Who Owns the Rules of War in Today's Post-Post-Cold War?

Authors

Kenneth Anderson, American University Washington College of LawFollow

Document Type

Article

Publication Date

2019

Journal

Houston Law Review

Volume

56

Issue

4

Abstract

Professor Gabriella Blum's The Paradox of Power observes that international humanitarian law (IHL) has been in a long. term evolution toward putting the principle of "humanitarianism" and civilian protection at its normative and legal center. The Lecture (on which this essay is a commentary) identifies several reasons for this, in particular (within and across liberal democratic societies) social acceptance of IHL as law but also as socially internalized norms that give IHL broad moral legitimacy. Accepting The Paradox of Power's main propositions as cor rect, this Commentary extends its account in several ways. First, The Paradox of Power's combination of norms, law, and legitimacy can be understood as constituting (at least in the case of liberal democratic societies) not just an "ethics of war," but a "public ethics of war"-a "public" ethics being necessary for a liberal demo. cratic state to sustain public legitimacy in fighting a conflict. Sec. ond, the question can be posed whether the long-run trend toward putting civilian protection at the center of IHL is likely to continue. International politics appears to be shifting from the post- Cold War to a "post-post-Cold War" whose features include a resurgence of Great Power geopolitics, particularly Russia and China challenging the political status quo long underwritten by the United States, and the resurgence of claims-again particularly by Russia and China-for sovereignty and its prerogatives in international law and politics, in ways thought by many to have been in decline since 1990. These developments raise questions as to what these and other sovereigns regard as the substance of IHL as it emerged in the post-Cold War. From the standpoint of the evolution of IHL, there are reasons to question whether the processes by which IHL has been made and evolved from 1990 forward, as well as whether non-sovereign actors, such as NGOs, that have played an important role in debates over the evolution of IHL can, will, or should continue in this way. In a post-post-Cold War characterized by increased risks of interstate Great Power war and by a possible resurgence of strong claims that sovereigns, through their sovereign consent, make international law, including IHL, an increasingly important question runs to the actors and processes by which IHL evolves. This is to ask, in the post-post-Cold War, "who owns the rules of war"?

Recommended Citation

Kenneth Anderson, Who Owns the Rules of War in Today's Post-Post-Cold War?, 56 Houston Law Review (2019).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/1145