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

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.

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Greg Fox
Greg Fox

I haven’t read Ken’s post, which I’m sure is worthwhile. But my first reaction to this argument is that recent US actions are not only contrary to the ICRC’s view of humanitarian law but long-standing practice of the US military. One only needs to peruse the US Army Field Manual on the Law of Land Warfare (27-10) to see that virtually all the rules it contains are taken directly from the Geneva Conventions and Hague Regulations. This, among other reasons, is why Colin Powell so adamantly opposed OLC’s arguments about not applying Geneva Law to the Afghan war — the US military has traditionally been one of the strongest proponents of strict adherence to humanitarian norms.

At another ASIL a former Navy JAG described how military lawyers were under virtual seige in the years after 9/11 from Pentagon civilians who saw humanitarian norms as bothersome obstacles. So before we set up an “US versus ICRC” dichotomy on who has authority to articulate humanitarian norms, we should ask ourselves who speaks for the US.

Chris Borgen
Chris Borgen


I agree with you that I think “U.S. versus ICRC” is not a useful dichotmoy to set up. And please note that I am in favor of the scrupulous enforcement of the norms to which we have already signed-on.

My question is more a going-forward issue. If the laws of armed conflict are evolving how can and should they evolve? How important is the U.S. as a party to this evolution? To what extent is the fact that the U.S. faces more legal (and military) exposure on these issues important in the role the U.S. plays in defining these norms?

My point is not that we can unilaterally opt-out of what we’ve already agreed to (the argument made by folks at OLC and elsewhere). We are bound by these rules and any such unilateral act is a breach. But what would the proper and most effective process be for writing new rules?