Another ICRC issue - the new customary humanitarian law study

There is another matter related to the ICRC that needs also to be taken up - this is its new study of what constitutes customary international law, available online, here, or from Cambridge University Press.

The study has been released after years of preparation. The ICRC and the study's authors are making a round of universities and other venues - Chatham House, for example, in the UK - to present the study. It is a very long work, put together over years, and I am slowly going through it.

What I have understood of its methodology thus far - (only) 200 pages in so far - indicates that it is magnificent scholarship - if you accept all the stuff that the study takes as evidence of customary international law, of which I am highly skeptical. It includes, in particular, a vast amount of written material by such bodies as the UN Human Rights Commission, and states which have many opinions about war and its conduct but which never actually fight them, relying instead on the US security umbrella while seeking to tell the US how to fight. The premise seems to be that customary international law of war is established by he who writes the most and longest memos.

What I have read thus far is a long, long way from the canonical notion that customary law is established by state practice - what states actually do, and in particular what states actually do who engage in the activity in question - and opinio juris, the considered opinions of states as to what they consider to be legal obligations apart from the main body of international law obligation, treaties.

I will blog more on this subject as I read more - but, as always, the uncoordinated US government does not seem to understand that by saying nothing and allowing its response to drift with the wind over decades, it effectively ratifies the study's questionable views.

Moreover, the Bush administration does not understand that the central importance of this study is not about the actual conduct of US armed forces. It is instead about its use as evidence of customary international law by federal judges hearing Alien Tort Statute cases, which require as a predicate a violation of international law. This immensely expansionary work will make it much, much easier for a judge to conclude that there is a violation of non-treaty, customary international law - a violation of a kind that the US government might well reject as being part of international law. But the US will not have anywhere expressed its view. Where is the awareness of the US government of the ways in which this kind of material leaks across the bureaucratic lines of government?

(Update, Tuesday, May 24, 2005: I received a thoughtful email from Diogenes - I'm not sure where he/she blogs, and it hasn't yet been received as a comment here or at Opinio Juris, which has a related post by Peggy, here. Diogenes notes that I've read only 200 pages - well, now 300 - out of the what, four or five thousand total pages in the study - and that I should be careful about commenting. Fair enough, and I will spend much time over the summer going through the full text. And I will look forward to reading Diogenes' review of it in the New York Law Journal (s/he didn't say which issue, but I'll try to keep an eye out for it and reference it here. However, I did want to respond to one comment that does not require having read the entire study in order to comment - Diogenes says that the study was not intended as a commentary to be used in US court cases, such as Alien Tort Statute cases. Maybe that's right as far as the authors go - although I would be surprised if a lawyer as smart, savvy and connected as Louise Doswald-Beck was not perfectly aware of what it would be used for in the United States. Because I have had many conversations with people over the years about the study - NGO folks - who, once they got a sense of where things were going with the ICRC, made no bones about saying, "When is that ICRC study coming out? We need it for our ATS cases." (There was, to be sure, a period in which the unofficial NGO reaction from places like HRW was fear that it might tie their hands, but that passed as they figured out where it was headed.) Intended by the authors or by the ICRC for use in US courts or not - and I rather suspect that the ICRC knows perfectly well what effect it intends it to have in US litigation, whether ATS or Guantanamo habeas corpus or anything else - it will get used to strong effect in litigation, unless US courts take a bold and improbable step, in the absence of any coherent response by the US government, to restrict its application. It isn't really a matter of what was intended by the authors or the ICRC, but what the Center for Constitutional Rights thinks it can do with it, that matters. And that is irrespective of what the study says. In any case, I do think, even 300 pages in, that there is a strong observable tendency - and frankly undenied - in the study methodologically to privilege as sources things that are a long, long ways from state practice. This has been noted, too, by commentators already, such as some of the gently critical comments at the Chatham House meeting. But I will look forward to reading Diogenes' review.)