Understanding the Laws of War & Conflict.

Understanding the Laws of War & Conflict.

Sir Geoffrey Nice KC has practiced as a barrister since 1971 and is renowned for leading the prosecution of Slobodan Milošević, former President of Serbia. Much of his work since has been connected to cases before the permanent International Criminal Court – Sudan, Kenya, Libya – or pro bono for victims groups in Iran, Burma, North Korea. He is chair of the China Tribunal and the Uyghur Tribunal, which have investigated human rights abuses in China. Sir Nice is a Master of the Bench at the Honourable Society of the Inner Temple and was the Gresham Professor of Law between 2012 and 2017. Since 1984, he has sat at the Old Bailey and other jurisdictions, tribunals, and inquiries as a part-time judge. Between 2009 and 2012 he was Vice-Chair of the Bar Standards Board, the body that regulates barristers.

William A. Schabas OC is Professor of international law at Middlesex University in London, and Professor of international human law and human rights at Leiden University (at the Hague). He is President and Chairman of the International Institute for Criminal Investigation. From 2002 to 2004 he served as one of three international members of the Sierra Leone Truth and Reconciliation Commission. Professor Schabas has worked as a consultant on capital punishment for the United Nations Office of Drugs and Crime, and drafted the 2010, 2015 and 2020 reports of the Secretary-General on the status of the death penalty.

To better understand the laws of war & conflict, I speak to Sir Geoffrey Nice KC (Former Prosecutor at the International Criminal Court, who led the prosecution of Slobodan Miloševic) and Professor William A Schabas OC (International Criminal & Human Rights Lawyer, who Served on the Truth & Reconciliation Commission for Sierra Leone). 

Q: What are the legal instruments which ‘govern’ conflict?

[Sir Geoffrey Nice KC]: The historical context is important. Despite romantic notions about laws of war being found in on Cyrus’ Cylinder, (circa 539 BC) or in the Bible’s Book of Deuteronomy, effective legal frameworks didn’t emerge until the latter part of the 19th Century. They began with the American Lieber Code – military law for wartime conduct applied by Abraham Lincoln to the Union side in the American Civil War – and the first Geneva Convention, followed by the Hague Conventions, and now found in the modern iteration of the Geneva Conventions and their protocols. These conventions and protocols form the backbone of International Humanitarian Law, as further evidenced in the statutes of the ad hoc UN Yugoslav and Rwanda tribunals and, most authoritatively now, in the statute of the International Criminal Court.

For those seeking to delve into detail sufficiently to inform their discussions, it is best to refer to these documents themselves. There are other significant conventions, such as those on torture and hostage taking.

The cumulative impact of these legal instruments indicates, perhaps unsurprisingly, that initiating war is rarely, if ever, lawful. However, responding to acts of war can be justified. For the current Russia-Ukraine and Israel-Gaza wars, there are arguments to be made – that may one day be examined in a court – that Ukraine’s engagement in war was justified due to an attack on its territory and that Israel’s initial involvement and some of its continuing conduct in war could be lawful on two grounds: first, self-defence; second, recovery of hostages.

Q: How do nations decide whether (or not) to go to war?

[Sir Geoffrey Nice KC]: A concept that has become prominent in recent discussions addressed to newspaper readers, media viewers, and radio listeners in the past seven weeks is ‘proportionality’. This concept, while vital to have in mind in considering the lawfulness or otherwise of use of force in almost all armed conflicts, lacks a precise definition. If, and when, contested in any war crimes trials, it would ultimately be a matter for judicial consideration and determination. However, without judicial determinations to guide us, there are other factors a country at war and its military must consider.

