What makes for an expert in human rights? Someone who other human rights experts accept as an expert. To get in the game, you first have to speak the code and nod to Human Rights Watch and Amnesty International and other exciting utopian schemers making grand pronouncements about proportionality.
International humanitarian law is a 1990s construct created by utopians who needed an exciting cause that need not make any difference in the real world. The International Criminal Court, an impotent institution, is a great place for these dreamers to strut their stuff. Playing dress-up doesn’t have to end in childhood.
Professor Amanda Alexander writes in 2015:
This article questions the conventional histories of international humanitarian law, which view international humanitarian law as the heir to a long continuum of codes of warfare. It demonstrates instead that the term international humanitarian law first appeared in the 1970s, as the product of work done by various actors pursuing different ends. The new idea of an international humanitarian law was codified in the 1977 Additional Protocols to the Geneva Conventions. Nevertheless, many of the provisions of the Protocols remained vague and contested, and their status, together with the humanitarian vision of the law they outlined, was uncertain for some time. It was only at the end of the 20th century that international lawyers, following the lead of human rights organizations, declared Additional Protocol I to be authoritative and the law of war to be truly humanitarian. As such, this article concludes that international humanitarian law is not simply an ahistorical code, managed by states and promoted by the International Committee of the Red Cross. Rather, it is a relatively new and historically contingent field that has been created, shaped and dramatically reinterpreted by a variety of actors, both traditional and unconventional.
…. It was only at the very end of the 20th century that practitioners of international humanitarian law, following the example set by human rights organizations, suddenly accepted the authority of Additional Protocol I and, with it, a humanitarian vision of the ius in bello. This shift can be seen in both the newly confident use of the term ‘international humanitarian law’ to describe all of the laws of war and a renovated understanding of the content of this law – an understanding that is exemplified in the changing interpretation of the principle of proportionality.
…Prior to the 1960s, the term ‘international humanitarian law’ was not used to describe a field of law, and even when the term started to be used in the 1960s it still denoted quite a different understanding of the law to its current incarnation.
…the 1974 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, but its actual rules were contested throughout the Conference and continued to be questioned even after the Conference concluded. …the Diplomatic Conference was an unwieldy gathering, consisting of around 700 delegates.110 These delegates separated into conflicting factions, which expressed different views about what international humanitarian law was and should be. The background of the Yom Kippur War, the Vietnam War and the decolonization struggles shaped these views and lent them urgency. The Third World and, nominally, the Eastern Bloc thought international humanitarian law should protect guerrilla fighters and obstruct imperialist forces. The ICRC and most Western states hoped to recognize guerrillas and provide them
with a modicum of protection in order to encourage guerrillas to follow the laws of war, while still maintaining a clear distinction between combatant and civilian. Some states argued that the principle of discrimination should prohibit the use of certain modern weapons;113 others insisted that it could not do so. Many delegations, especially those from the Eastern Bloc and Third World, considered that international humanitarian law should not contain a principle of proportionality, claiming that it gave military commanders an unlimited right to decide to launch an attack if they thought there would be military advantage. In response, Australia, the United Kingdom and the USA argued that the principle of proportionality should be retained. States, they pointed out, were not going to abandon bombardment – all the law could reasonably hope to do was to govern it.…Guerrillas, who had previously been denied protection, could now qualify as combatants.123 Civilians were defined for the first time in Article 50 and given a raft of
unprecedented protection. In addition to the new codification of the principles of proportionality and discrimination, Protocol I demanded that precautions be taken to protect civilians, banned reprisals against civilians and civilian objects and prohibited the starvation of civilians, which had previously been allowed under the laws of war.…Many states refused to sign or, having signed, did not ratify Additional Protocol I. The list included India, Indonesia, Iran, Iraq, Israel, Malaysia, Morocco, Pakistan, the Philippines, Singapore, Sri Lanka, Sudan, Thailand, the USA, and the Soviet Union.131 Despite the optimism of the US delegation,132 President Ronald Reagan announced in 1987 that the USA would not ratify Additional Protocol I, describing it as ‘fundamentally and irreconcilably flawed’.
