As we struggle with the challenges posed by non-state actor participation in armed conflict it’s important to keep in mind who we hope to influence and the best way to do that. We have touched upon a number of ideas over the past two years, but not in a sustained way. Some have suggested that drafting a new protocol might be necessary in light of the current law’s insufficiencies. Some are more inclined to argue for a more modest reinterpretation of the laws of war – i.e. one more in synch with today’s realities. Perhaps we should propose draft principles -i.e., the adoption of the Princeton principles on universal jurisdiction: http://www.princeton.edu/pr/news/01/q3/0723-principles.htm. You are invited to share your thoughts on these suggestions or to offer one of your own.
October 3, 2008 at 3:57 pm
Let me try to reflect on Keli’s first question. Our goal should be to provoke an actual and intelligent discourse among the professional community about the legal ways to respond to the new type of war between a state and non state organization. Either way, amending the existing international conventions on the laws of war or by new interpretive approach, the professional community should be aware about our views and hopefully developing a discussion and debate.
I have tried to respond upon a wide spectrum of problems in connection with the struggle of a democracy against terrorism in my recent book published by Virginia University press, it might serve us as platform for more discussion among us. Since the publication of my book two years ago I have published several others articles in American law reviews and they also may add some materials for our discourse.
October 6, 2008 at 10:05 am
As someone new to NB/OL, I wanted to express my preference for a Princeton Principles approach.
This seems to me to be the best way for us as academics to influence the development of the law in this area.
My thinking is based on consideration of the following:
1.) The International Law Commission’s 1994 Draft Statute for an International Criminal Court (Draft Statute). While not adopted by states as a treaty and not law as such, the Draft Statute obviously played an important role as a baseline for the discussions between states that eventually resulted in the 1998 Rome Statute. NB/OL Principles could play a similar role among states, spurring on treaty drafting discussions.
2.) The International Law Commission’s 2001 Articles on Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility). Whether the Articles on State Responsibility will ever become a treaty remains to be seen, but particular provisions have already been referred to by the International Court of Justice as reflective of customary international law (for example, in Bosnia Genocide (2007)). Furthermore, even though they are not law as such, the Articles on State Responsibility have been referred to by courts as relevant for determining “what the law is” (see the British Institute of International and Comparative Law’s draft “Impact of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts,” http://www.biicl.org/files/3107_impactofthearticlesonstate_responsibilitypreliminarydraftfinal.pdf ).
NB/OL Principles, if given sufficient publicity — perhaps publication of them in the International Review of the Red Cross as Draft Principles in addition to their publication in a/the NB/OL publication, with chapters by academics reflecting on the Principles? — could spur on a treaty drafting process and, in the meantime, they could at least be drawn upon as “soft law.”
Would each of the principles also have corresponding commentaries? It seems to me that they definitely should.
Having said that, I’m skeptical that NB/OL Principles will significantly affect the decisions on the battlefield of asymmetric conflict given that civilians are already “fair game” for many of these groups, and not just regrettable “collateral damage.”
October 6, 2008 at 10:28 am
Thanks to Emmanuel and Robert for these comments. Emmanuel, could you provide links or, if not available, citations to the articles you believe will provide some guidance as we move forward?
I am inclined to share Robert’s preference for a Princeton Principles approach to our work product. Much work remains to be done for us to be able to offer a comprehensive Protocol, but Greg Rose has started us down that path. If we focus on this model, all of us can devote our efforts toward the Protocol and a necessary set of commentaries to accompany the draft. Seeking publication in the ICRC would provide a wide audience and would surely generate further discussion.
While Robert’s sketicism is understandable and fairly grounded in the real world, one of our overarching objectives has been to incentivize the buy-in to IHL to such an extent that the principle of distinction may be enhanced.