Consider, simply as an example, the unspeakable attack by Hamas on Israel. If –improbably/inconceivably – it had been possible confidently to say that this was to be the final extent of the aggression with no hostage-taking and with Hamas declaring an end to its military actions, it might be challenging to justify a retaliatory attack. In this fanciful situation to attack Hamas could be perceived as vengeance. Vengeance might seem justifiable to the regular non-specialist citizen. But response to, and resolution of what lay behind the merciless attack, should theoretically still be for peaceful resolution in accordance with the UN Charter. As it happens, Hamas’ alleged declaration to repeat such actions as it took on 7 October 2023 indefinitely and its’ taking hostages provided a basis for Israel to argue that its response was in self-defence and also a legally justified effort to recover hostages.

Once a state decides to engage in war, under circumstances it deems justified, the principle of proportionality becomes paramount. This principle demands careful consideration of protection that must be given to civilians and civilian property, balancing military objectives against foreseeable collateral damage. This balance cannot be made by a formulaic algorithm – there isn’t one – but by human judgment. In recent decades, it has become apparent that that human judgement is assisted by legal advisors who play a crucial role in these decisions, offering guidance on the legality of military actions.

There are only a few public explanations of legal reasoning for particular attacks made in the Russia-Ukraine and Israel-Gaza wars, but the participation of legal counsel in these decisions is nowadays effectively essential. Israel’s occasional public reflections on how it justified some specific action demonstrate its recognition of the need for legal justification. But what is said in public is necessarily limited by a warring state not revealing secret intelligence and other matters necessarily kept confidential until, at the very earliest, hostilities are over. It must be very hard for those actors- in modern armed conflict- to apply the law properly; and as a consequence, it is very difficult for the rest of us to assess the lawfulness of their actions while fighting continues. The role that legal frameworks play in guiding those making grave decisions – where loss of civilian lives resulting from military actions is foreseen – is nevertheless clear.

Q: How does the legal basis for war therefore transmit down the chain of command to the soldiers on the front line?

[Sir Geoffrey Nice KC]: Adopting lawful rules of engagement, which may have to change over time, and ensuring they are effective throughout the entire chain of command, from generals to corporals is never easy. And, at every level, military personnel acting according to the rules of engagement are also expected to reflect the general law of war. I suspect, and this is without specific authority or personal experience, that this may become exceedingly challenging for a regular soldier. They may well face situations where their understanding of the rules of engagement fail to provide clear guidance for some particular circumstance.

It is in such situations that a soldier’s general understanding of the law might come into play and be far more valuable than the views of a lawyer advising at distance from a front line. To illustrate, I recall a visit to Gaza in late 2014 following ‘Operation Protective Edge ‘, the last major Israel-Hamas conflict before the war that started on 7th October 2023. A very senior British Army general examined several sites of attacks of very different kinds by the Israeli Defence Force for me the better to understand how concepts of lawfulness and proportionality in warfare might operate ‘on the ground’.

A particular incident can explain the general problem. At one site, a mature man carrying a white flag was shot dead by an Israeli soldier. To those less experienced or with a ‘soft’ generally compassionate outlook, this might immediately seem a clear case of unlawful killing – a ‘war crime’. However, the general offered a different perspective. He considered the terrain and highlighted the dilemma faced by the soldier in high-risk situations: might the soldier be genuinely uncertain over whether the white flag genuinely signified surrender? Could it have been a deceptive tactic for a fatal ambush on the soldier, especially if it occurred in a fast-moving frightening conflict?

Rules of engagement might state clearly never to shoot someone with a white flag. The reality on the ground might be of a situation where such a rule is simply not black and white. Might that reality allow for a decision that, though seemingly contrary to the rules, could be justified under specific circumstances? This example may help to illustrate the difficulties soldiers face in when in armed combat and the challenging nature of applying rules of engagement in real-time, high-risk situations.

Turning to the general laws of armed conflict which apply effectively up and down a chain of command. Everyone in the chain has to regard the prohibition against attacking civilians, civilian property, protected buildings such as hospitals and to act proportionately where collateral damage to civilians or civilian property is foreseeable.

It is challenging to extend the discussion beyond these very general considerations. The intersection of these different legal (and even some moral) guidelines in the heat of conflict presents a complicated landscape, one where straightforward answers are often elusive. This reflects the inherent complexities of warfare and the application of international law in such extreme situations.

