Leashing the dogs of war

Similarly, efforts are underway to ban, or to interpret existing legal standards to criminalize, weapons such as cluster munitions and depleted uranium projectiles, as well as to block the development of new military technologies like lasers or unmanned robotic systems, and strategies including attacks on electronic information nodes. Ironically, many of these technologies have the potential to reduce the amount of collateral damage in war--a major goal of Protocol I--or have already done so when used in combat. Yet the use of both cluster bombs and depleted uranium projectiles were among the allegations of wrongdoing considered by the prosecutor for the International Tribunal for Yugoslavia after the 1999 Kosovo campaign. The prosecutor's office correctly concluded that there was no current "consensus" that the use of these weapons violates the laws of armed conflict but conceded that such a consensus could develop in the future. This inherent tension among different doctrinal imperatives, and the disconnect between the broad goals being sought and the specific rigid command-and-control mandates being imposed, is similar to those found in areas of domestic regulation and reflect the "policing" model to which our allies have increasingly subscribed.

Enforcement

THE UNITED States and its allies are also deeply divided over the proper mechanisms for enforcing the laws of war. Traditionally, these rules were interpreted and applied by each individual state, in accordance with its own constitutional and judicial processes. This "domestic" approach has much to recommend. To begin with, it has allowed an interplay between enforcement actions and compliance-fostering institution-building and training. (The latter measures are indispensable if future violations are to be avoided and compliance culture enhanced.) Moreover, a number of key jus in bello issues necessarily require the inherently subjective process of balancing military necessity and humanitarian goals, and the outcome depends very much on who does the balancing. This point was candidly acknowledged in the report issued by the Hague tribunal's prosecutor, after investigating NATO's Kosovo operation:

   It is unlikely that a human rights lawyer and
   an experienced combat commander would
   assign the same relative values to military
   advantage and to injury to non-combatants--it
   is unlikely that [even] military commanders
   with different doctrinal backgrounds and differing
   degrees of combat experience or
   national military histories would always agree
   in close cases.

Such balancing can be accomplished well only in the context of a particular body politic and preferably by institutions, such as courts martial, with a substantial degree of specialized military expertise.

Unfortunately, there has been a distinct tendency on the part of many of our European allies and NGOs to denigrate domestic jus in bello enforcement mechanisms in general and military institutions in particular and exalt the virtues of international legal institutions. The Nurenberg trials, convened to punish the defeated Nazi leadership at the end of World War II, are usually cited as the first important departure from the primacy of the norm of domestic enforcement institutions. They are also described as having established an international or "universal" jurisdiction. The truth of the matter, however, is that the International Military Tribunal (IMT) that judged Hitler's surviving lieutenants never claimed such vast authority. Rather, it relied on the right of the Allies, as established by the Third Reich's formal unconditional surrender, to legislate for a conquered Germany.