First Honorable Mention, Colin L. Powell Joint Warfighting Essay Contest
The International Criminal Tribunal for the Former Yugoslavia in The Hague—which brought former Serbian President Slobodan Milosovic before it in July 2001—is writing the laws of war. U.S. military professionals must engage this process now.
It is 2014. The war in the former Yugoslavia finally has ended. It did not end when the gunfire ended; the gunfire stopped in Bosnia and Croatia in 1995 and in Kosovo in 1999. It did not end with the sound of a pen on paper; the peace agreement at Dayton and the "military-technical" agreement at Kumanovo only advanced the possibility of peace. It did not end with the arrest of Slobodan Milosovic. Nor did this war end with the sound of a hammer on a nail, a busy marketplace, or a democratic political debate. These were necessary, but not sufficient, conditions.
The war in the former Yugoslavia, if indeed it does end in 2014, will end with the sound of a gavel striking wood. Only then, after the last indicted Serb, Croat, Bosnian Muslim, or Albanian is either found guilty or acquitted of war crimes by the International Criminal Tribunal for the Former Yugoslavia (ICTY), can this war be said to be over.
This will be something new. No war ever has seen the sort of judicial scrutiny that this Balkan war will have witnessed. Command decisions and strategies, by the time the court shuts down sometime in the middle of the next decade, will have been examined in detail and adjudicated as "legitimate military actions" or "war crimes." The decisions of the tribunal will transform our strategy and doctrine; affect our organization, force structure, and combat readiness; and dictate our target selection and choice of weapons for the rest of the century. In fact, this impact already is beginning to be felt.
It is becoming increasingly clear that wars will end in courtrooms. Nearly 50 years passed between the end of the Nuremberg trials and the formation of the ICTY It took only a year, however, between the founding of the ICTY and the constitution of its sister court, the International Criminal Tribunal for Rwanda. Today, nations are discussing the establishment of an International Criminal Court (ICC) that will sit permanently to judge war crimes. While the current provisions of the ICC statute are impermissibly broad and remain under negotiation, the United States has signed (but not ratified) the treaty, and it seems likely that the ICC (in some form) will become a reality. In whatever form it takes, the ICC will look to the ICTY for both its lessons learned and its legal precedents.
While the concept of war ending in court sounds odd—perhaps even disconcerting—it is a generally good development for the U.S. military. In fact, it is good for any disciplined military that chooses to teach and obey the rules of war.
What are the laws of war? Each year, soldiers sit down with their judge advocates and talk about this complex subject. They discuss the Geneva Convention. They talk about Nuremberg. They debate, for a few hours, scenarios designed to test their sense of balance between mission requirements and the obligations of justice.
The ICTY, however, is busy taking the guesswork out of the process. Soon it will be possible for platoon sergeants and lawyers alike to state fairly unequivocally, "You do that, soldier, and you'll get 5-12 years." Period. In this way, the ICTY will have a huge impact on the way disciplined armies conduct themselves on future battlefields. It is essential that military professionals understand this process. It is equally essential that we commit the resources necessary to ensure the ICTY does a good job.
Three Reasons
The ICTY will affect the way we conduct ourselves as soldiers in a number of significant ways. First, the wars in the former Yugoslavia are "real" wars. Unlike Rwanda—which was more nightmare than war—the conflicts in the Balkans are being fought by armies (of a sort) and generally led by professionally trained (if not professional) officers. The equipment—tanks, machine guns, aircraft, helicopters, artillery, radios—is similar enough to our own to draw meaningful comparisons regarding the appropriateness of its use. The organization of the forces (corps and brigades), the military decision-making processes used, even the operations orders written are not so far from our own practices as to be unfamiliar. In short, it will be impossible to ignore the lessons learned in this conflict regarding the law of war.
Second, the court is credible. Unlike Nuremberg, which is sometimes criticized as a court formed and run by the victors, the ICTY was formed as a result of a U.N. Security Council resolution and is run by the international community. Criminal prosecutors, judges, and experienced street cops from all over the world staff the tribunal. More than 100 applicants vie for each position available. This ensures that the best, brightest, and most dedicated are working to put behind bars the butchers and rapists—on all sides—that infested the Balkans for the past ten years. Even the Serbs are finding it increasingly difficult to argue with the court's credentials. The justice minister from the Republika Srpska (the Serb entity in Bosnia) recently returned from The Hague and grudgingly stated for the local Bosnian press: "I saw that it is a highly professional court, whether or not we want to admit it." Precedents set by a well-staffed, dedicated, and professional tribunal sanctioned by the international community and conducting fair and meticulously documented war crimes trials will be hard to overcome.
