Law Promotion Beyond Law Talk: The Red Cross, Persuasion, and the Laws of War

• Published in: European journal of international law 2011-05, Vol.22 (2), p.459-506
• Main Author: Ratner, Steven R.
• Format: Article
• Language: English
• Subjects: Compliance; Ethics; HUMANITARIAN LAW; INTERNATIONAL LAW; International Organizations; Law; Legal arguments; Morality; Persuasion; Studies; Values; WAR; WAR CRIMES
• ISSN: 0938-5428; 1464-3596
• DOI: 10.1093/ejil/chr025

The International Committee of the Red Cross casts itself as both a unique protector of individual victims of war and a special guardian of the body of international humanitarian law. It manages and reconciles these two roles through a complex, unconventional strategy that includes secret communications with warring parties, ambiguity in conveying its legal views to them, and, at times, a complete avoidance of legal arguments when persuading actors to follow international rules. This modus operandi not only challenges some standard views about the methods used by actors seeking to convince law violators to comply with norms; it also opens the door to a richer theoretical understanding of legal argumentation in that process of persuasion. The resulting construct consists of a matrix of inputs that determine how a persuading entity will deploy legal arguments and outputs that convey the dimensions of the resulting argumentation. Both the theory and the ICRC's work suggest that entities concerned with compliance would often do best to settle for a target to act consistently with a norm rather than to internalize it. They also raise difficult moral questions about whether compliance with international law is the optimal goal if it has adverse consequences for the values an institution seeks to uphold.