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The ingenuity of barbarians
by Michael Ignatieff
In view of the rapidly changing nature of conflict during the last decade, is humanitarian law still relevant? Various consultations conducted all over the world - "Voices of War" - shed some light, Michael Ignatieff gives his analysis of the role in the recent conflict in the Balkans on the Geneva Conventions.
International humanitarian law is very ingenious, but so is barbarism. Indeed the history of the Geneva Conventions in the 20th century is the story of a battle between the determination of Red Cross and Red Crescent workers and the ingenuity of barbarians. The recent conflict in Kosovo offers instructive examples of this. In the early days of April, when refugees were arriving in their hundreds of thousands at the Albanian and Macedonian borders, many of them reported that their final indignity at the hands of Serbian paramilitary and police forces was to be stripped of their identity cards, passports, driver's licences and all documents relating to the ownership of property in Kosovo.

It is ingenious of barbarians to realize that it was not enough to deprive the Kosovar Albanians of their property. It was also necessary to deprive them of their civic identity and drive them into exile without even the simplest proofs of their existence. In this way, robbery and dispossession would be legalized. Should Albanians from Kosovo ever return, the barbarians reasoned, they would have no means of seeking restitution.
Close observers of the Balkan conflict, like Roy Gutman, Pulitzer Prize-winning journalist and editor of Crimes of War: What the public should know (Norton, 1999), immediately noticed that while this is not a new crime,the Nazis stripped Jews of their citizenship, and is referred to in article 15 of the Universal Declaration of Human Rights, it is nowhere mentioned in the Geneva Conventions. Gutman coined a term for this piece of ingenuity: de-nationalization.

Certainly, many of the crimes of war are as old as war itself, but some of them are new. Barbarism is inventive, and de-nationalization is one of its latest inventions. This suggests that the work of the lawyers is never done. Sooner, or later, the Geneva Conventions will have to be rewritten to include this offence.

Where the Geneva Conventions do not require rewriting, they require constant interpretation. Lawyers hope that such conventions will end the arguments over what does and does not constitute a war crime. Sometimes, however, the conventions do not end the arguments. The Kosovo war shows that there remains substantive disagreement over what constitutes a war crime.
Is it a crime of war to strike the electricity grids used to provide power to major urban centres? In an information age, where air defence systems, troop movements, and command and control are dependent on computers, no target is more important than electricity. Yet, electricity is the power for hospitals, incubators, as well as water pumping stations. It is a classic dual-use target, with high military value, yet equally strong civilian use.

In late May, after much internal debate and discussion on this issue, NATO did target the electric grids delivering power throughout Serbia. The fact that the grids were targeted late in the war suggests that NATO's lawyers had concerns about the legal implications of such a strike and the fact that the war-planes struck transmission yards rather than the generator plants suggests that they sought to avoid crippling the capacity of their enemy to generate power altogether. Still, by the end of the war, NATO military planners took satisfaction from the fact that they were able to turn Serbian power on and off at their discretion. There is little doubt that this substantially impeded the capacity of the Yugoslav forces to maintain coherent command and control. Equally, there is little doubt that it plunged cities into darkness, shut down schools, curtailed hospital operations and caused hardship to the civilian population.
The Geneva Conventions explicitly forbid indiscriminate aerial bombardment of civilians, as well as attacks on water supplies and other elements or infrastructure essential to a civilian population's survival. The authorities in the Federal Republic of Yugoslavia (FRY) claim that NATO attacks violated the Geneva Conventions and were designed to break the spirit of the civilian population and its willingness to support the regime. NATO authorities insist that they violated neither the spirit nor the letter of the conventions.

There are similar disputes about the targeting of television transmitters and broadcasting studios. NATO lawyers argued that these were dual-use facilities, providing both civilian and military information relays. But they also went on to claim attacks were justified because the stations were producing propaganda which sustained the war effort and morale of the population. This defence takes the curious step of making the legitimacy of targeting depend on the content of a broadcasters. output, not to mention the fact that the bombing of television studios also strikes journalists, who have explicit protection under the conventions.

