ICRC as Proxy in Customary International Humanitarian Law

Chris’s and Ken Anderson’s posts raise some fascinating questions about the ICRC and its recently promulgated rules of customary international humanitarian law. I agree with Ken that — even accepting as true ICRC’s bias against the US — Rivkin and and Casey go too far in suggesting that the US rethink its generous support of ICRC. ICRC does much more than simply report on compliance with laws of war. Their humanitarian operations in war zones and areas hit by natural disasters are effective, efficient and very much needed. Let me suggest that perhaps the ICRC has another role to play in coordinating the codification of rules governing war: that of proxy for non-state parties affected by war. Of course the US is the most active military in the world and what it knows of warfare and military necessity are relevant to defining emerging norms. But the rules are rules precisely to protect the least powerful actors from the most powerful. In the case of war, those are the individual civilians (and the NGOs that serve them) who find themselves displaced, homeless, vulnerable to exploitation, death by disease and other degradations. It is this constituency that needs the most protection — from state parties, insurgent groups, terrorists, etc. — during conflict. To use a very coarse analogy from the domestic context, we don’t let police forces — on their own — write the rules governing appropriate use of physical force during an arrest. We take into account what a police officer (taking into account available technology) would deem reasonable in light of the surrounding circumstances. But we don’t give them carte blanche.

But Ken and Chris raise a good question about CIL generally: can you claim “custom” out of treaties or protocols that one state, the largest and militarily most active state, has refused to sign? I agree with Ken that the rules of war have lost their element of reciprocity when custom can be declared from treaties without regard to the signatories. Part of the problem may be that modern warfare is much messier than the past. Fast-changing military and information technology blur the distinction between military and civilian targets, combatants and non-combatants, terrorists and insurgents, POWs and hostages. The customary laws governing warfare are by definition backward-looking, assessing the practice of parties in past conflicts to determine what the rules should be in future conflicts. But as Greg Fox points out, the US military much prefers these backward-looking rules and fitting them to new circumstances than no rules at all.