Finally, justice is necessary for mission accomplishment. For more than a thousand years, justice in the Balkans was made at the end of a sharp knife. War after war, tyrant after tyrant, the people of the Balkans have learned that if there is to be a reckoning, do not count on anyone but oneself and one's family to do it.
It does not have to be this way. In fact, the West has placed a $50-billion bet (a conservative estimate of what it has cost us so far) on the idea that a future of conflict and revenge is not inevitable, that war does not have to be a way of life, and that the Balkans can become a region of stability and prosperity.
It is a bold gamble worthy of the American spirit, but one that is doomed to failure if the people in the region lose faith in our commitment to justice. Unless we bring the war criminals to The Hague, try them, and put them away for a very long time, the people in the region eventually will reach for their guns to settle old scores. This will be a failure not only for us but for our sons and daughters as well, who likely will have to go to the Balkans again because we did not do the job properly the first time.
Wishful thinkers will argue that the ICTY will have no impact on U.S. soldiers because the United States will never submit itself to the jurisdiction of an international court. While it may be true that no U.S. soldier will ever be put on trial in an international court for war crimes, could we ignore credible allegations that one of our soldiers had committed an atrocity? Would we want to ignore such allegations? If we could not, what law would we apply? There is very little U.S. law on the subject of war crimes such as genocide and crimes against humanity. We likely would look to similar cases in the ICTY.
More important, how many operations will never even be considered because some lawyer on some staff in the future will say the fateful words, "Sir, that may not be legal." In this respect, at least, the court already is having an impact. That impact will grow over the next few years as the tribunal increasingly moves away from issues involving rape and murder and toward other issues such as command responsibility, proportionality (i.e., how much force is enough), and target selection.
Recommendations
These conclusions have enormous consequences for professional soldiers, sailors, airmen, and Marines. What can we do?
First, we can support the tribunal. The tribunal is doing good work; it is important for the success of our mission in the Balkans and it is important that justice be served. The United States already is supporting the tribunal by providing a substantial amount of the tribunal's budget and by providing a great deal of information as well as access to U.S. officials who might have particular insights into the motives of those accused of war crimes. In addition, several U.S. agencies have in place very liberal leave-of-absence policies which allow some of our best attorneys and analysts to work on various cases with the tribunal. We can do more. Specifically, we can re-commit ourselves to seeing this process through and doing what we can to make it work. This demands creative thinking that balances our national security interests with the undeniable advantages that success in the ICTY will bring.
Second, we can work to understand the tribunal. Like it or not, the tribunal is writing the law of war for the 21st century. The U.S. military's minimal obligation is to understand what is going on in The Hague. Presently, the nexus between the tribunal and the U.S. military is fairly small. The Army, Navy, Air Force, and Marine Corps depend largely on a couple of thinly staffed State Department offices to identify, report on, and represent our interests with the court. We should find the resources to create a properly manned and funded staff element to work with the State Department, nongovernmental organizations, and the tribunal itself. This element would be responsible for the early identification of issues that could affect the U.S. military's way of doing business. The goal would be to resolve those issues and incorporate those results into our strategy, doctrine, and tactics. This element also would be responsible for keeping the senior leaders and the rest of the military informed about what is happening in The Hague and why it is important. It would make recommendations concerning how and why the U.S. military should engage and what policies it should adopt. This is strategic scouting, and it should be located in The Hague. While lawyers need to be assigned to this special staff section, lawyers should not run it. What happens at the tribunal affects the entire military—lawyers should make up only a small part of the staff.
Third, we can work to make sure that "good law" becomes legal precedent. It is in our interest to put at the tribunal's disposal our experts to help the court understand the complexities of modern military operations. Other agencies in the United States have established liberal leave-- of-absence policies that give their personnel the ability to work for the ICTY without losing the benefits of their positions or ranks. Other countries, notably the United Kingdom, do the same with their military officers. We are missing an opportunity to shape the battlefield of the future by not allowing our analysts, lawyers, and military investigators the opportunity to work at the tribunal.
If we do not act soon, we will be leaving our future courses of action at the mercy of the judgments of the prosecutors, investigators, and judges at the ICTY. While it may be true that war is an endeavor too important to be left to generals, it is certain that the law of war is too important to be left to lawyers.
Major Wheaton is serving as an attaché in the office of the legal counselor at the U.S. embassy at The Hague, Netherlands, where he works with the ICTY on war-crimes issues. He is the author of The Warning Solution: Intelligent Analysis in the Age of Information Overload (Fairfax, VA: AFCEA, 2001).