Martha Finnemore (1999) notes that the 'humanitarian worldview asserts that individuals have status and worth independent of their relationship to states.' (152) This is true, but then what entity will protect the individual? The 'liberal' views of democracy and the market are based on the the idea of the individual. Is this dominant form of individualism different in times of war? This quote makes me think of Karl Polanyi (1944) and his view that the market is embedded in the social structures of the state, without this embeddedness social disintegration would occur. If the humanitarian worldview separates the individual from the state, who is to protect the individual? Currently there is not really an IGO or NGO strong enough to override a state.
Sarah Percy (2007) notes that one of the reasons anti-mercenary laws and other weak laws exist is that the legal language may at times be too precise: "[Vaughan] Lowe points out, state responsibility is a fundamental, primary norm, on which other norms are built. Tinkering with state responsibility for the sake of creating law on mercenaries would have disrupted the entire system of international law." (386) In some ways this quote strengthens my concern or discomfort with the quote from Finnemore. Yes the individual's rights should be respected, however, in states suffering from conflict, what mechanism should be put into place other than state structures to protect the individual? Finnemore does not present an alternative, she just notes the humanitarian worldview.
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theoretically, the ICC would watch out for the individuals in conflicts. the idea was to create a counterpart court for the ICJ that actually had regular legal standing for individuals. but I doubt it would take you long to recognize why it's not so simple, and why its really a moot point.
nevertheless, the lack of institutions to protect individual worth independent of state connection does not mean that such worth does not exist. finnemore (1998), herself suggests that norms study can lead policy change, and it seems now that she is supporting a human security agenda; by arguing that the worth exists, she is also arguing that policies be crafted to protect that worth. hence the movement towards creating the ICC. it all remains weak not because of the strictness of legal language, but because of politics. so, perhaps, the norm has arrived, but we simply have yet to put together an effective means of protecting it. as fatalistic as it sounds, this one might only need more time to get organized (and, potentially, some different political leadership)
I see what you are arguing. However, according to Percy and Lowe, the fundamental norm of the entire system is the state, upon which everything else is built. You mention the ICC and ICJ - however, they do not have the power to replace the state. My concern is that states want to maintain their power, which means that by removing the individual's welfare from the state, what else is there? I am not satisfied with the ICC or ICJ as a response. Could it not be possible the the weak and fragile states of the system need to be fortified through the vague concept of 'good governance' and more efficient rule of law?
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