Q: What are crimes against humanity?

[Professor William A. Schabas] The concept of “crimes against humanity,” as initially defined for the Nuremberg trial, emerged to address atrocities committed in Germany, particularly against Jewish and other minority groups, including political factions and the disabled. These acts demanded accountability, which the existing legal frameworks, recognizing state sovereignty, couldn’t provide. The creators of the Nuremberg trial—namely the four occupying powers of Germany—crafted this category with precision, being cautious not to implicate themselves. At the time, they were aware of their own vulnerabilities to international law if any persecution against minorities was deemed an international concern. Originally, in 1945, this concept was linked to aggressive war.

Q: What is the term genocide, and why is it often misused?

[Professor William A. Schabas] You’re right in observing that the term “genocide” is used in various contexts, often without adhering to its legal definition under international law. Personally, I don’t find such usage objectionable as people are free to use words in their own way. However, it’s crucial to recognize that there is a distinct legal definition with international consequences. Under international law, genocide specifically requires the targeting of a group identified by national, ethnic, racial, or religious characteristics, often termed ‘ethnicity’, and aims at the physical destruction of this group.

This is where controversies often arise, particularly when there’s insufficient evidence of an intent to physically destroy the group. Actions like expelling a group from a territory or other objectives might be involved, complicating the matter. Identifying such intent isn’t always clear, and even when there’s suspicion, proving it becomes challenging. For a legal determination of genocide, relying on circumstantial evidence like a pattern of conduct is insufficient unless it’s the only reasonable explanation. There are instances where situations resemble and even ‘smell’ like genocide, but without the ability to rule out other explanations, it’s impossible to legally conclude that genocide has occurred.

Q: What is apartheid?

[Professor William A. Schabas] Apartheid is recognized as a crime against humanity, falling under the broader category of crimes against humanity which includes various subcategories based on major human rights violations. The Rome Statute of the International Criminal Court defines apartheid as a systematic pattern of oppression against racial or ethnic groups, associated with regimes founded on racial superiority. It’s a specific facet of crimes against humanity, closely related to the broader concept of persecution.

There’s often a misunderstanding or misuse of these terms, leading to a conflation of different acts. While all crimes under the umbrella of crimes against humanity are serious, the emotional weight of certain terms can politicize acts instead of placing them within the purview of international justice. This politicization is particularly evident with terms like genocide and apartheid, which carry a significant historical stigma. The technical definitions of these terms mean that some acts might fit these categories without being as intuitively shocking as we might expect, and vice versa. For example, the heinous acts of a serial pedophile killer, while horrifying, would not typically fall under the concern of international crimes.

Such crimes are generally addressed by the criminal justice systems of the countries where they occur, as they are committed by individuals who are marginalized and universally condemned by society. In contrast, crimes against humanity, genocide, and apartheid are often perpetrated by states or state-like entities. The jurisdiction where these crimes occur is unlikely to address them effectively, especially without a regime change. This discrepancy is a key reason why these crimes have been internationalized, to ensure they are addressed beyond the limitations of national legal systems.

Q: Are international laws, and mechanisms, effective at holding leaders to account?

[Sir Geoffrey Nice KC]: The short answer must be ‘No’.

But let’s consider other aspects of this issue, first concerning non-state actors in conflicts. Non-state actors, such as ISIS, are bound by the same obligations to respect international humanitarian law as those which bind states. There is little or no evidence that non-state actors respect the laws of war. There may be limited prospects of bringing their fighters to courts for trial of war crimes that they may have committed. But when engaging with these actors, a lawful warring state must still attempt to follow the law concerning collateral damage to civilians, proportionality and so on. There can be no loosening of the law simply because of the non-state actor’s status.

However, while the lawful state’s duties remain unchanged, some decision-making may shift based on the non-state actor’s different approach to civilian protection. This doesn’t imply a general change in duty, but it does influence the dynamics of decision-making in conflict.

