Introduction: Just another instance of expert rule?

Abstract

Experts do not make law. A quick look into Article 38(1) of the International Court of Justice (ICJ) Statute reveals that expert manuals are not a source of international law. So why should there be a legal monograph on them? In view of this book, the apodictic statement that experts do not make law is as true as it is misleading. International groups of legal experts have developed ways to compensate for the lack of formal status and established their manuals as central reference points in international humanitarian law (IHL). 1 This has been considered 'a positive development'. 2 The following refutes this narrative.When the present author commenced his clerkship at the German Federal Ministry of Defense he saw the motivation for this book being confirmed: the Tallinn Manual 2.0 was prominently placed on the desk of his supervisor. The present book investigates the reasons for a manual of private experts having made its way into a governmental executive body. At the same time, it aims to show that expert manuals are problematic. They showcase larger shifts in IHL following technological, doctrinal and sociological developments. Drawing from a variety of perspectives, the goal is to shed light on the implications of these prominent, yet largely unquestioned, expert processes. Already their raison d'être of clarifying the law for practical purposes while only reflecting the law as it exists, is based on a false assumption: international law can hardly be restated without additions or modifications. This book will explain why the 1 The alternative term law of armed conflict is often associated with a traditional understanding of the laws of war, IHL with a modern approach. Generally, IHL appears more common among continental Europeans and law of armed conflict among Anglo-Americans. It boils down to a matter of taste and a question of which aspect of the law one wishes to emphasize. See also Schäfer, 'History of Division(s)' in Baade et al. (eds),