Summary execution

Abstract: On 10 September 1993 the Inter-American Court of Human Rights handed down its judgment on reparations in the matter of Aloeboetoe et al. v. Suriname.2 The events from which this wrongful death action arose occurred on 31 December 1987. In the presence of numerous witnesses, seven Saramaccan Maroon boatmen, including a fifteen year old boy, were detained by a squad of Surinamese soldiers in southern Suriname. The seven men were forced at gunpoint to lie on the ground, where military men proceeded to stomp and urinate upon them. Army members accused them of belonging to the Jungle Commando, a small band of rebels under the leadership of Ronnie Brunswijk, a former bodyguard of Surinamese strongman, Lt. Colonel Desi Bouterse. Although the seven victims denied belonging to the guerrilla operation and, indeed, had never been members of the group, they were blindfolded and forced into a military truck that carried them to a solitary place along a country road. Ordered down from the truck, the men were given shovels to dig their own graves. Richenel Voola, one of the prisoners, tried to run away but was brought down in a hail of gunfire. As Mr. Voola feigned death, he witnessed the summary execution of his six friends.

Abstract: The laws of war govern the weapons and tactics that belligerents may use against each other. This paper uses a model of conflict to explain and evaluate the laws of war. In the model a nation’s propensity to engage in conflict is a positive function of the effectiveness of military technology, and a negative function of the destructiveness of technology. Accordingly, in theory nations would want to agree to laws of war that permit destructive weapons and tactics but limit their effectiveness. However, nations with different endowments and resources will enjoy differential advantages, and this makes agreement on specific laws of war very difficult. The paper discusses empirical implications of the argument, and discusses whether the Hague Conventions are consistent with the model. The ancient Greeks fought many wars among themselves but also observed rules of battle. These rules prohibited summary execution of prisoners, attack on noncombatants, the pursuit of defeated opponents beyond a limited duration. and many other forms of warfare that are condemned to the present day. Josiah Ober argues that the Greek rules were intended to limit the violence of war, and he, like many other historians, take comfort in what seems like a natural human tendency to limit the brutality of war. A war in which prisoners are spared is surely more humane than a war in which they are executed. But another interpretation is possible. These “rules” could be descriptions of behavioral regularities rather than constraints on self-interested behavior. Prisoners are not usually executed but only because they have value as hostages and are often ransomed. Armies often spare noncombatants because they pose no immediate threat, they can provide supplies, information, and other services, and armies do not wish 1 Professor of Law, University of Chicago. Thanks to Jack Goldsmith, Rich Hynes, and Richard Posner, and especially to Ryan Goodman and Derek Jinks, for helpful comments, to The Sarah Scaife Foundation Fund and The Lynde and Harry Bradley Foundation Fund for financial support, and to David Kitchen for valuable research assistance. 2 Josiah Ober, Classical Greek Times, in The Laws of War 13 (Michael Howard, et al. eds. 1994). to give other civilians a reason for resistance. And any army that pursues a defeated opponent risks outrunning its supply lines and falling into disorder. Patterns of behavior that seem humane are not necessarily signs of humanity. The view shared by Ober and others mistakenly assumes that the military objective is always to slaughter as many people as possible, when it is more often to acquire territory and secure other resources, activities that often are best accomplished by treating civilians and even enemy soldiers with restraint. The optimistic view about the laws of war is shared by many scholars in the international law community. Although their interpretation of events in past wars is, like Ober’s, often superficial—the common claim that international law prevented most belligerents from using poison gas against combatants during World War II makes an unnecessary puzzle of nations’ willingness to violate many other laws during that war— the pessimistic view that the laws of war have no effect is also too strong. It has trouble explaining why states talk as though they recognized laws of war, and in the last century made repeated efforts to codify them and expand them in treaties and conventions. The Hague Peace Conferences of 1899 and 1907 were the first significant official effort to spell out the rules of war. These rules included a general prohibition on weapons that cause “unnecessary suffering,” as well as several more specific restrictions on the use of weapons and tactics. Subsequent conventions have dealt with biological and antipersonnel weapons, the treatment of prisoners of war, and the treatment of civilians at time of war. And even though the laws of war were widely disregarded during World War I and World War II, they have been the subject of extensive diplomatic negotiation since 1945. The optimistic and pessimistic views, as fleshed out in the literature, differ in their assumptions about the motivations of states and their interpretations of evidence. The pessimists assume that states act in their interest, and their interest is usually that of security and power. The optimists assume that while states act in their interest, they also internalize the humanitarian norms reflected by international law, and treat them as 3 See Geoffrey Best, Humanity in Warfare (1980); Geoffrey Best, War and Law Since 1945 (1994).