Does the lawful state obeying the law, together with the limited prospects of crimes by the non-state actor’s fighters being tried in a court for war crimes, deter the next non-state actor for waging war?  There is no evidence that this happens.

Reflecting on the broader question of the effectiveness of war crimes tribunals as a deterrent, there is little evidence to suggest that these tribunals deter future unlawful actions by state leaders. The Korean and Vietnam wars of the 1950s and 1960s indicate that the Nuremberg war crimes trials of the Nazi leadership in 1945-6 did not significantly impede or stop wars that were in part at least unlawful.

Leaders in power often become immune to considerations other than their exercise of power. That does not mean that war crimes trials are worthless because they serve various other purposes: they establish a historical record, provide retribution, and they might deter individuals from committing war crimes in specific circumstances. However, the broader deterrent effect against future acts by leaders of great powers (some nuclear) or others, remains uncertain and problematic. War crimes trials may actually have no general deterrent effect.

This leads to the uncomfortable necessity of considering what measures could effectively prevent future leaders from initiating catastrophic – nuclear – conflicts. The answer might lie in looking back at history, such as the behaviour of the general public in Nazi Germany. Complicity and acquiescence were widespread and that has to be considered beside the theoretical possibility that internal rebellion or resistance at any level might have deterred Hitler and his fellow leaders from what they did.

This possibility might suggest that deterrence of the next would-be criminal warmonger could be affected by recognising the responsibility of the people of a nation in a present conflict – and punishing them. Might ‘punishing’ this war’s people of a state led by a criminal warmonger – by reparations, other restrictions in international education and sport etc – deprive the putative next warmonger of the public support for war that they would need? Might the next warmonger’s having to give serious thought to the theoretical possibility (above) – that did not happen in Nazi Germany – deter them? Such thinking is unsettling as it relies on the unacceptable notion of collective responsibility and collective punishment. But international mechanisms seem unable to stop war. Leaders do not do as the UN Charters says they should. Should we, at least, give deep thought to the collective responsibility of a nation’s populace when an unlawful war is waged?

This line of thought, though harsh and unattractive, might be necessary to explore effective deterrents against future conflicts. It’s not just about the role of international bodies like the International Criminal Court or special tribunals but a broader contemplation of what measures could genuinely prevent the next catastrophic conflict. This perspective is not one readily embraced in public discourse but is an essential consideration in understanding and preventing future conflicts.

Q: What can we do to create – therefore – effective deterrents against heinous acts?

[Sir Geoffrey Nice KC]: The prospect of power significantly changing an individual is a familiar phenomenon, as history often illustrates. Taking the example of Milošević, with which I am familiar, we see this transformation vividly. Originally a rather mundane banker and member of the communist party, the acquisition of power fundamentally altered him. Initially, his actions during the 1990s conflicts were not outright criminal, but eventually, he descended into criminality in war and even outside war, exemplified by the post-conflict, cold-blooded murder of his one-time mentor, Ivan Stambolić who had returned from the quiet life and attempted to dethrone Milošević by democratic means.

Reflecting on Milosevic’s rise, particularly his surge to power in Kosovo towards the end of the 1980s, it is clear that the attraction and thrill of power can change a person. Prior to this, there was no indication that he was inherently a bad man or prone to violence. He was simply what he was until power transformed him.

Returning to your point, if systems automatically bestow substantial power upon individuals, which seems unavoidable even in democracies, this transformation may be inevitable. Our democracy, for example, has been described as having the potential to be a ‘democratic dictatorship’, in part a consequence of the first-past-the-post electoral system which grants such power to a political leader. Once individuals have such power, it tends to consume them internally, and changes their character and actions. They may not even ponder the potential consequences they could face as the changed humans that they have become, for example if they go to wars and are responsible for war crimes; their focus is consumed by their power and its preservation.

Q: Does the composition therefore, of parliaments, make a difference?

