipotentiaries. Interestingly, it was at this meeting that someone (we don’t know who since the historic record is incomplete) came up with the idea of using an emblem which was the inverse of the Swiss flag – a red cross on a white armband to provide identification and protection on the battlefield for those caring for the wounded. On August 22, 1864, in Geneva, twelve nations signed an international treaty, commonly agreeing to guarantee neutrality to those rendering assistance to the wounded and to formally adopt the red cross emblem.
In September 1864, France ratified the treaty. Others were quick to follow. By 1870 all of the major European powers and most of the smaller one had ratified what became known as the First Geneva Convention. In 1867, the Netherlands became the first country to call its national body the “Red Cross Society” and by 1875, Dunant’s “Permanent International Committee” became “The International Committee of the Red Cross.” The two ideas I spoke of earlier were Dunant’s gift to humanity: the first was International Red Cross Movement, the second, the Geneva Conventions. Solferino had clearly had an impact.
The Geneva Convention of 1864 laid the foundation for contemporary IHL. First, it provided standing written rules of universal scope to protect the victims of conflicts. Second, as an international instrument, it was open to all states. Third, it created an obligation to extend care without discrimination to wounded and sick military personnel. And fourth, it called for the identification and protection of medical personnel, transports and equipment through the emblem of the Red Cross. Those relatively simple and straightforward rules constituted significant progress in how states conducted war.
In the 145 years since the first Geneva Convention, the body of international humanitarian law has expanded considerably. There have been twenty or so major treaties dealing with everything from the use of dum-dum or hollow point bullets at the Hague Convention of 1899 through to the prohibition on the use in war of asphyxiating, poisonous or other gases and of bacteriological methods of warfare at the Geneva Convention of 1925.
IHL took a major step forward following the Second World War with the Genocide Convention of 1948 and the four Geneva Conventions of 1949 which addressed the amelioration of the condition of the wounded and sick of armies in the field; and the wounded, sick and shipwrecked members of armed forces at sea; the treatment of prisoners of war and the protection of civilian persons in time of war. These rules were further bolstered in 1977 by two protocols additional to the Geneva Conventions of 1949 which dealt with the protection of victims of international and non-international armed conflict. These four conventions and two protocols contain almost 600 articles and are the main instruments of IHL.
As many of you know, there have been further advances in IHL in the last decade or so in terms of prohibitions on the development and use of chemical weapons, the use of blinding lasers, the anti-personnel landmines treaty, the International Criminal Court (also known as the Rome Statute) and the optional protocol on the rights of the child and the involvement of children in armed conflict. More recently, we had the ICRC sponsored Customary Law study.
But there is a cruel paradox at work here. Just as international human rights law and international humanitarian law have probably never been as developed, the number of innocent victims of warfare keeps climbing. We saw the trends emerge clearly over the twentieth century. In the First World War, the ratio of civilian to military deaths was 1:10. In the Second World War, it was 1:1. And within the last fifteen years or so, it has reversed itself and is now 10 civilian deaths for each military death.
Today, we are witnessing major changes in the nature of conflicts. The vast majority of conflicts are within states not between states. Often times, these internal conflicts are a series of conflicts involving a diversity of actors with multiples factions. These factions are motivated either by political or criminal motives and sometimes both. So we are dealing with situations of mixed violence with political and criminal motives. These conflicts take place between tribes, clans and communities. They are far removed from the traditional "linear" conflicts of the past (i.e. breakdown of diplomacy; fighting; clear end of hostilities; followed by shift of political power to winning side). Some have posed the question as to whether IHL is still relevant in the face of these new conflicts? The answer is a resounding yes. IHL today is still an important benchmark or baseline that regulates the behaviour of actors during conflicts and affords protection to victims.
When it comes to state and non-state actors involved in conflict, IHL is not a “Nice to Do.” It is a “Must Do.” It is a major component of the Rule of Law as it exists internationally and therefore indispensable to the preservation of international peace and security.
If you are reporting conflict, it is extremely important to know what is permissible and what is not permissible. It is absolutely vital to recognize what constitutes legitimate military action and what is a war crime. If any of you are unconvinced as to the importance of IHL, let me put it another way. As a sports reporter, you wouldn’t dream of covering a hockey or basketball game, unless you felt you had a good grasp of the rules of the game. I don’t need to tell you that the stakes are a lot higher when people are carrying automatic weapons and RPG’s instead of hockey sticks. But the public deserves a least the same level of journalistic professionalism and knowledge from its war correspondents as it gets from its sports reporters. War reporters in my view have a profound moral obligation to know the rules.
An example of careless and irresponsible journalism in my view is an opinion piece on IHL written by Peter Worthington called “U.S. should withdraw from Geneva Conventions.” Mr. Worthington, in my view, does not know the rules of the game, nor the context in which it is played. He calls for the United States and other western nations to abandon the Geneva Conventions. His call is based on two arguments. One is that no country that the US or Canada would go to war with would subscribe to the Geneva Conventions so why should we. The second is that we do not require rules or legal norms regulating conduct in conflict settings because “it’s not our policy to torture or mistreat”.
First let’s look at the argument that no country that we might engage in hostilities with would subscribe to the Geneva Conventions so there is no need for us to do so. Worthington specifically mentions Iran, Syria and North Korea. Besides the fact that all three of these countries are State parties to the four Geneva Conventions, and Syria and North Korea having also ratified Additional Protocol One, there are two additional errors in this argument that must be addressed.
