“I know it is bad, but we must finish it.
It does not finish. There is no finish to a war.
War is not won by victory.”
Extracted from A Farewell to Arms by Ernest Hemingway
There is a famous Latin maxim Inter arma enim silent leges attributed to Cicero – known by some as the greatest orator who ever lived – which translates as “In times of war, the laws are silent”. In the 21st century, this maxim, which was purported to address the growing mob violence and thuggery of Cicero’s time, has taken on a different and a more complex dimension, extending conventional warfare in the air to the use of lethal drones (remotely operated flying missiles) as arbitrary killing machines.
The devastating damage caused by drones in war causes the greatest number of civilian fatalities along with destruction of buildings, reducing them to piles of rubble. This type of attack was seen in 2011 where an American drone is reported to have hovered above Pakistan’s Waziristan area one day in March 2011 and unleashed three missiles on a gathering of people, some of whom were armed. Most of the 40 or so killed were civilians. These drones were operated in most instances, far away from the actual zone of attack by trained personnel operating hand held consoles. A strike is called a bugsplat. .
In March 2011, the United Nations Security Council adopted Resolution 1973 which inter alia decided to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians. The Resolution also authorized Member States to take all necessary measures, to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi. This resulted in concerted air attacks by NATO forces on Libya.
The First Question
The first question is: “what redress do innocent victims of war have against egregious air attacks?”
From an international perspective, the operative law with regard to victims of war is international humanitarian law. This limb of law is also known as the law of war, the laws and customs of war or the law of armed conflict. Basically, international humanitarian law encompasses four limbs, the first being that persons who are not, or are no longer, taking part in hostilities must be respected, protected and treated humanely. They must be given appropriate care, without any discrimination. Secondly, captured combatants and other persons whose freedom has been restricted are required to be treated humanely. They should be protected against all acts of violence, in particular against torture and if they are brought to trial they have the right to enjoy the fundamental guarantees of a regular judicial procedure. Thirdly, the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. No superfluous injury or unnecessary suffering must be inflicted. Finally, in order to spare the civilian population, armed forces are required at all times to distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. Neither the civilian population as such nor individual civilians or civilian objects should be the target of military attacks.
Within these four precepts, international humanitarian law is entrenched as the legal corpus comprised of the Geneva Conventions and the Hague Conventions as well as subsequent treaties, case law, and customary international law. The Geneva Conventions consist of four treaties formulated in Geneva, which set the pace in Standards for international law as applicable to humanitarian concerns. The fourth Convention, which relates to the protection of civilians during times of war in the hands of an enemy and under any occupation by a foreign power, provides in Article 3 that even where there is not a conflict of international character the parties must as a minimum adhere to minimal protections that should be accorded to certain categories of persons. These persons are described as: non-combatants, who usually are civilians, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause. Article 3 also requires these persons to be in all circumstances treated humanely, with the following prohibitions: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b)taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Article 4 defines a person protected by the Geneva Conventions as one who, at a given moment and in any manner whatsoever, finds himself, in case of a conflict or occupation, in the hands of a Party to the conflict or occupying power of which he or she is not a national. However, it explicitly excludes nationals of a State which is not bound by the Convention and the citizens of a neutral state or an allied state if that state has normal diplomatic relations with in the State in whose hands they are.
What is : “War?”
The term “war” is no longer used in its traditional restrictive sense of a conflict involving international dimensions. In the modern sense, war is any prolonged state of violent, large-scale conflict involving two or more groups of people and is now considered to include non-international armed conflicts as referred to in Article 3 of the fourth 1949 Geneva Convention. Also, humanitarian law does not apply only to victims of wars between international actors. Professor Rainer Hoffman, in his report to the International Law Association’s seventy second conference observed that if present international law admits of an individual’s right against a State for injuries suffered during the course of a war in which that State is involved, it must necessarily follow that it is difficult to maintain that the same right might not prevail against international organizations and non-State actors. He further stated that if such Organizations and non-State actors are subjects of international law and engage in acts which could have been committed, under traditional international law, only by States and thus behave like or as States, then they should, in principle be held accountable in the same way as States.
The Second Question
The Second question addressed in this article is: Can the law, administered by the courts, play an active role in preventing or bringing the carnage caused by drones to a halt?
When the PAN AM disaster over Lockerbie in Scotland which was caused in 1989 was considered by the International Court of Justice, Vice President of the Court – Justice C.G. Weeramantry – delivered his famous judgment where he said inter alia: “A great judge once observed that the laws are not silent amidst the clash of arms. In our age we need also to assert that the laws are not powerless to prevent the clash of arms. The entire law of the United Nations has been built up around the notion of peace and the prevention of conflict. The Court, in an appropriate case, where possible conflict threatens rights that are being litigated before it, is not powerless to issue provisional measures conserving those rights by restraining an escalation of the dispute and the possible resort to force. That would be entirely within its mandate and in total conformity with the Purposes and Principles of the United Nations and international law. Particularly, when situations are tense, with danger signals flashing all around, it seems that this Court should make a positive response with such measures as are within its jurisdiction.
If the conservation of rights which are sub judice comes within the jurisdiction of the Court, as I have no doubt it does, an order restraining damage to those rights through conflict must also lie within that province. If international law is to grow and serve the cause of peace as it is meant to do, the Court cannot avoid the responsibility in an appropriate case.
I would indicate provisional measures proprio motu against both parties preventing such aggravation or extension of the dispute as might result in the use of force by either or both parties. Such measures do not conflict with any decision the Security Council has made under Chapter V11, nor with any obligation arising under Article 25, nor with the principle underlying Article 103. The way towards a peaceful resolution of the dispute may thus be preserved before the parties find themselves on paths from which there may be no return. This action is based on Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court”.
The imposition of sanctions against an aggressor, coupled with military aid to the State attacked has not historically worked. They have only made one party more determined in its actions. An example is Cuba which carried on relentlessly amidst decades of sanctions imposed against it. Short of nuclear devastation, capitulation is rarely achieved in the modern age. On the other hand, diplomatic negotiation based on judicial interpretation and intervention might well work in modern warfare. For this, the entire world should coalesce.
We should give this approach a serious try.