…described the Protocol as confusing, impracticable, inconsistent with the evolution of the laws of war and detrimental to the protection of civilians.139 The Protocol’s dual humanitarian aims of protecting civilians and non-traditional combatants, Parks claimed, were manifested in such an impractical way that it was unworkable and, ultimately, regressive. By blurring the distinction between civilian and combatant, the Protocol endangered civilians. It was also dangerous, Parks argued, because it moved the traditional onus for the protection of civilians from the defender, who should have control over civilians, to the attacker, who would not…
[Re the 1991 Gulf War]… It amounted to nothing more than a prohibition on the direct or negligent targeting of civilians.162 The US campaign, commentators agreed, satisfied this low threshold. Even the most distressing events, such as the destruction of the electricity system that resulted in hundreds of thousands of civilian deaths, were legal.
…Law, international lawyers felt in the early 1990s, could not prevent the horrors of war.166 All it really did was to legalize them…
The attention of the international legal community was focused instead on the ethnic conflicts in Yugoslavia and Rwanda and the attempts of the newly functional UN Security Council to respond to these events – authorizing peacekeeping operations aimed at helping beleaguered civilians, setting up ad hoc tribunals for Rwanda and Yugoslavia and beginning work towards an International Criminal Court.
These conflicts and the new tribunals changed the focus, the constitution and the sensibility of international legal scholarship. Suddenly, there was an institutional
environment established to enforce international humanitarian law. International humanitarian law was no longer just a ‘pseudo code’. Instead, it became seen as a real option for study, research and work – an exciting and tangible pursuit. A new cohort of academics entered international law and started producing a large body of literature. This literature was quite different to the sceptical and pessimist work of the early 1990s, which was dominated by military lawyers and a military perspective. The literature that emerged over the 1990s was developed by a larger group of academics and practitioners, often drawn to the field by humanitarian concerns. Their work was concerned with the victims of warfare and the crimes committed against them – crimes against humanity, crimes of sexual violence and genocide. The victims of landmines were also a high profile issue during these years.170 International lawyers, discussing these issues, employed a humanitarian vocabulary, which was appropriate in these contexts, and they were open to human rights values in a way that their predecessors were not…… Lawyers, almost without exception, would acknowledge that France, Turkey and the USA were not parties to the Protocol, but then they would simply state that the ‘provisions of the Protocol are universally accepted as customary international law and are binding authorities on all nations’. How did lawyers come to such a straightforward conclusion, which was so different to the debates that had taken place less than a decade earlier? A glance at their footnotes will reveal, almost without exception, a reference to HRW [Human Rights Watch] or Amnesty International.
Lawyers interpreted the principle of discrimination much more strictly; they narrowed the class of acceptable targets and permissible weaponry. As for proportionality, it was no longer considered a permissive principle. The NGO reports interpreted it strictly – more strictly even than the vague, pragmatic words of Article 51 would necessarily require. They stated that the principle of proportionality placed a duty on combatants to choose a means of attack that avoided or minimized damage to civilians. They also insisted that no military benefit could justify high amounts of civilian casualties. For lawyers adopting the NGOs’ approach, this meant that much of the campaign was judged to fail the test of proportionality. Aerial bombardment was disproportionate, any weaponry besides precision-guided munitions was disproportionate187 and the destruction of bridges or other infrastructure used by civilians was disproportionate. To all intents and purposes, any attack that did not put the protection of civilians ahead of military objectives was disproportionate.
…The fact that HRW’s interpretation of international humanitarian law was considered authoritative at the end of the 1990s, but not at the beginning of the decade, was largely due to the willingness of international lawyers and academics to accept and repeat their pronouncements. It has long been noted that academics have an unusually important role in the determination of international law…
…authority, the ability to discuss international humanitarian law and to be heard, can depend less on who speaks than on how they speak about the law. A sufficient grasp of legal language and conventions can allow a practitioner of international humanitarian law to intimate expertise and speak authoritatively about the field.
…A scientist, Thomas Kuhn wrote, could not work outside a paradigm and do science. It seems that an international lawyer must, similarly, conform to a paradigm for their work to be considered legitimate
