Monday, April 11, 2005

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.

9 Comments:

Anonymous Greg Fox said...

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.

4/12/2005 9:35 AM  
Blogger Chris Borgen said...

Greg:

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?

4/12/2005 11:31 AM  
Blogger ghkj said...

Day night,gold für wow the moon or on world of warcraft gold the tree,cheap wow gold Hao Jie pouring down the moonlight, as if accompanied by Xiaotu Feifei enter sweet dreams. In the dream, a dream Feifei about his sister to the moon night. Will open the door,wow gold kaufen go down the moon sister.mesos Xiaochanzouxia take is that they did not see the moon sister. At that time, anchored at the tree on the moon sister saw Xiaochan, they yelled loudly: "Feifei, Feifei, I tree, the tree, I." Xiaochan sit at the moon to his sister, who Daizhaoxiaochan came wow geld to the beautiful pond. Only, water,maple story mesos everywhere in the lush leaves and beautiful flowers.maple story items A frog squatting lotus leaf, see Xiaochan, surprised and said: "Xiaochan,wow gold farmen you can even sit on the moon. You simply It's amazing!maple story money I am sure that you are the first animals to the moon by the animal. good,wow leveling I envy you!Maple Story Accounts "Xiaotu listening, happy to smile. Then, with the moon sister Xiaotu to its home.powerlevel Only, the moon sister's home stars are everywhere. The eyes of a star a Zha Zha,world of warcraft power leveling like Xiaotu greeted the arrival of a mouth, like: "Xiaochan, Hello, we at the Moon Palace waiting for your arrival."maple story powerleveling Xiaotu listened

2/03/2009 11:43 PM  
Blogger Buy WOW Gold said...

Thank you for sharing. Glad to see you.It is really a good post.Buy RS Gold

12/19/2011 8:32 PM  
Blogger beautifuls said...

Buy Cheap Fluro Cambridge Satchel Cambridge Satchel Fluro Fluro Yellow Cambridge Satchel Fluro Pink Cambridge Satchel Cambridge Satchel Fluro Yellow Cambridge Satchel Fluro Pink with lower price and high quality.

2/22/2012 4:10 AM  
Blogger ninest123 Ninest said...

ninest123 08.04
oakley sunglasses, nike air max, michael kors outlet, prada outlet, tiffany jewelry, louboutin shoes, nike outlet, michael kors outlet online, kate spade outlet, tiffany jewelry, burberry factory outlet, oakley sunglasses, coach outlet, michael kors outlet online, michael kors handbags, longchamp outlet, chanel handbags, michael kors, nike air max, kate spade, coach purses, nike free, replica watches, cheap jordans, ray ban sunglasses, prada handbags, louboutin uk, gucci handbags, burberry outlet, michael kors outlet store, true religion outlet, ralph lauren polo, ray ban sunglasses, coach outlet, coach outlet store online, oakley sunglasses, longchamp outlet, christian louboutin, christian louboutin, ralph lauren outlet, tory burch outlet, longchamp bags

8/03/2015 9:56 PM  
Blogger ninest123 Ninest said...

nike air force, jordan pas cher, vans pas cher, abercrombie and fitch UK, vanessa bruno pas cher, nike blazer pas cher, nike air max, true religion outlet, polo lacoste pas cher, michael kors uk, nike air max pas cher, lunette ray ban pas cher, north face pas cher, louboutin pas cher, longchamp soldes, michael kors, hermes pas cher, converse, nike air max uk, nike air max uk, nike free, polo ralph lauren uk, burberry pas cher, longchamp pas cher, nike free pas cher, nike roshe run pas cher, north face uk, mulberry uk, lululemon outlet, hollister uk, michael kors outlet online, true religion outlet, timberland pas cher, nike tn pas cher, ray ban uk, lunette oakley pas cher, hogan sito ufficiale, new balance, sac guess pas cher, true religion jeans, abercrombie and fitch, ralph lauren pas cher

8/03/2015 9:58 PM  
Blogger ninest123 Ninest said...

beats by dre, babyliss pro, nike roshe run, hollister clothing, abercrombie, mcm handbags, p90x workout, nike trainers uk, wedding dresses, softball bats, timberland boots, insanity workout, nike air huarache, instyler ionic styler, herve leger, lululemon outlet, north face outlet, asics running shoes, new balance shoes, valentino shoes, mac cosmetics, chi flat iron, hermes handbags, iphone 6 cases, nfl jerseys, nike air max, soccer jerseys, soccer shoes, celine handbags, nike roshe uk, oakley, reebok outlet, salvatore ferragamo, north face outlet, giuseppe zanotti, abercrombie and fitch, ghd hair, mont blanc, vans outlet, bottega veneta, jimmy choo outlet, longchamp uk

8/03/2015 10:00 PM  
Blogger ninest123 Ninest said...

coach outlet, pandora jewelry, ugg,uggs,uggs canada, hollister, pandora uk, converse shoes outlet, ugg,ugg australia,ugg italia, pandora charms, vans scarpe, ray ban, toms shoes, ugg pas cher, gucci, bottes ugg pas cher, uggs on sale, converse, replica watches, swarovski jewelry, thomas sabo uk, uggs on sale, wedding dresses uk, uggs outlet, supra shoes, marc jacobs, uggs on sale, juicy couture outlet, links of london uk, louboutin, ugg uk, juicy couture outlet, polo ralph lauren, hollister, montre pas cher, karen millen uk, lancel, swarovski uk, nike air max, uggs outlet
ninest123 08.04

8/03/2015 10:01 PM  

Post a Comment

<< Home