When the first edition of this book appeared in 1999, on the eve of the fiftieth anniversary of the Geneva Conventions, it seemed as if the greatest challenge to international humanitarian law—the code of conduct for belligerents in war first drafted in the mid-nineteenth century and reformulated after World War II and the Holocaust—no longer came from States with functioning legal systems but rather from rogue actors. Whether guerrilla bands or repressive States, they were prepared to employ any method from terror to torture, from mass rape to ethnic cleansing, from crimes against humanity to genocide itself, to suppress rebellions or advance particular ethnic, tribal, or clan interests. After the massacre of Bosnians at Srebrenica and of Rwandan innocents at the Nyarubuye Catholic Mission, it was easy to believe, as we put it at the time, that “the locus of conflict [had] shifted to the poor world, where governments and insurgent groups routinely have disregarded the legal regime” of international humanitarian law.

Few of us thought the day had actually come when the leading powers would carry out their commitment in Article One of the four 1949 Geneva Conventions, not only to respect the rules but also ensure respect for them in all circumstances. The authors and editors knew from bitter personal experience how alternately cynical and passive our own governments could be. While it was laudable that the major powers had created special tribunals for the former Yugoslavia and for Rwanda, the action was in fact a substitute for military interventions that might have halted the crimes as they were being committed. The slaughter in Chechnya proceeded with scarcely a word from Washington or the governments of the European Union. Increasingly it seemed as if systematic crimes against civilian populations, the illegal conduct of belligerents up to and including genocide—the gravest crime of all under humanitarian law—were in danger of becoming the norm rather than the exception in conflict zones from the Caucasus to the Sudan.

And yet, in the post-Cold War, pre-9/11 world, there was reason to think that heightened public consciousness of international humanitarian norms might pressure governments to go beyond lip service and act on the basis of these norms. News coverage had helped force governments to protest the greatest abuses and shame the perpetrators into halting them, so the media saw news value in identifying crimes in real time. In setting up ad hoc tribunals, the international community declared the excesses to be unacceptable and devised a transparent process that could establish a historic record of what had actually happened. Many, particularly human rights advocates, saw a glimmer of hope that the establishment of new judicial institutions would prefigure a different, less cynical, attitude toward war crimes and crimes against humanity and a new determination to translate the laws of war into actual practice, both during conflicts and in their aftermath. Reality of course fell short of these hopes. The tribunals never had their own police powers, and major countries, starting with the United States, allowed impunity to take hold in the former Yugoslavia by refusing to risk a soldier's life to capture an indicted war criminal. On the heels of the two ad hoc tribunals for the former Yugoslavia and Rwanda, the United Nations established a permanent International Criminal Court, and, although the United States kept its distance, the ICC's legitimacy was not in question in Europe and most other parts of the world. From its inception the ICC had at least some practical impact—notably in helping prompt the withdrawal of five African states from the Democratic Republic of Congo in 2002 just before their leaders would have been subject to indictment for the crimes that were committed there.

To those who signed on to its provisions, the ICC was an emblem of the decline of maximalist interpretations of State sovereignty, and of the heightened consciousness of international humanitarian law, as much as it was an effective short-term legal instrument. Thus, the legitimacy of international legal regimes that imposed limits on what States could do while prosecuting armed conflicts seemed to have grown stronger by the end of the millennium. In a world of mass migration, the free movement of capital, and communications that recognized no national boundaries, the idea that States could do more or less anything they wanted within their own borders—which had been the bedrock assumption of international relations theory and practice since the Peace of Westphalia in the 17th century—no longer made the sense it once had. After all, in such a world why shouldn't an international court, or, in extreme cases, the courts of another country have the right to bring war criminals to justice? Was this not in keeping with the spirit of the millennium, the spirit of what then-United Nations Secretary General Kofi Annan had dubbed “the rights of the person”?

Of course it remains true that the law was being applied selectively, with one set of rules for the formerly colonized and another for the
former colonizer. Nonetheless, a two-tiered system of international justice still seemed to most of us like a vast improvement over no international system of justice at all. In other words, while the limitations of the new international legal regime were obvious, the progress it represented for humanity as a whole seemed undeniable. And who was to say that it might not lead over the long term to greater justice and equity? Such radical transformations as that envisioned by the expansion of international justice cannot be properly evaluated using criteria of short-term results.

Viewed from the vantage point of 2007, five years into the so-called “Global War on Terror,” the hope placed in international justice may seem terribly naïve. Our own error was not in putting excessive faith in international institutions, but in assuming that the commitment to international humanitarian law on the part of well-off Western countries was permanent—in short, that if the world had not yet turned the moral corner, these countries either had or could be pressurized into doing so. And a grievous error it was.

