More on the ICRC and Customary International Humanitarian Law

Ken Anderson has two posts on the ICRC today: this one addressing the criticism of ICRC in today’s WSJ and this one on the ICRC CIHL study, which I mentioned in an earlier post. On the WSJ editorial, I think it — like the Rifkin and Casey article in National Interest last month — goes a bit too far by indicting the entire organization for what appear to be breaches in confidentiality by some ICRC observers. The problem for ICRC is that it does, in fact, do best when it operates with very little publicity in the US and European press about its important role in humanitarian operations. But the demands for funding and building support for its mission make it attractive (because it is so popular in Europe) to engage in public “tough talk” against the US. Ken notes:

The ICRC will never be as clever, as nimble, as media-savvy and connected, as … well, cool as those organizations [Amnesty international and Human Rights Watch]. It will, however, save a lot of lives, over decades and indeed centuries, if it can resist the temptation to fashionableness. Problem is, alas, on current evidence, it is not resisting at all.

On the CIHL front, however, ICRC is making an impressive PR effort. I have to confess to have read only the executive summary of the voluminous study, but Ken raises an interesting point about the potential applicability of the study of future Alien Tort Cliams Act cases, a point apparently lost on the critics of the study in the US government, which so far have focused on its impact on US military rules of engagement. Hays Parks’ (DoD General Counsel’s office) talk at the ASIL annual meeting, for example, centered on the conflicts between the study and US military practices. (I raised the possibility that the study might also be used by defendants in Guantanamo hearings here.) The timing might not be great for the US to get into a full-blown conflict with ICRC on these IHL issues — particularly if it fears (or knows) that some at ICRC headquarters are willing to leak details of abuse by US military personnel in Guantanamo and other detention centers. But as Ken points out, the US will have lost a lot of ground to what will be viewed by future courts as the definitive study of CIHL if it does not go head-to-head with ICRC on its law-making exercise.