The ICRC's Little Book

The International Committee of the Red Collaborators Cross continues their campaign to dictate US policy: Red Cross codifies war rules, targets terror crimes.

The Red Cross has codified a set of rules on warfare aimed at making it easier to prosecute people who commit acts of terror and other crimes.

The code, which took a decade to draft, sets out the "customary rules of warfare" and is particularly intended to help bring to justice those combatants who commit crimes but may not belong to the army of any state.

While virtually all states have ratified the 1949 Geneva Convention, not all have ratified treaties dealing with such matters as internal conflicts and the code is aimed at helping plug the gap, Mr O'Brien said.

The code does not have to be ratified by any country but is intended to be used as a source of law to help prosecute combatants who commit offences. It "significantly strengthens the body of law" applicable to armed conflicts and especially civil wars, Mr O'Brien said.

"(This code) not only minimises the effect of non-ratification of treaty law by some states, it also addresses the applicability of humanitarian law to non-state actors," he said.

The new Red Cross code "is one of the most important documents on humanitarian law in warfare I've seen in my lifetime," said Francoise Hampson, a member of the UN Sub-Commission on Promotion and Protection of Human Rights. "It holds the individual responsible for their acts," he said.

"Any person not bound by treaty law is going to be bound by customary law."

Which is why a code is entirely unnecessary. Customary law, like case law, is the sum total of the the practices of the majority of civilized nations, and is regarded as binding law. Yes, the result is an amorphous blob, but the blob is exactly like British and American common law, since international law has always been and remains an Anglo construct. Exactly what the rules are isn't always crystal clear, but it has the major advantage of allowing for individual consideration on a case-by-case basis, in historical context and taking into account the totality of the circumstances.

This is the polar opposite of civil law, an anal retentive, counterproductive Continental invention that insists on writing down every rule and every exception in a little book, then robotically applying them to every situation, whether the result is just or not. This is exactly what the ICRC has done to the body of customary law -- but that's okay, because the ICRC is a mere NGO and has zero authority to promulgate binding law. Customary law already binds international actors, and doesn't need the ICRC's blessing.

What is of major concern here is that the ICRC is engaging in a bald grab at global lawmaking. In the current climate, where every anti-Anglo, anti-Semitic windbag with a law degree is treated like a global authority, the ICRC's posturing will probably be taken seriously. They haven't just codified existing customary law; they are attempting to transform unratified treaties into binding customary law. Treaties are just contracts between countries, and bind only the signatories. It's true that a few treaties have so many signatories that they have become customary law, binding even the holdouts (e.g., the Geneva Conventions). But less-widely accepted treaties still only bind the signatories (e.g., Kyoto); mowing down the opposition and making them universally applicable is the ICRC's goal.

In particular, "minimizing the effect of non-ratification" is aimed squarely at forcing the US to comply with the 1977 Protocol I to Geneva Convention III. As discussed previously, it is a highly controversial treaty to which the US is not a signatory, and it emphatically does not represent established practice or constitute customary law. Protocol I would extend POW protections to terrorists, guerillas, and insurgents; one such protection is the right not to be interrogated. An inability to interrogate captured terrorists would cripple coalition efforts, strengthen the terrorists' hand, get many more good guys killed, and practically hand victory to Al Qaeda. But "minimizing the effect of non-ratification" sounds so much nicer.

The ICRC apparently thinks it's not only a signatory to Protocol I, but the authoritative arbiter of its meaning and applicability, because this is also their basis for demanding access to all U.S. detainees. The very same customary and treaty law establishes that the ICRC's only role is in neutral humanitarian visits to POWs, not taking positions on who is a POW or what constitutes international law. They are EMTs, not a law-making, law-enforcing, or law-interpreting body, and I do hope Darth Bolton takes the opportunity to remind them that they are merely the hired help.