First, it is a well-established and codified rule of international law that if a treaty is applicable to an armed conflict, and one side breaches it, the other side is not entitled to breach the terms of the treaty out of reprisal. This is covered under the Vienna Convention on Treaties. So, we cannot, as a matter of law, simply say that because the other side broke the law, we can break the law too.
Secondly, this argument speaks to one of the most prominent issues that we face today, which is that conflicts are fought internally by factions with fluctuating motivations. The so-called ‘War on Terror’ is a case in point. Worthington’s analysis seems to suggest that because the Geneva Conventions are being violated by these new actors then the Geneva Conventions are no longer law and/or no longer contribute to the Rule of Law.
Let me be clear when I say that in today’s humanitarian context, there is no legal vacuum. There is an extensive body of law and legal norms that contribute to the Rule of Law, which in turn contributes to the maintenance of international peace and security.
The Geneva Conventions constitute the foundation of IHL in force today. They are the only treaties in modern history to have been universally ratified by 194 state parties – every state on the planet. It is true that the Geneva Conventions themselves apply only to international armed conflicts and that treaty law specifically aimed at non-international armed conflicts contains skeletal protections. However, one must not ignore the importance of customary international law. Rules of customary international law bind all States, and where relevant, all parties to the conflict, without need for formal adherence.
Indeed, Dr. Jakob Kellenberger, President of the International Committee of the Red Cross, has stated that in the non-international armed conflicts “State practice goes beyond what those same States have accepted at diplomatic conferences, since most of them agree that the essence of customary rules on the conduct of hostilities applies to all armed conflicts, international or non-international.”
As mentioned above, the International Committee of the Red Cross published an extensive study on the rules of customary international humanitarian law, which represents a ‘snap shot’ of the present state of this ‘general’ law. I would encourage all of you to become familiar with this text because, as Dr. Abdul G. Koroma, a Judge at the International Court of Justice, has said: “without the existence of customary law, non-parties would be free to act as they wished.”
But we do have customary international law and it is a binding body of law used by international and domestic courts alike. The Nuremburg Trials, the International Tribunal for the former Yugoslavia, the International Tribunal for Rwanda, the Special Court in Sierra Leone, the International Criminal Court –all of these bodies look to the rules of IHL, including Customary International Law, for the norms on which to adjudicate war crimes and crimes against humanity. Even the U.S. Supreme Court has upheld CIL’s relevance in the recent Hamden v Rumsfeld decision. In it, the Court decided that the rules of IHL apply to the detainees at Guantanamo Bay, implicitly qualifying the conflict between the US and Al-Quaeda as a non-international armed conflict. It is significant to note that, in coming to this decision, the Court quoted, as an authority, the ICRC study on customary international humanitarian law.
Worthington’s second argument for abandoning the Geneva Conventions is that we do not require rules or legal norms regulating conduct in conflict settings because we do not “go in for torture or endorse it”. In fact, Worthington goes as far as to say that the United States (and most Western countries) don’t require the Geneva Conventions to assure basic humane treatment of most prisoners.” This, while in the same breath stating that it is the rules of IHL— particularly the insistence on the humane treatment of prisoners— that is holding America back from winning the war. It seems to me that there is a bit of a contradiction there.
I thought The Toronto Sun was a law and order paper. I’m sure it would not be the paper’s editorial view that Canada’s Criminal Code be tossed aside. So why in the name of heaven would one of their writers suggest we get rid of what amounts to the Criminal Code of armed conflict – one of the primary bases for the rule of law in international affairs.
I hope that I have it clear to you that in conflicts, there is an extensive body of law, and that without a basic understanding of this law and the legal norms it creates, a journalist can easily misreport events. Lindsey Hilsum, the British reporter who covered Rwanda once said: “Had I realized right at the start that I wasn’t reporting anarchy but genocide, I would have reported it differently. In that first terrible week, I could have explained that governments had an obligation to stop it.”
Journalists, by the way, should also be aware of the special provisions within the Geneva Conventions which protect their profession in armed conflict. Knowing IHL quite simply is what it is all about. An ICRC study on the “roots on behaviour in war” that came out in 2004 found that the most effective manner of changing the behaviour of combatants is through consistent reference to IHL as a force of law rather then a force of morality. It found: “We need to treat IHL as a legal and political matter rather than as a moral one, and to focus communication activities more on the norms than on their underlying values because the idea that the bearer of weapons is morally autonomous is inappropriate.”
The role of journalists in disseminating these legal norms cannot be underplayed; if journalists report within and from conflict zones with a solid understanding of IHL they will further disseminate and perpetuate the legal norms of IHL (i.e. understanding of the Rule of Law) and that will make a difference in the protection of civilians, including the journalists themselves. Dr. Koroma said it best when he stated that: “Knowledge of the relevant customary law on the part of the various actors involved in its application, dissemination and enforcement, ...is a vital first step towards enhancing the effectiveness of international humanitarian law.”
So as journalists, it is your job – not an easy one by any stretch – to report accurately, to understand the rules of the game and to be able to draw attention to violations of IHL when they occur. To do this you have to be armed with the knowledge of what IHL is and who it covers. But you should also know this: the Red Cross, as the custodians of the Geneva Conventions, is there to help you. And you should use us as a resource. And finally, you should never forget the story of Henry Dunant. His life was a testimony to the power of an idea in mobilizing humanity and he showed quite clearly that the words of one person can make an enormous difference. So if you are as horrified and as deeply disturbed by the suffering of civilians in today’s conflicts as Henry Dunant was at the Battle of Solferino, I implore you to make the right choice and to report on IHL matters knowledgeably and competently.
Thank you.
