Organization of American States
Washington D.C. October 25,1999

Breaking the Cycle of Impunity as a Step towards International Order
Mr. Roy Gutman,
Journalist

The 50th anniversary of the Geneva Conventions occurred without much ceremony, at least in this country and in this town and mostly in silence. It suggests the degree to which this great body of law, a universal code of conduct in conflict, has dropped out of the public discourse. True, President Clinton issued a press statement, which last time I checked could not be located on the White House web site. The ICRC wrote statements and op-eds and tried to draw attention. It was no better in the news media I and some colleagues in our little education project on the laws of armed conflict monitored the non-commemoration. We tried to rouse the interest of major newspapers, partly because we had produced a book that attempts to bring these conventions down to earth, but we found only one cared enough to write about it, the Christian Science Monitor, and they were already planning to do that. I should note that NPR was a major exception among broadcast media.

Now what is going on? President Clinton was on the beaches of Normandy when the 50th anniversary of D-Day rolled around. The Nuremberg Tribunal's 50th anniversary was the occasion for all sorts of commemorative books and television shows. The half-century after the founding of the UN was celebrated around the globe, though it was bittersweet, coming right after the conflict in Bosnia and the failure in Rwanda. The 50th anniversary of NATO was a big event in Washington. Even the Human rights convention, those lofty ideals that when first drafted had no force behind them, got a presidential ceremony last December. But the Geneva conventions seem to be the stepchild of the statesmen. It is a reflection, I think, of a cultural gap.

The four Geneva Conventions were drafted in what now seems like record time in the aftermath of World War II and the Holocaust. It is within that creative burst of legal drafting that was inspired by one compelling dictum: never again. The Nuremberg tribunal, which defined crimes against humanity, the Genocide Convention, which defined this new most terrible of all crimes, and the Geneva Conventions, which recodified the rules of armed conflict, were and are the three basic elements in what we now call international humanitarian law.

Today the four Conventions may be the least known of all major international treaties, and it is time that this change. For the Geneva Conventions are a long overlooked treasure that actually can guide statesmen through this confusing and unsettled period - a period where almost every government seemed to lose their moral compass The essence of these laws has been explained in detail, but I would like to give an analytical perspective on the importance of the Conventions: and this is that what all three bodies of law have in common. They sanction States that have crossed over the line from sovereign actions to massive, systematic, widespread crimes. That is they define what is not acceptable or tolerable in behavior from a State.

How did it happen that this body of law got to be viewed as such a side issue? I dare say there was nothing even close to what Kofi Annan did by his predecessors.

Well, it has to do with the way international life was organized after World War II. The UN was created and given the top position in international law. The Charter outlawed War as a means of settling difference. Instead there was to be collective security. It was a lot of words to say that war was outlawed, as we now know, but some believed the words were really facts at the time. So in 1949 when the discussion began on revising the laws of war, the UN decided it wanted no part of the enterprise.

The 1949 report of the UN International Law Commission summed up the complacent UN attitude: "War having been outlawed, the regulation of its conduct has ceased to be relevant. "Half a century later, with millions of civilians killed in conflict, we know that that was a complete illusion.

The Conventions thus remained what they always had been, the Geneva Conventions, the province of the ICRC. It was shortsighted for the UN to fob off the issue. Yet, for half a century the UN attitude has been more or less that the laws of war were not my department. How could that attitude have developed? With the distance that a half-century gives us, I can offer a theory as to why this attitude developed and why the discussion has been dormant for so long. One reason is that there was not only a judgment at Nuremberg, but a paradox as well. The trials were built around a prosecution strategy to convict German leaders for starting World War II, not for carrying out the Holocaust and myriad war crimes. Yet it was the revelations about the Holocaust that made possible the convictions of the top officials and officers, though not on the original charges. The message from Nuremberg thus was confusing. And absent an international criminal court to write the case law, it was easy to misconstrue the precedents set in Nuremberg. Few in the United Nations structure drew the right lessons at the that time, and the two cities with their two cultures, New York and Geneva, one focused on the rights of States, and the other on the protection of individuals, went their own ways. Until the 1990's. The reason was succinctly described by Deputy Secretary of State Strobe Talbott in a recent speech: "an evil - and that's the only word for it - that we had thought had been expunged by the middle of the century made a stunning comeback at the end." Or, as a top European Union diplomat put it recently, mankind seemed to be slipping back into barbarism.

