I attended this provocative talk on Wikileaks and its effect on international law by an international law professor involved with ICTY and ICC. His argument was that the leaks, as when Arab Gulf states begged the United States to bomb Iran, are unilateral statements and as such can be sources of international law with respective consequences.
He then looked at how states perceived documents less than treaties. He said that the leaks or the content thereof are MOUs and then wondered if governments intend for such statements to be governed by international law. The ICJ has been recognizing them as such.
He stated that diplomatic assurances, of which the Wikileaks is full of, are politically binding agreements. This is where I think the Wikileaks has no good retort; these assurances allow governments to enter into agreements which if they were public would be unable to commit to as they might violate the (bad) laws or declared policies of the state, as when the US commits not to use the death penalty in order to try a criminal in its jurisdiction.
He then said that the special meaning of terms can be established in intergovernmental communications, but then I don’t see how leaking these documents helps in this regard as those same governments would have access to their own communications anyways, and use it if they need to.
An interesting statistic he quoted is that the word “law” is mentioned in 2,000 documents and comes at 92nd of all the words used, a very good placement which shows the real concern of these diplomats. And as a shocker, the word “rights”, as in human rights, is mentioned in more than 6,000 documents, coming at 21st place. As much as these numbers speak individually, the relative frequency of these two words also speaks plenty about the relative importance of the two. He pointed out to a changing attitude, especially among his students: what do you mean you can’t go in and save the people? The younger generation of international lawyers in training do not get that you can’t intervene for humanitarian purposes. Responsibility to protect for the win!
More importantly and to recapitulate the general arguments, Wikileaks can be used as evidence of customary international law. He used Kosovo as one example of this. On the issue of whether Kosovo is a state, he pointed out to leaked cables where Serb officials do not dispute the fact that Kosovo is independent and Serbia can’t get it back, and admit that they only want a piece of Kosovo in return for letting it go. I hope Kosovo officials make use of this argument when they are meeting with their counter-parties.
Another illustration was the gruesome helicopter attack video of US forces in Iraq, which was leaked before the embassy cables. He pointed out that for the most part the behavior of the soldiers was in accordance with international humanitarian law as the pilots are heard saying specifically “all he has to do is pick up a gun”.
It was his belief that newspapers might be giving Assange documents to leak so they can report on it. He suspects that the weekly meetings of The Guardian with Assange are used for this. Again, this might be the case in the UK, which does not protect leakers, but in the US the situation is much more favorable to the press.