Lawfare as a Means of Defining Military Doctrine in the 21st Century, IDF as an example to the CDF in the Wake of the ITFY in the Hague
By dr. Peter Anthony Ercegovac
& Marinko Tomašić
Universal Jurisdiction and Interpol Warrants
An negative manifestation of lawfare includes the misuse of ‘universal jurisdiction’ by activist groups to invoke criminal suits against ex- politicians from the US and Israel – a poignant example being the UK warrant for former Israeli foreign minister Tzipi Livni over the Gaza assault towards the end of 2008.[1] ‘Universal jurisdiction’ allows domestic courts around the world to try ‘universal crimes’ (piracy, slavery, genocide, crimes against humanity, war crimes, torture) in the absence of the conventional ‘territorial or national nexus’.[2] Its practice becomes problematic when courts navigate beyond the customary definition of ‘universal crimes’ such as the Spanish inclusion of political groups among the classes of victims for genocide in order to enable a prosecution of former Chilean dictator Pinochet.[3] There is also the issue of disparate standards of due process because even though the authority to adjudicate the matter derives from international law, ‘the state would be using domestic laws and procedures to adjudicate the substance of international law’.[4] The other problem is that in most cases this involves one country seeking to extradite from a second country a national that belongs to a third country. Given the gravity of universal crimes, bail is rarely given and the extradition process may takes months of years. Even if the accused succeeds in demonstrating an abuse of process, they will have had significant dislocation to their lives which does not serve the cause of justice nor strengthen faith in international law as in the case of the Gotovina and Markač trials. However states whose citizens are subject to a universal jurisdictional court process are not powerless and have the ability to object at the world court if the substance of the universal crime deviates from the benchmark set by international treaties and related tribunal jurisprudence, such as Congo did forcing Belgium to release Congo’s minister for foreign affairs.[5]
Another avenue open to misuse is the Interpol system of international warrants. This was demonstrated by the arrest of Tihomir Purda in Bosnia Herzegovina on an international arrest warrant issue by Serbian war crimes prosecutors based on a confession extracted in a Serbian POW camp during a war characterised on the Serbian side by massive war crimes. Purda was later released after Serbian war crimes investigators found that the investigation had not met legal standards. The negative side-effects of such incidents include veterans fearing to travel overseas with the flow on effect on recruitment and defence force morale in future years to come as if this may occur to people who fought for their country whilst it was being attacked then who is to say what may happen to a professional soldier in a similar circumstance down the track. Indeed Purda is just one of a number of people who appear to have been targeted by Serbia through the interpol system which NGOs argue appears to be a strategy to redefine the regional narrative concerning responsibility for the wars in Bosnia and Croatia.[6] A narrative which has detuđiminisation at its heart as the goal is to place equal blame on Croatia for the occupation of her country by Serbia in attempt to create international parity in the interpretation of events. Incidentally, Purda was one of the group of former inmates of concentration camps in Serbia that form a class action group that is able to litigate against the Serbian state, again reinforcing the importance of lawfare.[7] This information should be taken into account as it is in the interest of the Serbian security community to defame litigants before their case gets to court.
Other examples include the cases of Ilija Jurić, Jovan Divljak and Ejup Ganić.[8] Kosovo political leaders likewise have faced episodic detention on the basis of an international arrest warrant issued by Serbia only to be subsequently to be released.[9] The Ganić case is instructive as Judge Workman detailed abuse of process by the Serbian war crimes office – a case of lawfare backfiring:
On the first day of this extended hearing I was satisfied that there was prima facie evidence of an abuse of process and as a result of that ruling evidence has now been adduced in relation to that issue. No evidence having been adduced to show a striking or substantial change in the evidence available to the ICTY or to Mr Alcock I have concluded that there is no valid justification for commencing proceedings against Dr Ganic . I am satisfied from the evidence of Mr Arnaut that during the course of these extradition proceedings attempts were made to use the proceedings as a lever to try to secure the Bosnian Governments approval to the Srebrenica Declaration. If indeed the Government was prepared not to pursue these extradition proceedings in return from Bosnian co-operation that in itself must be capable of amounting to an abuse of this process of this court. Some corroboration for Mr Arnaut’s evidence could be found in the unusual circumstances in which an application to vary conditions of bail was made to this court to enable Dr Ganic to return to Bosnia. It would appear that that application was founded upon attempts at diplomatic agreements. I am also satisfied that the descriptions in the request are as Dr Malcolm described significant misrepresentations. The combination of the two leads me to believe that these proceedings are brought and are being used for political purposes and as such amount to an abuse of the process of this court. (emphasis added) [10]
