The Economist reports on restitution – sort of

by Rhodri C. Williams

This week’s Economist has an interesting article in the International section on “the accepted rules on what a conqueror can grab” in the wake of wars. The article sets the reader up with pretty low expectations by describing the Old Testament rules on plunder (grab all you can, essentially), and fast forwards several millenia to Kuwait Airlines’ successful suit against Iraq for damages in the first Gulf War. The article then summarizes the development of international humanitarian law rules against plunder, throws in an inconclusive aside on cultural property and ends on a sour note:

… there will always be victims of looting who could claim but lack the resources to do so. A glaring case is Congo, whose neighbours intervened and plundered in the chaos that followed Mobutu Sese Seko’s fall in 1997. Much of this was documented in UN reports. But in such places the ancient laws of war still apply.

The article bothered me a bit for a few reasons. First, it told only half of the story by describing a set of rules essentially meant to protect individuals and giving examples that had almost nothing to do with individuals. Its generally pretty well known that the emerging model of human rights reparations for individuals who suffered as a result of violations is struck from the well-established template of inter-state reparations for breaches of international law. International humanitarian law broke new ground in the 19th century by setting out protections states were obliged to afford to individuals. Human rights law amplified this trend half a century ago by requiring states to provide remedies to victims of violations. Now in the wake of the Cold War, guidelines like the Van Boven/Bassiouni Principles and jurisprudence like the International Court of Justice’s Advisory Opinion on the Israeli West Bank barrier have clarified that similar rules apply in all cases where states violate international law, whether the victim is another state or an individual: restitution, compensation, satisfaction, guarantees of non-repetition.

So while there clearly have been some interesting developments related to interstate responsibility and corporate claims for war damage, the rationale for some of the most novel developments in international law over the last century has been protection of individuals. By leaving out this element, the article misses one of the more significant post-Cold War developments in international law and humanitarian practice and ends up with just another indictment of international law as “nice if you can afford it”.

Which leads me to my second point. The article dripped with a characteristic Economist glibness that can be amusing when it is not aimed at one’s own particular field of interest. And, I suspect, for anyone with an interest in international law (warts and all), the Economist can often be a frustrating read. Its not that many of the accusations don’t stick. Clearly the fundamental tension between the legal fiction of the equality of all states and the reality of gross differentials in power and wealth is a pretty poor departure point. And at the national level, invocation of human rights, in particular, can be politicized or demonized or raise all kinds of expectations that can never be fulfilled. But its kind of lazy to stick to those critiques when there are so many more interesting issues currently being debated. And despite an ongoing sense that the Obama administration’s current foreign policies reflect a global migration from human rights to realpolitik (reported on in the NY Times here and posted on earlier here) its a bit early to give up on a concept that emerged virtually stillborn into the icy winds of the Cold War and toughed it out for four decades of malign neglect before blooming in the 1990s.

I suppose it is the job of reporters to be reductionist and that it only really bothers you when they are covering the few issues you may know a bit more about than them. However, it would be nice if one the readers of this blog were to actually write something a bit more coherent for the Economist on these issues someday – or at least a good stiff letter to the editor starting with “Sir!”.

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