[Sir Geoffrey Nice KC]: I think so, especially in light of recent developments within our United Kingdom. Reflecting on these events – Brexit in particular but also Johnson generally and Truss – has reinforced a belief I’ve held previously: altering our voting system to allow greater representation of moderate parties could have potentially averted what many perceive as a succession of subpar prime ministers. Two of these leaders seemed primarily driven by the lustre of power, while three—namely Cameron, May, and the current incumbent—ascended to high office without the requisite skills to wield such authority effectively.

This naturally leads to these questions: Having a plethora of moderate parties might result in a seemingly dull political landscape and potentially protracted government formation processes, as witnessed in other countries. These nations often report higher levels of contentment. Might a change in our voting system spare us from the kind of adverse decisions that have recently plagued our country, including those related to warfare. This perspective suggests a need to weigh the potential benefits of a more varied and inherently moderate political representation against the drawbacks of our current system.

Q: Do we need to sit more with intellectual discomfort when dealing with these complex situations?

[Sir Geoffrey Nice KC]: This goes back to that question I raised when I say if Hamas had said we’ll do it again. If Hamas had said ‘that’s it, we’re doing no more’, Israel could (improbably/unrealistically) have done nothing. But it didn’t happen like that. Suppose -a ‘what if?” – suppose on the 7th and 8th of October Israel had said!

‘We’re not going to do anything; we will continue with Iron Dome. We’re not going to do anything for 2-3 months. We know that if we do anything in response, it’ll be so horrifying that thousands and thousands of innocent people as well as the guilty will be killed. So we’re going to do nothing. The United Nations has been highly critical of us over the years, we give you 3 months to sort this out.’

Now it’s a silly notion, it’s a silly as some of the other notions I’ve raised. But can you imagine how much credit Israel would get? There’s an interesting piece of music Stravinsky wrote called the Tale of the Soldier. It is a piece of music with 3 instruments which was designed to be taken around for low-cost performance. And in it – it’s all to do with the devil and a soldier. Eventually the soldier, if I’ve got it right, plays cards with the devil and ensures that he, the soldier, will lose. By ensuring that the devil wins, the solder wins. That’s how I understand it. But he makes the devil mad by losing, something like that. And it’s one of those great lessons. Sometimes you win by calculatedly giving away.

Q: What are the roles of truth & reconciliation commissions?

[Professor William A. Schabas] Truth and Reconciliation Commissions have gained popularity in recent decades, and I have personal experience with this, having served on the Sierra Leone Truth and Reconciliation Commission. We operated alongside an international criminal justice mechanism, offering a unique perspective. There’s a prevailing notion that international criminal justice prosecution is a cure-all solution, but that’s not entirely accurate.

While international criminal prosecution has become an increasingly important element, it’s part of a larger political and rhetorical landscape. However, it isn’t the complete solution for societies transitioning from conflict to peace and harmony, which is the ultimate goal. Even at the domestic level, criminal justice has its limitations. We acknowledge this when discussing crime rates; a robust criminal justice system is beneficial for addressing rising crime, but underlying social issues like unemployment and poverty must also be addressed.

Similarly, on the international stage, the crimes prosecuted are often part of broader conflicts with complex origins that require multifaceted solutions. While prosecuting a handful of perpetrators can have symbolic significance and contribute to long-term peace and stability, it is not the comprehensive answer. Different mechanisms are necessary to fully address these issues and move toward lasting peace.

[Vikas: How do you try and remain objective in such terrible cases?]

The resilience one shows in the face of confronting horrible and complex situations might stem from the belief in making a positive contribution. This belief can act as a shield against the difficult pressures that come with these challenges. I suspect that this sense of contributing, even in a modest way, helps individuals resist becoming overwhelmed or tormented by feelings of helplessness and frustration.

It’s a common speculation, especially among criminal lawyers, whether they become desensitized to terrible events over time. Are they hardened by repeated exposure, or does it stop affecting them after a while? I’m not entirely sure that’s the case. However, I do believe that the sense of making a constructive contribution, no matter how small, can provide a degree of insulation against the emotional toll these situations can exert. It’s less about becoming immune to the horrors and more about finding a purpose that mitigates the impact of these experiences.