Who is to adjudicate such disputes? The International Tribunal for the former Yugoslavia at The Hague claims jurisdiction both over the conduct of the air war and the conduct of Yugoslav forces in Kosovo. Yet neither side fully accepts their jurisdiction. US military lawyers, for example, concede that the Security Council resolution establishing the tribunal gives it jurisdiction of all combatants in the former Yugoslavia, regardless of nationality, and thus includes US service personnel. But in practice, they say, any infringement of the laws of war by US personnel would be adjudicated in US military tribunals, under the statutes of the American uniform code of military justice. As for the FRY authorities, they absolutely refuse to accept the tribunal's jurisdiction and have consistently refused to hand over persons under indictment from President Slobodan Milosevic on down. So we have the curious spectacle of a European power, which has ratified the Geneva Conventions and yet denies the jurisdiction of the court appointed to try offences against the rule of law.

As for the NATO powers, their acceptance of the jurisdiction of the court is a moot point until the tribunal proceeds to an investigation or an indictment. Chief Prosecutor Louise Arbour is adamant that the tribunal does have jurisdiction. Her mandate applies, she says, to the whole territory of the former Yugoslavia, to all military operations, regardless of nationality. Needless to say, she will not disclose whether the tribunal is investigating possible NATO war crimes, but officials at the tribunal are fearful that should she proceed to an investigation, NATO would either deny jurisdiction or ignore subpoenas. In which case . unlikely of course . a confrontation would ensue between the tribunal and the Security Council Permanent Five who set the tribunal in motion in 1993.
Modern war from the air is waged with the Geneva Conventions in one hand. Lawyers from the US Judge Advocates. General department reviewed every single target, attempting to apply both the letter of the conventions and a reasonable person. s standard to questions about the proportionality, legitimacy and collateral damage issues raised by each target. How much this reflects a concern for the CNN effect . the potentially catastrophic impact of a collateral damage incident . and how much a genuine moral willingness to adhere to the spirit and letter of the conventions is impossible to say. The fact that a belligerent on the opposing side can get television cameras to the site of any alleged atrocity by the other side concentrates the minds of any air-man towards the necessity of keeping on the right side of the conventions.

Modern air war may observe the letter of the law, but it creates enormous problems for the guardians of the law, the ICRC. The organization prides itself on trying to protect civilians even when the bombs are falling, and it tried to stay in Pristina when the air campaign began. But within five days, the situation in the city had become impossible: paramilitaries were roaming the streets; the civilian population was being evicted; and at night, air-strikes were pummelling the airport, the Pristina Corps barracks and headquarters, making it impossible to guarantee delegates safety. The delegation was withdrawn from 29 March until 24 May. In order protect its own people, the Red Cross was absent during the worst days of the Kosovar Albanian nightmare, just as it was forced to withdraw during the most violent period of the Bosnian war in May and June of 1992. The head of the ICRC. s Balkan operations, Pierre Kraehenbuehl, admits that the Red Cross faced dramatic dilemmas and limits in protecting civilians and that, being forced to withdraw, it lost its leverage on the situation. Now it must re-establish leverage, in a lawless situation. We are not post-Dayton here,. he explains. There is only a cease-fire and a withdrawal, but no definition of juris- dictional authority in the province. The ICRC has to work in a legal and administrative void which it may take months to fill.

But the Red Cross and Red Crescent are used to working in uncertain and dangerous places. That is their mandate, and that is where the defence of the conventions is most important. The Kosovo conflict shows that the conventions do work, at least in the sense that they guided and limited the conduct of the air war. Where they had least effect, alas, was on the ground in Kosovo, where ethnic cleansers enjoyed a free rein, and where the Red Cross was unable to intervene.

Michael Ignatieff
Michael Ignatieff is a Canadian writer and historian, author of The Warrior's Honour: Ethnic War and the Modern Conscience (1998).
It is easy to tell the history of the Geneva Conventions as a story of failure: the constant infringement of its conditions by the new warriors of failed states. Yet failure is not the whole story and is not always purely negative. It could be said that the Geneva Conventions and the ICRC itself will survive on a dynamic of failure. The conventions were the work of a generation which returned from the war and felt shame and indignation at what it had witnessed in the battlefields and concentration camps of Europe. The extermination of populations, the carpet bombing of cities and the killing of prisoners had shown what total war can do to the moral compass of individuals and the behaviour of states. But what the experience of 1949 shows the generation of 1999 is that failure is not negative. It is positive. In other words, the failures of the conventions are what force lawyers and activists to rethink, to recommit themselves, to become more agile in responding to the ceaseless ingenuity of barbarism.

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