I am referring to Bosnia and Rwanda. These events shocked the world, forced the creation of new institutions, two Tribunals, and eventually perhaps may lead to an International Criminal Court. These events have also shaken up governments and made them give some thought to which law is supreme: the Law of Nations as embodied in the UN Charter, or International Humanitarian Law, embodied in the Geneva Conventions and other instruments. In Kosovo this year, the members of NATO finally agreed they could not stand by and watch another genocide in Central Europe, and the action fell, I believe, within the obligations of States under IHL. This was the first real humanitarian intervention by the Alliance - not to help an ally as in Kurdistan, but defenseless civilians. And now in Timor, and this time with Security Council backing, Australia stepped in where the United States feared to tread, and it acted to halt what may well be Crimes against Humanity. But two interventions do not create a new world order.

In an unusual reversal of the usual order, we've seen action before words.

In the interim period the ICRC with full responsibility kept the flame going, and more than that, helped advance the law, disseminate it, and do everything it could on the ground to implement it. The problem for ICRC is twofold.

One is that since ICRC is the neutral observer that is most knowledgeable about the law, it is in the best position to spot violations. But because its delegates must cross the line to the other side, to ensure that the law is respected, for example that prisoners of war are protected as the law stipulates, they cannot ordinarily implement the law in any sense without jeopardizing their humanitarian mission. Besides, ICRC is a humanitarian organization, not a tribunal.

The second problem is that the law requires nations to act in order to preserve the law. The first article reads in the Geneva Conventions, and this is a binding treaty, that every State must uphold the treaty and see to it that it is upheld in all circumstances. In the Genocide Convention it is stated that every party must punish and prevent Genocide. But who is to remind states of this duty if leaders on the whole would prefer not to intervene in anyone else's business or to suffer the interference of others in their business? Does anyone expect the ICRC to call publicly for a military intervention? I learned long ago in the field that the ICRC has a euphemism for this very word. It is that states must step up to their responsibilities and recognize that only a political solution will resolve a problem.

So there has been a gap that UN until now was unwilling to fill, and ICRC for very understandable reasons could not fill. Who should fill it? The exact nature of the international institutions is not for me to propose. I do think that whatever the institutions, the law should be respected. It should be implemented. For the first time there are bodies implementing it, in Hague and Arusha. Possibly there should be an ICC; certainly the Clinton administration favored one until it came to the negotiations over the details in Rome.

But I would like to propose a complimentary approach, and that is to try in our different ways to make this law come alive not only within governments, but also with the public at large. The law has many complexities, but it has an underlying common sense to it. It does not overreach. And while it is dry, the subjects it tackles are not. The public in all our countries has absorbed the culture of principles regarding human rights; it should be possible to absorb the principles of minimum standards in war. We all know when atrocities, ethnic cleansing, genocide are occurring before our eyes. This is not astrophysics. It is simply crime, massive evil. And what I would like to suggest is that the public has a stake in preventing and punishing it. Kofi Annan may be one of the first to recognize the potential value of the Conventions. On August 12, he announced that henceforth, a miniature Geneva Convention will apply to UN Blue Helmets. Imagine! For 50 years, the UN acknowledged the applicability of the laws of armed conflict only ad hoc. The official position given by the UN legal adviser was that the United Nations was not a party to the Conventions. During the chaos in East Timor, he publicly warned that if UN forces were not permitted to take charge, Indonesia "cannot escape the responsibility of what could amount, according to the reports reaching us, of crimes against humanity." Indonesia relented, and Australia has moved in to take charge at the head of a peacekeeping force.

Last month, in his annual report to the General Assembly, Mr. Annan asserted something new from his bully pulpit: that there is a "universally recognized imperative of effectively halting gross and systematic violations of human rights with grave humanitarian consequences." Working out the ramifications and applications of this statement will be no simple matter, but he has by his words and action kicked off a debate that is quite properly taking place in the central forum of world politics, at the United Nations.

So my point today is that the Conventions have been treated like a Cinderella at times, and it will take more than one prince charming to discover the values, the uses, the guidance that it contains. No one should leave it up to the Secretary General. This is something that everyone can subscribe to and support. As matters of fact, all our governments have long ago become parties. But to reach the public, it first it has to be brought down to earth. You, I, your citizens can understand it; and it is time that everyone takes ownership. That is the way I believe we can break the cycle of impunity.