The case highlighted legal processes can be buffeted by the mechanics of international diplomacy, but also the importance of a robust domestic legal system in being prepared for rebuffing such foreign pressures. Dunlap notes that a robust legal system can significantly enhance national security and cites that ‘totalitarian societies which suppress liberty, along with the proper function of the rule of law, seldom achieve lasting battlefield success.’[11] If lawfare encourages opponents to use the courtroom instead of the military space, then it is a positive development in minimising human suffering and should be encouraged.[12] Indeed, Dunlap ruminates the hope ‘that military personnel would consider the law not just as a formal limitation and moral imperative, but also as an affirmatively useful- and very pragmatic- arrow in their quiver’.[13]
Lawfare, Propaganda and Evidence
Jus ad belllum governs when states may resort to force with this right codified in Article 51 of the Charter of the United Nations.[14] Jus in bellom qualifies how force may be applied in conflicts and its parameters include the legal requirements of necessity, proportionality and immediacy.[15]
The principle of distinction is defined in the Geneva Conventions Additional Protocol I in article 48 that requires parties to distinguish civilian and military population and objects and 52 which states that ‘Attacks shall be limited strictly to military objectives’.[16] Proportionality or ‘military necessity’ are captured by article 51 and 57 of Additional Protocol I which cover prohibition of incidental injury, loss of life of property to civilians that would be excessive in relation to military advantage, and taking all precautions in planning.[17] Whilst Additional Protocol I governs international conflicts, Additional Protocol II governs internal conflicts and in the Tadić appeal judgement, whilst it was held that the Bosnian conflict had both international and internal dimensions, Judge Li gave a separate opinion that stresses that not all the provisions governing international conflict applied to Additional Protocol II.[18] Ironically considering the nature of his decision, Judge Orie held that Operation Storm occurred as part of an international conflict.[19] Whilst knowledge of the statute and jurisprudence is important, it is the evidence and laws of evidence that is equally critical. With this in mind, the propaganda dimension cannot be underestimated as there is an asymmetry in the media that affects availability of evidence. Schmitt note this difficulty when he states that:
The media is a poor vehicle for conveying the balance between military necessity and humanitarian values that underpins the jus in bello. Consider the principle of proportionality. Destruction of civilian property and the deaths of civilians are easily depicted, and often quite spectacularly, on television. On the other hand, how do visual images capture the military advantage that rendered the collateral damage and incidental injury lawfully justified? Inevitably, the war the public watches is portrayed out of context.[20]
Compare this to the exaggerated claims as to life lost and property damage during Operation Storm, conceded by UN intelligence officer Phil Berikoff under cross-examination.[21] The international media and diplomatic space is an echo chamber where once allegations are made, it is very hard to redress the impression made. Ensuring a negative domino effect to occur when taking into account the image of an army, in this case the CDF. A negative image that can eventually easily be utilised by enemies of Croatia in future propaganda campaigns through various diplomatic channels.They influence perceptions and reports that become the standard narrative and consequently affect witness testimony and opinion evidence. Consider the reports of certain UNCRO officers of massive property destruction during Operation Storm– yet part of the evidence submitted included accounts of property damage that exceeded manyfold the number of properties in the village according to the 1991 census.[22]
There is also the risk of utopian jurisprudence where an exacting standard is applied that effectively outlaws war. An example is the Goldstone report on Israel’s incursion into Gaza found insufficient the most extensive warnings to a civilian population to date – approximately 165,000 telephone calls, the dropping of 2,500,000 leaflets, radio broadcasts.[23] A standard no army could realistically reach including ipso factum judgment of the Tuđman Govt and CDF in their efforts to forewarn ethnic Serbian civilians of the impending action of Operation Storm. There is the report by U.N. Special Rapporteur Phillip Alston with the suggestion that operators of remote predators must reveal to international scrutineers site specific information in order to determine the benchmarks of distinction and military necessity, yet this would allow insurgents to learn from such information and gradually blunt the effectiveness of such weapons systems.[24] Which in itself would halt the aimed military objectives of liberating one’s territory.
Whilst the term lawfare is relative new, the concept is not as demonstrated by the Soviet Union’s tradition of lawfare to bind other states in non-aggression pacts and thus supplement their military strategy by giving them predictability over the contested space. There is the use of lawfare as propaganda tools such as show trials of ‘enemies of the regime’ for which the various communist states were reknown.[25] Russia has pre-empted international criminal court by enacting the international law of aggression into its criminal code allowing it to try such cases both domestically.[26] Something Croatia’s political elite has not seen as necessary, with obvious consequences.
