Humanitarian law and politics: two sides of the same coin
Controversies over the arrest warrant for Netanyahu by the International Criminal Court force me to explain myself.
In a recent opinion piece, I argued that the protection of civilians is ultimately a political problem, and that politicians and diplomats should not merely rest on International Humanitarian Law (IHL) for addressing it. My argument was motivated by the reliance of IHL on the political commitment of major powers and the need to appeal to their self-interest when regulating warfare. I now realise that this came out wrong. It can be read as if I think there is a conflict between politics and the law in this respect – which was the opposite of my intention. And it could be mistaken as criticism of the International Criminal Court (ICC) for alienating Russia and the US over arrest warrants for Putin and Netanyahu – which is contrary to my intention.
My point was that IHL relies on continuous political engagement for being upheld – not that the designated institutions, treaties and lawyers maintaining IHL are in the way of doing so. The ICC, International Court of Justice (ICJ) and International Committee of the Red Cross (ICRC) are obviously essential parts of the solution and in no way part of the problem. For instance, the ICJ has laid a crucial foundation for political as well as legal debate on the war in Gaza with its Advisory Opinion from July this year.
My concern was rather that one should not conclude that states like Russia and the US do not care about IHL at all when violating it themselves or vetoing resolutions against others for doing so. This idea could create an unfortunate dynamic where the political reasons for their decisions are turned into a question of being for or against IHL as such. In that case, they might be pushed to take a generic stance against IHL because they sometimes see it as conflicting with their political interests. The problem with this approach is not the insistence on IHL but that it ignores how the interests of states – including the veto powers – align with IHL most of the time. This is why they rather tend not to comment when disregarding IHL or insist that their critics are wrong.
Indeed, the tendency of certain states to stretch the rules of warfare beyond recognition instead of openly breaking them is both a symptom of their generic commitment to IHL and of its political complications. As maintained in the 2024 Challenges Report from the ICRC (p. 38): ‘As parties to armed conflicts interpret IHL principles and rules with increasing elasticity, they set a dangerous precedent, which will have tragic consequences for everyone.’ In addition to legal responses to this problem, it warrants political incentives for adjusting their course – and not only through moralising condemnation. Economic sanctions are only one of the instruments for doing so – there are multiple ways of making states pay for violations and award compliance, including policies of defence, trade and aid. My worry is that this art of diplomacy for upholding IHL is replaced by a reliance on the legal system alone – resulting from a post-Cold War order that is now gone.
Faced with the existential risk of war between major powers, the worst that could happen at this moment is to weaken their general commitment to IHL. Consistent efforts at upholding IHL through legal instruments like the ICC is not a hindrance but a premise for this to happen. Yet, doing so requires active political and diplomatic efforts that take their interests into account when addressing their violations. Appealing to moral ideals alone is insufficient. As I wrote in my previous post, the diplomatic negotiations on the Geneva Conventions after WW2 can be taken as a source of inspiration in this respect.
In this spirit, the ICRC has summoned states to a global initiative to galvanise political commitment to IHL, in collaboration with Brazil, China, France, Jordan, Kazakhstan and South Africa. Working towards a high-level meeting in 2026, the aim is ‘to strengthen the universal, uniform, and faithful application and implementation of IHL’. The anchoring in major states with strong ties to Russia and the US rather than in multilateral organisations and civil society only, indicates that this initiative can find the right balance between interests and ideals in pursuit of this goal.
Opening law for the pandoras box of politics is obviously scary, but keeping the lid on is not really an option provided the reliance of compliance on political commitment. Meanwhile, the law is not reducible to politics either – the system of international law has evolved throughout centuries and returned with a vengeance after each World War. It has an inner political logic that is also manifest in IHL, and has been institutionalised to withstand political pressure and deviations.
In this situation, a blog post that divides these two sides of the same coin – the law and the politics of the protection of civilians – and leaves the legal side behind would be rather unhelpful. My message was that we need to remember that the IHL side of the coin has a political counterpart.
Martti Koskenniemi uses the analogy of the ‘duck-rabbit illusion’ when making this point about the inner relation between law and politics in general. I can think of no better – or more entertaining – way of leaving this text than watching this lecture of his from 11:00 minutes onwards.
You can read the previous piece by Lidén here.
Kristoffer Lidén is a Research Director at the Peace Research Institute Oslo (PRIO) working on the ethics of international affairs. This text relates to an ongoing project on humanitarian negotiations and his previous research on the protection of civilians.
Photo by Czapp Árpád
