The rules of war
Mark Campbell - August 27, 2014
This article was first published in the Spring 2014 issue of Dalhousie magazine.
Just months shy of his 50th birthday, William Fenrick (LLB’73) spent a few hours in the custody of Croatian Serb militia officers in the former Yugoslavia.
It was 1993, and Fenrick was in the crumbling nation investigating war crimes as a member of the United Nations Security Council Resolution 780 Commission of Experts. In this active war zone, Fenrick was witness to some of the most horrific acts imaginable, including mass killings. He was also at risk of injury, even death, during the intense ethnic conflict. Military commanders who didn’t want Fenrick and his colleagues to uncover the full extent of the atrocities they had committed also posed a real threat to the team’s safety, which is how he found himself in custody.
As hard as it is to fathom, Fenrick says he wasn’t worried for the most part. “We were going on sheer adrenaline. I don’t think many of us on the commission were afraid. Even so, the potential for something to happen was constantly on my mind.”
The former naval officer from Sault Ste. Marie, Ont., and the only investigator on the five-member commission with military experience, Fenrick was trying to determine if criminal cases could be developed against Bosnian Serb military commanders based on the atrocities the investigators uncovered—atrocities committed against Bosnian Muslims and Bosnian Croats. He not only wrote reports that paved the way for charges and convictions; he also helped prosecute those cases as senior legal advisor with the International Criminal Tribunal for the Former Yugoslavia in The Hague.
Fenrick also shaped how nations like Canada conduct war. He worked with his mentor, Leslie Green, a professor of law at the University of Alberta, to develop a manual on the law of armed conflict for Canada’s military. He negotiated treaties, drafted policies and served as the principal legal adviser to the National Defence Headquarters Crisis Team during the Gulf Conflict of 1990-91, ensuring Canadian troops conducted themselves in a humane way. And he helped take the unprecedented step of sending lawyers overseas with the troops. “I wanted to ensure our soldiers were fully instructed on the law related to combat.”
By the time Fenrick retired from the International Criminal Tribunal in 2004, he had not only helped to create the international humanitarian laws that govern combat, his efforts had helped make armed conflicts a little more humane. “Like many people, I probably would have joked that there could be no law in war,” says his son Michael (LLB’08). “But it has to do with maintaining the rule of law in the most dire, challenging and often hellish circumstances imaginable. My father’s work has gone some way toward making life better for people in the worst circumstances.”
The Ontario-born Fenrick had no real interest in law until he enrolled at Dalhousie’s Law School in 1970. The Royal Military College graduate, who served as a Royal Canadian Navy officer from 1967 to 1970, made the decision upon realizing his first academic love, history, was an overcrowded field. Law, he reasoned, was a more viable way to support his family. Yet it wasn’t until the October Crisis of that fall that Fenrick truly became passionate about law, specifically how states conduct themselves during emergencies. “When a state is under threat, what can it do legitimately? What controls can it impose? Can it bend the laws to stay together? That intrigued me.”
Equally intriguing was his work with the newly launched Dalhousie Legal Aid Service, as a member of the board of directors. “Our focus was on how you protect those who are most vulnerable, so it went hand in hand with my interest in law in crisis situations. Through my studies and involvement in Legal Aid, I was becoming more aware of social issues and the legal approaches to address them.”
Upon graduating, Fenrick joined the military’s Office of the Judge Advocate General (JAG), serving as a court martial prosecutor and defender for four years before moving to the Directorate of International Law at JAG’s Ottawa office. His work there—drafting the armed conflict manual and serving as principal legal adviser during the Gulf Conflict—made him the obvious choice for Canada’s nomination to the Commission of Experts investigating Yugoslavian war crimes. Though resources were limited and access to sites was often denied, Fenrick and his colleagues persisted, writing reports that led to charges and, later, convictions. “I thought I had the best job in the forces and one of the best jobs ever. And when they established the tribunal, I applied and spent the next 10 years helping to prosecute the cases I built.”
It is his work as senior legal adviser to the tribunal that Fenrick believes is his most important undertaking, mainly for demonstrating that military commanders could successfully be tried for combat offences.
“Before the tribunal, there was general agreement that attacks causing disproportionate civilian casualties, or attacks directed against civilians, were illegal by today’s standards. Yet no one knew how you could prosecute for such incidents. It was a lot of effort, but I think we developed some strong cases, achieved important decisions and produced some good laws.”
He elaborates further: “If you practice in a court in Halifax, you have a pretty good idea of the laws and your boundaries. International law is fuzzier. It’s hard to figure out the boundaries, but they do exist and you have to be clear on them so you don’t run wild. That’s my legacy: I helped clarify those boundaries and developed international humanitarian law by determining a realistic, workable approach to the legal issues we faced in prosecuting cases.”
Fenrick retired to Halifax in 2004 and spent a few years teaching seminars at Dalhousie on international humanitarian and criminal law. He continues to write and lecture on the topics, and is optimistic that there is now a foundation for a strong, sustainable international legal system. Still Fenrick cautions there is more work to be done.
“It took hundreds of years to develop Canada’s court system. We’re only at the early stages in international humanitarian law. There are those who see the glass being half empty. But I see it as half full. It will take time, but I believe we will make great strides. I’m glad I had the opportunity to contribute to it.”
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