Abstract: When I arrived on the street in Port-au-Prince in early March of 2004, most of the city was still largely outside the control of the government. A rebel insurgency movement made up of former members of the now-disbanded Haitian army (Forces Armees d'Haiti, FADH) had successfully unseated President Jean-Bertrand Aristide who won re-election to office in 2000 amid opposition electoral boycotts, disputed results and accusations of fraud. With Aristide's resignation and exile to the Central African Republic and later South Africa, state paramilitary police forces have fanned out into the capital to hunt down armed supporters of Aristide's Fanmi Lavalas party. A concentrated rebel effort is now underway to reinstitute the FADH, with recruitment of new soldiers and their outfitting with new uniforms financed by wealthy families with an interest in restoring the preAristide status quo. Factions of heavily-armed Aristide loyalists calling themselves chimere1 are also on the offensive, and the city has descended into violent anarchy. The Haitian National Police (Police Nationale d'Haiti, PNH), routed by the rebels just about everywhere in the northern two thirds of the country, fire their weapons indiscriminately into civilian crowds, often in the most destitute of the capital's slum districts.2 Arson, riot, looting and summary execution have once again formed the lexicon of political conflict on the street. Vigilante bands and entrepreneur assassins roam the Port-au-Prince slums of Bel Air, Cite Soleil and La Saline with Uzis, semiautomatic handguns, combat-grade shotguns, assault rifles, bayonets, whips and machetes. Amid the chaos and a state of siege on the streets, and in the complete absence of legal authority, political scores are being settled alongside of personal animosities being avenged. Summary executions are being carried out on roadsides, the bodies littering the streets with single bullet holes through their foreheads. Dozens of others are being killed in less formal ways, their bodies machine-gunned, hacked to death, decapitated, mutilated and burned alive. Some victims of the conflict have been disembowelled, some strangled with their own underwear. There are rumours of a young girl from the militantly pro-Aristide Cite Soleil slum having been raped to death by rebels after the departure of Aristide. By October of 2004, pro-Aristide gangs had begun the systematic beheading of PNH officers killed in factional clashes under the rubric of "Operation Baghdad" (though unlike similar beheadings in Iraq, the decapitations are typically post-mortem and are not filmed). Haiti is not teetering on the brink of civil war, it is in the full throes of civil war. What else to call this protracted armed conflict among competing factions for control of state power? Many Haitians refer to it as loge (war) as often as they refer to it as la violenz (the violence). Much of the war is now being waged in Port-au-Prince, and it is not being fought around the civil society as much as it is being fought directly through it. At the time of this writing, there have been over 500 Haitians killed in factional clashes since the fighting began in earnest in late February 2004.While the government has periodically imposed curfews and urges residents of the capital to seek shelter indoors when shooting is heard, the truth of the matter is that when a bullet is fired in Port-au-Prince there is little difference between inside and outside; here, in the most volatile slums, most homes are made of cardboard and tin. Haiti's violent history of successive coups d'etat has shown how political conflict can become a civilian bloodbath when the fighting reaches the capital, even when people do stay indoors. There appears to be no end to the violence in sight. Though the rebel army had pledged to lay down their arms now that a Brazilian-led UN peacekeeping force has arrived to re-establish order, they have shown little real interest in doing so, even as the foreign troops conduct disarmament and policing operations throughout the country. …