Introductory Remarks: Panel Discussion/Remarks

Abstract

THESE are difficult days for international humanitarian law— indeed, for international law in its broader sense. The principal reason for this state of affairs lies not only in the technicalities or the fine points of international law. We have also witnessed a decline of human and humanitarian values. This decline of values has, in turn, led to an erosion of humanitarian principles. International humanitarian law works relatively well when the contesting parties share its basic precepts and goals. It does not work well when there is a challenge to those shared values by one or more of the parties. This was true even before the emergence of the relatively recent phenomenon of terrorism. During World War II, for example, Nazi Germany refused to apply international humanitarian law on the eastern front. International humanitarian law has been based on a fundamental neutrality—color blindness if you will—of rules governing the conduct of war. The legality of recourse to war, the jus ad bellum , had no consequences for how wars were fought, for the jus in bello. The elementary chivalry that characterizes these rules includes principles prohibiting attacks on civilians and establishing the rule of proportionality to govern the scope of permissible damage to civilians. War and aggression were “reserved” to states, as was the right of self-defense. These fundamental rules are based on the assumption of symmetry . In particular, it was assumed that conflicts would be fought between sovereign states. As a result, POW status and privileges and due process for trials could almost be taken for SOCIAL RESEARCH, Vol. 69, No. 4 (Winter 2002) Introductory Remarks BY THEODOR MERON granted. Indeed, even in civil wars, the model was a government against a rebel entity seeking power and legitimacy and thus willing to abide by at least the basic rules. In such situations various equivalents of the rules applicable to international wars would apply, in addition to the fundamental rule of humane treatment. Indeed, one might say that even in civil wars there was a certain symmetry, a certain reciprocity, between the parties, which fostered compliance. Most of these fundamentals are now called into question. Can international law perform well also in asymmetrical situations? When terrorists practice or even proclaim complete disregard of international rules, what is the incentive for anti-terrorist forces to abide by the law? The moral philosopher Michael Walzer has written that the very definition of “terrorism is the deliberate violation” of those norms: “For ordinary citizens are killed and no defense is offered . . . in terms of their individual activities. . . . They are simply killed to deliver a message of fear to others like themselves” (Walzer, 1977: 203). Traditional humanitarian law applies to wars, or armed conflicts . Terrorism, however, is also common in situations falling short of war. In these circumstances, we must confront particularly difficult questions: Will the reactions conform to humanitarian rules of war, and how strictly? Will battlefield rules be ignored, deconstructed, revised, bent? The same kinds of questions arise for the conduct of trials. We may repeat the question asked by Professor Adam Roberts (2002): Does the problem extend beyond the conduct of the adversaries to the very adequacy of the law? If there is a problem with the law’s fit, what can we do about the normative framework, short of undermining the existing law? It is worth noting that the definition of crimes against humanity in the International Criminal Court treaty applies, fortunately, also in peacetime. Outside this specific context (crimes against humanity), are national laws and procedures the principal normative framework in nonwar situations? How effective will inter1182 SOCIAL RESEARCH national human rights be in ensuring that national procedures conform to international standards? Is the new International Criminal Court likely to be effective in handling terror cases? Should trials of terrorists be entrusted to ad hoc international tribunals created by the Security Council under Chapter 7 of the UN charter? In terms of international law, several distinct but interrelated prongs or segments of relevance exist. The first is the question of resort to force and its justification, the jus ad bellum, the law of the UN charter. The second is the applicability of rules of combat, or rules of...