In international humanitarian law and the law of armed conflict, there has been a large change—law is no longer based on practice, or what fighting countries actually do in wars, but it’s now based on what someone said in a speech, a professor said at an event put on by the Endowment for Middle East Truth.
Before, law “followed customary practices of actual armies in the field” … now there is a thinking that law “is as much the work of by standing states as participants”—we have shifted from a law grounded in practice to a law grounded in talking, said Jeremy Rabkin, a law professor from George Mason University.
An example of this, Rabkin said, is that the International Red Cross produced a 3-volume work to explain customary international law through documentation of what international leaders said in speeches.
The Red Cross writes “such comical things as: you must never harm civilian objects, property belonging to civilians,” Rabkin said. The proof of this custom was that Saddam Hussein said this during the war between Iraq and Iran, he added.
It does not matter if anyone lived up to it. All that mattered is that someone said it in a speech, Rabkin said.
Historically the understanding of law was based on the interaction of states, but “now the law is told to us by the International Red Cross, by Amnesty International and by Human Rights Watch,” Rabkin said.
“To have these organizations set themselves up as authorities on what the rules are” is a huge change and probably not helpful because they have no responsibility for what happens, he said.
While the United States has the U.S. Supreme Court “operating continuously for more than 200 years to tell us what the Constitution means, we have nothing like that in international law,” Rabkin said.
When talking about the law of armed conflict or international humanitarian law, people speak of situations being “against the law,” Rabkin said. The problem is that there is “almost no central authorities that can tell us what humanitarian international law requires,” he said.
The international community does have systems like the International Court of Justice and the International Criminal Court, but, Rabkin said, “the International Court of Justice … requires the consent of both states … and they [states] hardly ever consent when it is something controversial, like how we fight a war.” Because of this, the court makes almost no decisions about those controversial topics, he said
In terms of the International Criminal Court, Rabkin said, “it [the International Criminal Court] started four cases, and it hasn’t finished any of them.” It’s in its infancy and highly controversial—many of the countries actually involved in conflicts are not even parties to it, he added.
Throughout history, the understanding of law was that there are rules which “operate with the consent of states and are contingent on the continuing honoring of these rules by states,” Rabkin said. For example, a time-honored aspect of the rule of war was reprisal, which means, “If one state violates the rules, the other state is authorized, lawfully, to do something which would otherwise be unlawful,” he added.
They were “rules between organized armies, [who] were capable of holding these rules” and enforcing them, Rabkin said.
Now states are talking as if the same rules apply to developed states and developing states, he said.
The world is changing and states must take into consideration that “there are differences between countries with organized militaries and some capacity to maintain rules and guerillas who don’t even pretend they are going to adhere to these rules,” Rabkin said.
This is the first time in history we are talking as if “the same rules apply to everyone” – this is a large change, and the change makes it difficult to maintain rules because there is no reciprocity, Rabkin said.