Monday, April 11, 2005

Lee Casey and David Rivkin on the ICRC

Lee Casey and David Rivkin have an important new article out criticizing the International Committee of the Red Cross for what they see as bias in its treatment of the United States. It is in the National Interest, here. They urge the US government to take a harder look at the funds which the United States contributes to the ICRC, which are sizable - the "United States, through the State Department, is the ICRC's largest donor. In 2003 alone, the U.S. contribution was almost $200 million, or 34 percent."

I share many of the criticisms of the ICRC - I think the organization increasingly suffers from a desire to abandon its longtime, genuinely "above the fray" role and instead simply turn itself into another Euro-NGO. During the 1990s and up to today, I see a considerable amount of desire within the ICRC to have its cake and eat it too - a desire to benefit from the access and special privileges that go with being the neutral, special guardians of international humanitarian law, but at the same time, have the NGO activist coolness of nakedly advocacy, partisan, press-hungry organizations such as Human Rights Watch or Amnesty International. There is a marked tendency within the ICRC to want it both ways.

That said, the overwhelming majority of the US's $200 million goes to humanitarian relief of a kind that the ICRC is indiputably expert at providing. Moreover, Swiss rectitude in money matters is important quality all by itself - UN style corruption would, in my view, simply be unimaginable at the ICRC. I think it would be profoundly wrong of the United States to go after the aid which the ICRC uses in humanitarian relief, even while sharing Casey and Rivkin's irritation at the ICRC's 'wanting it both ways" behavior. The United States, in the interest of the people in the world served by the ICRC in utterly critical situations, should treat these as separate spheres and issues. There are ways to deal with the latter problems - starting with the question of access, and the US should explore them.

The essential problem here is not fundamentally the ICRC. It is that the debate and conversation over the rules of war has lost its element of reciprocity - those who propose to set the rules are no longer those who fight. The European states write many memos and hold many meetings on what the rules of war should be - but all they really mean by this is that they write many memos on how the US should behave. The ICRC participates in this charade by elevating mere statements, memos, resolutions, diplomatic statements, decisions of tribunals over actual state practice by states that fight wars while making serious efforts to obey the rules - i.e., the United States. The Western European states, Britain excepted, are really, in this matter of negotiating the rules of war, less like states than NGOs. They are free to propose any extravagant set of rules they feel like, knowing that it will never impede their military activities, because they have none. The United States, on the other hand, must continue to do what states traditionally have had to do in the rules of war - balance humanitarian requirements with military necessity. If you have no military necessities, you are not so much a state in these matters as an NGO; it costs you and your people nothing to impose rules on everyone else. The ICRC has bought into this model, and this will eventually bring - is bringing - an erosion of the legitimacy of the rules of war themselves.

Update, Tuesday, April 12, 2005. See also Casey and Rivkin in the April 11, 2005 Wall Street Journal Opinion Page, on the ICRC. That article deals more directly with the just released ICRC study on customary international humanitarian law.


mark said...


The Europeans are seeking to establish a new Rule-Set that would incapacitate the ability of the U.S. to project military power or use counterinsurgency tactics against 4GW opponents. Not the first time they have sought to use diplomacy to shield unconventional fighters under International Law

Regarding the issue of illegal combatants, it would seem that the Europeans would prefer to reward al Qaida terrorists who violate the Geneva Convention strictures on targeting combatants, uniforms and bearing arms openly - with POW status. Creating an incentive for al Qaida to commit further atrocities on civilian noncombatants and degrading the status of Geneva.

Scott Horton said...

With all respect to Ken, he's wrong in his suggestion that the authorities relied upon consist of UNHRC memos and his conclusion that the work is "immensely expansionary." This is a work of 5,000 pages, which entailed exhaustive global research; indeed, the Lieber Code gets a lot more citation than UNHRC materials. The work is intended to be a global survey. It's not intended to be a guide to litigation in the US courts. It collects an enormous volume of materials under restatement rule headings. The treatise writers are far from suggesting that the materials so collected constitute a definitive statement of CIL - rather they are nuggets which, when assembled together, permit some generalizations. My review of the book, which I have been studying for two months, will appear shortly in NYLJ. My recommendation to Ken is that he devote a bit more time to this work before passing comment.

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