Commentary on the 2012 Grotius Lecture
Sadat, Leila Nadya, Proceedings of the Annual Meeting-American Society of International Law
The theme of today's Grotius Lecture is the importance of law in confronting the complexity of violence, and, more specifically, the role of international humanitarian law in confronting the complexity of armed conflict. In his masterful survey of the work of the ICRC, guardian of the Geneva Conventions, as well as the challenges it faces in carrying out its mandate, Dr. Kellenberger has suggested that three ideas should inform our efforts to address these complexities: (1) a commitment to reason and understanding; (2) a sense of vision that helps us understand where we would like to go and illuminates the path we must choose to get there; and (3) a commitment to our common humanity.
I cannot in the time allotted to me do justice to the breadth and depth of Dr. Kellenberger's lecture, but can perhaps suggest points for discussion as regards all three of these fundamental ideas and contextualize them further. As for reason, Dr. Kellenberger's remarks assume that law--legal rules and international institutions--can moderate the effects of violence in the world, whether that violence emerges from interstate conflicts, or, as is more commonly the case now, non-international armed conflicts with or without an extraterritorial element. I share this assumption and, because time is short, will not comment further upon it, other than to observe, as Dr. Kellenberger himself admits, that law alone is insufficient to restrain violence, and that increased emphasis must be placed upon prevention, education, and increased international cooperation and understanding if the suffering of humanity is to be alleviated. The power and effectiveness of international law has been hotly contested by scholars, at least in the United States. Yet it would seem a common-sense proposition that the inverse situation--a world without law--would be the kind of Hobbesian world in which life is nasty, brutish, and short, rather like the battlefield of Solferino in 1863 that Henry Dunant stumbled upon--and the kind of world that most of us would rather not inhabit.
As for humanity, Dr. Kellenberger's lecture quite fittingly evokes and renders homage to some of the European founders of international humanitarian law, whose ideas and writings have illuminated many dark corners of human behavior, and have continued salience today. Yet his remarks were perhaps too modest. The International Red Cross and Red Crescent movement is the world's largest humanitarian network, with more than 97 million volunteers, supporters, and staff in 186 countries, (1) The ICRC itself has more than 12,000 staff in 80 countries around the world. (2) From the earliest days of its founding by a group of five Genevan personalities that included Henry Dunant himself (author of A Memory of Solferino), the ICRC has embraced universality as a guiding principle, and has held many of its international conferences outside of Europe--in Istanbul, Manila, New Delhi, Teheran, and Tokyo, in addition to Geneva and Vienna. I am reminded of Judge Christopher Weeramantry's dissent in the Nuclear Weapons Advisory Opinion which observed that the concept of humanitarian law is neither a recent invention, nor the product of any one culture. It is, rather, of "ancient origin" with a lineage stretching back at least three millennia and deeply rooted in many cultures, including Hindu, Buddhist, Chinese, Christian, Islamic, Jewish and traditional African. (3)
As for vision, I would like to explore Dr. Kellenberger's invitation to adopt new norms to make international humanitarian law more complete and effective. As is characteristic of the ICRC's general approach, he has proposed important, but incremental, changes to enhance the effectiveness of international humanitarian law by filling gaps in the current regime. These suggested improvements involve establishing more and better rules on detention in non-international armed conflict and establishing more effective monitoring and compliance mechanisms specific to the needs of international humanitarian law which could be undertaken by someone or some entity other than the ICRC. …