(Nastavit će se...)
[1] BBC News, ‘Israel fury at UK attempt to arrest Tzipi Livni’, BBC News (online) (15 December 2009) <http://news.bbc.co.uk/2/hi/middle_east/8413234.stm>.
[2] Anthony J.Colangelo, ‘The Legal Limits of Universal Jurisdiction’ 47 (2006-2007) Virginia Journal of International Law 149, 150.
[3] Ibid 156.
[4] Ibid 162.
[5] Ibid 182 citing Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v Belg.), 2002 I.C.J. 121 (Feb.14).
[6] Rory Gallivan, ‘Ganic Case Highlights Dispute Over Bosnia War’s Causes’ on Institute for War and Peace Reporting, International Justice – ICTY (20 September 2010) <http://iwpr.net/report-news/ganic-case-highlights-dispute-over-bosnia-wars-causes>.
[7] Professor Danijel Rehak, Putevima Pakla: kroz srpske koncentracijske logore 1991 … u 21. stoljece (Hrvatsko drustvo logorasa srpskih koncentracijskih logora, 2000), 495.
[8] Nenad Pejic, ‘In Serbia, It’s Time To Issue A Warrant For The Truth’ on Radio Free Europe / Radio Liberty, Commentary (4 March 2011) <http://www.rferl.org/content/pejic_bosnia_commentary/2328106.html>.
[9] Matthew Brunwasser, ’Bulgarian Court Frees Former Kosovo Leader’, New York Times (online) (26 June 2009) <http://www.nytimes.com/2009/06/27/world/europe/27kosovo.html>.
[10] Republic of Serbia v Ganic [2010] EW Misc 11 (EWMC) (27 July 2010) [39] (Judge Workman).
[11] Charles J. Dunlap, Jr., ‘Does Lawfare Need an Apologia?’ (2010) 43(1-2) Case Western Reserve Journal of International Law 121, 139.
[12] Michael Scharf and Elizabeth Andersen, assisted by Cox Center Fellows Effy Folberg, Michael Jacobson, & Katlyn Kraus, ‘Is Lawfare Worth Defining? Report of the Cleveland Experts Meeting’ (2010) 43(1-2) Case Western Reserve Journal of International Law 11, 24.
[13] Dunlap, above n14, 137.
[14] <http://www.un.org/en/documents/charter/chapter7.shtml>: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security’
[15] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, 103 (‘Nicaragua’); Nuclear Weapons [1996] ICJ Rep 226, 245; Oil Platforms (Iran v US) (Merits) [2003] ICJ Rep 161, 187. See also International Military Tribunal (Nuremberg), Judgment and Sentences, reprinted in Lawrence Egbert, ‘Judicial Decisions’ (1947) 41 American Journal of International Law 172, 219–23; Restatement (Third) of the Foreign Relations Law of the United States § 905 (1987) cited in Michael N. Schmitt, ‘21st Century Conflict: Can the Law Survive?’ 8(2) (2007) 443, 449.
[16] Additional Protocol I, art 48, 52(2).
[17] Additional Protocol I, art 51(5)(b), 57(2).
[18] Kristen Dorman, ‘Proportionality and Distinction in the International Criminal Tribunal for the former Yugoslavia’ (2005) 12 Australian International Law Journal 83, 87.
[19] Prosecutor v Gotovina et al (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-06-90-T 15 April 2011) 1693.
[20] Schmitt, above n30, 469,
[21] Goran Jungvirth, ‘UN Officer Witnessed Arson and Looting’ on Institute for War and Peace Reporting, International Justice – ICTY (5 September 2008) <http://iwpr.net/report-news/un-officer-witnessed-arson-and-looting>.
[22] Prosecutor v Gotovina et al (Gotovina Defence Final Trial Brief) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-06-90-T 15 April 2011) [456].
[23] Dunlap, above n16, 136 citing Michael N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50 Virginia Journal of International Law 795, 828.
[24] Ibid, 133.
[25] See the show trial of Aloysius Stepinac; <http://www.glas-koncila.hr/index.php?option=com_content&view=article&id=119&Itemid=122>.
[26] Christi Scott Bartman, ‘Lawfare And The Definition Of Aggression: What The Soviet Union And Russian Federation Can Teach Us’ (2010) 43(1-2) Case Western Reserve Journal of International Law 423, 445.