Kenneth Anderson on Who’s Writing the Laws of Armed Conflict

Kenneth Anderson has some thought-provoking comments on the evolution of the customary norms of armed conflict here, as part of a longer post on an article by David Rivkin and Lee Casey on the ICRC’s views. (I should state that, generally speaking, I find Rivkin and Casey’s essays to be quite unpersuasive and a little paranoid. This David Rivkin, by the way, is not to be confused with David Rivkin from Debevoise, one of the deans of international arbitration.)

The gist of Ken’s analysis is that those who aren’t really involved in extensive military deployments (European states and NGO’s) are particularly involved in defining the evolving customary norms on armed conflict although they don’t have a realistic appreciation of the modern realities of military necessity. I haven’t read the ICRC’s recently released three volume compendium on the customary international laws of war so I can’t comment directly on its substance. Ken’s critique, though, points out the ongoing problems of defining customary international law in a practicably workable fashion, an issue which every international lawyer of any political stripe should face head-on

Customary international law is a consistent practice by a relvant group of states based on a sense of legal obligation that becomes legally binding on all states that do not object to the norm. Ken’s post goes to the definitional issue of which states should be considered “relevant” states in defining a customary norm. A question I will simply leave open is whether the U.S. should essentially be considered an “indispensible party” for the evolution of customary norms of armed conflict as it has the largest international deployment of troops, etc. That is, if the U.S. doesn’t explicitly sign on, not only is it not bound by the alleged customary norm, but you can’t even really say such a norm has risen to the level of being customary international law (as you don’t have the relevant set of states practicing in this way). I don’t know if I agree with this idea, but I’ll toss it out as an idea and see if Julian, Peggy, Ken, or anyone else has any thoughts on this…

One other thing: Ken had spoken at the recent ASIL Annual Meeting and, if I remember correctly, he (or someone else on his panel) had made a related point to this post but about treaties, as opposed to customary international law: parties that tend to negotiate treaties on the laws of armed conflict tend not to be the one’s taht actually fight with each other. In other words, the Europeans and Americans coming to agreement on laws of armed conflict is all well and good but next war we fight is not likely to be with France, no matter how much they annoy us at times (and we, them).

This is a topic for another post, but it does lead one to think about how we can get the laws of armed conflict to evolve in this environment. For two takes on this, see Thomas Barnett’s essay in Wired and Martin van Creveld’s book, The Transformation of War.

Both observations, the one on customary law and the one on treaty law, are sobering thoughts and Anderson’s blog is well worth the read to learn more about law and war. At the heart of this is my belief that usable laws of armed conflict are needed now, more than ever. The question is whether and how they need to evolve to take into account the changing nature of conflict.