A unilateral law of war?

The nature of asymmetric warfare today means that the weak party systematically violates the rules of war - hostage taking and execution, deliberate commingling of military targets and civilians and civilian objects, deliberately putting your weapons in the mosque, use of human shields, etc. It does so as a method of war - like the rest of the terrorism canon, in military terms it is a logistical raiding strategy, aimed at the logistical soft target of civilian morale. Morale, after all, is a resource which is treated by terrorists as though it were a war materiel like any other. (I discuss this in more detail in an article from the April 13, 2003 NYT magazine, Who Owns the Rules of War?)

The strong party, in intelligence wars such as those in Iraq and Afghanistan and the war on terror, responds by sometimes abusing detainees as a way of seeking actionable intelligence.

The claim from (some of) the rights groups is that a revision of the laws of war is necessary in order to constrain the strong party; the claim of the rights groups is that no matter what the violations by the weaker party in its exploitation of violations of the war rules, it is the strong party whose behavior must be improved. There is no expectation, except the most pro forma platitudes about how everyone is obliged to obey the laws of war, that the weaker party will obey anything; the rules of war are functionally an obligation only of the stronger party.

I have serious doubts, however, that there can be an international law of war which is so completely asymmetrical in its expectations and results. It is not just a question of why the stronger party would bother to follow the rules when, as in the case of the United States, the reality is that its soldiers have been abused in nearly every conflict since the 1949 Geneva Conventions. The United States no longer has a serious expectation that the other side will follow the Geneva Conventions and laws and customs of war, and neither does anyone else.

What this raises is the question of why the United States should even support a treaty law of war. If the result is so thoroughly asymmetrical, and there isn't really an expectation that one's enemies will follow it, then why not simply unilaterally define what the US thinks the proper and humane treatment of the other side is in war, its civilians and its fighters, and enforce that? If there really is no expectation and no reality of reciprocity - and that is functionally the situation now - then why shouldn't an individual state simply define for itself how its standards of justice and morality and humanity should be applied and do it - since it can't, looking at the record, have an expectation that a reciprocally based treaty regime will be respected?

This will seem outrageous to some after the revelations of US abuse of detainees. It did not sit well, I imagine, when I said this at a discussion seminar on a paper by Christophe Girod, the former ICRC delegate to the US, (December 7, at the Swiss Foundation and Johns Hopkins School for Advanced International Studies). But the abuse of detainees inevitably will raise pressure for the United States to agree to some form of revision of the laws of war to take into account the intelligence war that is underway. In that case, the not-so-minor matter of whether the rules are regarded as reciprocal must be addressed. And since they are not, then the question of why a treaty regime at all may as well be on the table.

A unilateral law of war? I think it is a bad idea, for many reasons. But I also believe that the US may find itself both pushed and drifting that direction, because long term there cannot be an international law of war where there is no minimal reciprocity.