Q: What does legacy mean to you?

[Sir Geoffrey Nice KC]: Reflecting on my career, I often feel a sense of personal failure, mainly because my path wasn’t driven by a clear sense of purpose. Instead, I found myself engaged almost accidentally doing interesting work, never pushing myself on to the next thing but rather waiting for it to turn up. Throughout my journey, I’ve harboured doubts about our (UK’s) legal system, questioning its efficacy and the justice it delivers. This skepticism intensified when I discovered that the ICTY (International Criminal Tribunal for the former Yugoslavia) used the same – adversarial – legal procedure that can, I feel, be flawed. The ICTY was also susceptible to significant political interference, something much more concerning.

The China and Uyghur Tribunals that I chaired allowed me to apply experience gained from earlier tribunals which had me to think that disinterested, non-specialist people could contribute significantly to global affairs by making legal/factual determinations that governments and international bodies were unwilling to make. These two tribunals have, I think, done just that although practical consequences in China of the tribunals is at best uncertain.

Nevertheless, one potential legacy I hope to leave is the idea that regular citizens can play a vital role in international matters. Another is to add to the general shift in focus for all accountability mechanisms for war crimes and state persecutions towards victims. This focus may deviate from traditional views where the citizen was treated as in the service of the law; the law has to be seen as in the a service of the citizen, a viewpoint not always popular among lawyers.

Regarding my time prosecuting Milosevic, my primary concern wasn’t his conviction but ensuring the process sought and obtained the right answers, encompassing various aspects including his personality development and external influences that shaped events. It was more about understanding the genesis of such situations and thinking about prevention strategies.

Reflecting on what might have been, I sometimes regret not pursuing politics more vigorously. After failing to enter parliament twice, I shifted my focus elsewhere, which, in hindsight, feels somewhat lacklustre. This introspection reveals a sense of missed opportunities and a belief that my true potential might have been in political engagement rather than along the paths I eventually took.

Your comment sparks a long-standing observation about the legal profession, particularly concerning international lawyers and their tendency towards conventional thinking. It’s true that lawyers, much like anyone else, are just people. However, their approach to problem-solving and innovation often seems constrained. Rarely do you hear radical ideas or discussions among those prosecuting cases in The Hague, and there’s a reason for this.

Being part of a legal system, as I was for 27 years before my stint in The Hague, tends to provide its own ‘internal’ set of objectives. As long as you operate efficiently within this system, there’s little incentive to look beyond its boundaries. This situation is akin to the mechanics at a local garage who service my aging car; they have their set routines and disciplines, which work well within their defined context. There’s no pressing need for them to step outside this framework, as it meets all their professional requirements and brings them proper, justified self-respect and satisfaction.

This mindset often prevails among lawyers, many of whom enter the profession for financial gain or prestige. Once within the legal system, they find themselves with sufficient goals and benchmarks of an existing structure, diminishing the need or desire to think beyond it. Venturing outside the established legal framework can be daunting, and so, many choose to remain within the comfortable confines of the system they know. This results in a profession that, while skilled and efficient within its universe, often lacks the impetus to engage in truly radical or innovative thinking.

Thought Economics

About the Author

Vikas Shah MBE DL is an entrepreneur, investor & philanthropist. He is CEO of Swiscot Group alongside being a venture-investor in a number of businesses internationally. He is a Non-Executive Board Member of the UK Government’s Department for Business, Energy & Industrial Strategy and a Non-Executive Director of the Solicitors Regulation Authority. Vikas was awarded an MBE for Services to Business and the Economy in Her Majesty the Queen’s 2018 New Year’s Honours List and in 2021 became a Deputy Lieutenant of the Greater Manchester Lieutenancy. He is an Honorary Professor of Business at The Alliance Business School, University of Manchester and Visiting Professors at the MIT Sloan Lisbon MBA.