The new U.S. administration, which came to office in 2001 by a decision of the U.S. Supreme Court following the closest election in history, viewed the International Criminal Court as already an intolerable infringement of the sovereignty of a democratic State. One of President George W. Bush's very first actions was to withdraw the signature of adherence to the new court that his predecessor, Bill Clinton, had given in his last days as President. That was a harbinger of a radical shift in attitude that followed the attacks of September 11, 2001. On its own, and without consulting Congress or the Courts, the new administration decided unilaterally to reinterpret the 1949 Geneva Conventions, a document to which the United States is a State Party and which was ratified by the U.S. Senate, and dispense with many of the most fundamental commitments.

The attacks of September 11, and the subsequent wars launched by the United States and Great Britain in Afghanistan and Iraq, proved how tenuous those commitments were, especially on the part of the United States. The assault directed by Osama bin Laden against principally civilian targets, from airliners to the World Trade Center, could have been denounced as a monumental crime against humanity under international humanitarian law. But rather than rally the world—every society, every ethnic group, every religion—behind the universal norms and the Conventions to which every State is a party, President George W. Bush chose a unilateral course, emphasizing American military power and the drive for revenge. Far from drawing upon the moral power of a body of law incorporating the lessons of history and of the worst excesses of humankind in war, the Bush Administration argued that international humanitarian law was not binding on Washington in this war. The terrorists, administration lawyers insisted, were “unlawful combatants” and as such were exempt from the protections afforded by the Geneva Conventions. They could be held in secret, locked up indefinitely without trial or even a procedure for determining if they were combatants or non-combatants, and, though the Bush Administration insisted otherwise, they could be tortured. In short, the United States government in effect released itself from the obligation to obey the norms of the laws of war to which the world had believed that it had irrevocably committed itself.

In a very short time, the United States went from being the guarantor of the regime of humanitarian law to becoming a major violator of it. The jihadis committed crimes against humanity by targeting and killing innocent civilians wholesale; the American government violated the law by systematically denying its protections to detainees—refusing even after two adverse Supreme Court rulings to set up a transparent system that would differentiate between war criminals, combatants, and civilians often captured far from the battlefield. The selection of the U.S. Naval Base at Guantanamo Bay, Cuba, as the site of the biggest of the new prisons gave the administration what it claimed was a legal basis for avoiding any code to cover those detained—whether the Geneva Conventions, the Uniform Code of Military Justice, the civil and criminal codes of the United States, or even the laws of Cuba. In March 2003, the Bush administration launched its invasion of Iraq and publicly acknowledged the applicability of the Geneva Conventions and other international codes. But the precedent of abusive interrogation techniques and no legal protection had been established, and when insurgents began assaulting the U.S. forces in Iraq, the American military imported techniques from the “black hole” of Guantanamo into Abu Ghraib prison. The ensuing scandal proved enormously costly to America's military presence in Iraq and to its prestige around the world. The international news media arrived late to this story, another sign that increased consciousness of humanitarian law had been a fleeting phenomenon of the late 1990s.

Whether the suspension of humanitarian law will prove to be an anomalous development that will be rectified when a new administration takes office, or whether instead it represents a permanent transformation of the context in which international humanitarian law is applied, is unknowable at the time of this writing. The Congressional decisions authorizing military tribunals, curtailing habeas corpus, and winking at torture are not encouraging. On the other hand, perhaps a shred of comfort can be taken from the fact that much of the criticism of post-9/11 U.S. policies on these questions has been couched in terms of international humanitarian law.
Clearly if the United States and the other well-off Western countries give themselves a blanket exception to the laws of war as they go about prosecuting the war against radical Islamism, then they will at best remain a set of norms taught in law schools. If the United States has no deep commitment to these legal norms, there is no reason to expect that the countries of the poor world will take up the slack.
Despite the Bush administration's assault on international humanitarian law, and its avoidance of accountability under law for those it has detained, our conviction remains the same as in 1999: this form of law is imperfect but it is not obsolete. The better the principles are understood by the general public, the more likely that governments might be shamed into observing them and pressing for their global implementation. If on the other hand, great powers join the rogue States in diluting and actively subverting these legal norms, or carving out exceptions to them, then our future is a world in which wholesale violations of the laws of war will be the norm. In other words, we shall see the triumph of the old barbarism, not the faint glimmers of humanity slowly growing less cruel.

Whether a book like this can affect the debate at a time when people are afraid and governments seem prepared to do everything in their power to legitimize and even foment this great fear is an open question. But that does not make it less imperative to try. The choice is stark: law or lawlessness. It is against this backdrop that we offer this revised new edition of Crimes of War.