Monday, April 09, 2007

US government offers opinio juris responding to ICRC customary law study

One criticism I made of the US government when I discussed the ICRC customary law study and its methodology back in 2005, here, was that the US never seemed to be able to pull itself together administratively or bureaucratically to be able to respond in the sense of formal opinio juris to such offerings as the ICRC study - even though anyone knowledgeable in the area would know that the US would of course have strong objections to at least some of the substantive conclusions and important parts of the general methdology. I am happy to see that the US has moved to offer formal opinio juris on the ICRC study, in the form of a joint letter from the State Department Legal Advisor, John Bellinger, and the Department of Defense General Counsel, Jim Haynes, formally stating the US view of the study.

Here is a link to an American Forces Press Service article summarizing. The 27 page letter can be found in pdf here.

(PS. I've now had a chance to read the US government letter closely. I think it is outstanding - clear in its statement of what the US agrees and disagrees with, measured and reasoned in tone, and very well researched. My congratulations to all the US government lawyers and staff who worked on this letter. My congratulations to John Bellinger and Jim Haynes for persevering on a project that on the one hand is very important but might never seem to have immediate necessity to be high on the "today" list. I have actually read the entire customary law study - I mean I have read the entire thing, because I (still) have plans to write a review essay one day and I think a reviewer has to be able to say that he or she read the entire dang thing, word for word, whether a short book or a long book. It took me a very, very long time, and I don't gamble on my retention - it is, after all, a reference work, although reading the study in its entirety has given me, I think, a pretty good idea of the work's underlying methodology. When I say I think the US government has written a good response, I mean it and know pretty well exactly what I mean.)

(PPS. One thing I don't understand is the date of the letter. The letter is dated November 3, 2006. I am not inside anyone's special loops on these things, and I only became aware of it when I noticed the Defense Department news article from March 2007. Maybe the letter was only released publicly in March 2007? I don't know. Maybe everyone else knew about this letter back in November 2006 and I'm just very, very slow.)

Update, May 9, 2007. A friend tells me that the letter was held from public release for a few months as a courtesy to give the ICRC a chance to consider it privately. Also, here is an excellent post on the same from Duncan Hollis over at Opinio Juris - see the comments as well. And i blogged earlier about this new article by Leah Nicholls on the ICRC study, here.)


ump3s said...


International said...

It may be of interest of you to note that a course on the Advanced Law of War at the US Army JAG School has regularly been inviting students to critique discrete sections of the ICRC volumes. I wrote a piece on the rules relating to displaced persons, and I know that many others also offered up assessments.