Wednesday, July 12, 2006

Justice Kennedy's reference to the ICRC customary international law study in Hamdan

A small detail from the Hamdan case. I have posted in the past on the Customary International Humanitarian Law study commissioned by the ICRC, and I have also posted a very useful (and, I see looking at site statistics, much consulted) response to some of my comments by one of the study's two authors, Jean-Marie Henkaerts.

One comment I have made about the study is that although the US government has never endorsed the study's findings and certainly has strong disagreements with signficant parts of its conclusions and reasoning, I anticipate that it will be widely cited as an authoritative statement on customary international law in US courts. I was therefore interested to note, as a sidelight, that this practice has begun with Hamdan, in which Justice Kennedy cites the study for the meaning of judicial procedures under Common Article Three:

"Common Article 3's standard of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," ibid., supports, at the least, a uniformity principle similar to that codified in §836(b). The concept of a "regularly constituted court" providing "indispensable" judicial guarantees requires consideration of the system of justice under which the commission is established, though no doubt certain minimum standards are applicable. See ante, at 69-70; 1 Int'l Committee of the Red Cross, Customary International Humanitarian Law 355 (2005) (explaining that courts are "regularly constituted" under Common Article 3 if they are "established and organised in accordance with the laws and procedures already in force in a country")." (emphasis added)

I have no quarrel with the substance of the view cited - my concern is that the study, precisely because it is extremely well written and well organized, provides judges with a handbook that appears to carry the same authority as the classic Restatements. It is no aspersion on the study to note, however, that this is not the same as having been accepted by the US government as authoritative. I do not think Justice Kennedy has done well by citing, even for an innocuous proposition, a study that, for one thing, is not, as his citation form suggests, precisely the views of the ICRC as such (the preface specifically says it is an academic study under individual authoriship) and, for another, has not been accepted by the United States as an authoritative expression. Of course he is free to cite it - but he should note the limitations thereof.

Look for the study to become the Alien Tort Statute plaintiff's new best friend.


Andrewdb said...

Have you considered submitting a corection to the form of citation to the USSC Reporter of Decisions? Your point is well taken that this is not an official ICRC position document.

Marty Lederman said...

Ken: You stress that the ICRC interpretation "has not been accepted by the United States [elsewhere you say "United States government"] as an authoritative expression [of the laws of war]."

What's Justice Kennedy and the four Justices who joined him -- chopped liver? They just spoke for the United States -- indeed, in conjunction with Justice Stevens, they articulated the now-governing view of the U.S. government.

Of course, what you meant was that *one* of our three branches of government had not adopted the ICRC view -- a branch to which, I might add, the Court strikingly gave absolutely *no* deference -- not even a smidgen -- on questions of interpretations of treaties (CA3) and the laws of war. (Not hard to figure out why *that* was.)

Anonymous said...


Let us suppose the Bush administration was not in power. It will not be forever. Do you really think the Supreme Court in general to be the most competent branch to set the United States' policy on understanding of customary international law?

The Supreme Court has neither expertise nor the detailed understanding of consequences that are available to the executive and legislative branches. Certainly Ken has demonstrated the former by pointing out the nonsense of the Court's consulting Webster rather than the legal history of the Conventions on the meaning of specific phrases.

The Supreme Court may well be competent to correct executive interpretations which are egregiously erring - but the blanket intepretive powers you would transfer to the Court are, I believe, best left with the political branches.

There will again be an adminstration which you trust both to act in the best interests of the US and to be humane while doing so.

Ken's point is precisely that this private, non-official ICRC interpretation creates the temptation for US courts to use it to define law in an area where US policy is legitimately best set by a competent executive.

Marty Lederman said...

You said it best, Nathan: "U.S. policy is legitimately best set by a *competent* executive."

I am not proposing to transfer "blanket intepretive powers" to the Court. But I'm not advocating that the Court adopt a strictly defernential view, either.

Going forward, of course the Court will often, perhaps almost always, pay great deference to the Executive's interpretations of treaties and the laws of war.

Except when it doesn't. And the cases in which it won't to do so, like Hamdan, will be those where the Court thinks the Executive's interpretations are less than worthy of respect. In this case, of couse, the Court quite accurately understood that this is an Administration that has nothing but contempt for human rights treaties and CIL, one that interprets them so as to defeat rather than to advance their purposes, and that does not even pretend to *faithfully* execute these laws, but instead invariably and tendentiously bends them to the exigencies of the moment.

This doesn't mean the Administration's interpretations are always wrong, of course -- and I'm on record as saying that the "not of an international character" question was a difficult one. But it does explain the absence of any judicial deference -- they haven't earned it.

Anonymous said...


Thanks for the response. I don't think any of us are very far apart here. Ken's constant complaint about the administration is this: There is a legitimate case that the conflict with al Qaeda does not fit neatly into the international laws of war. Al Qaeda also plays a double game, using our human rights expectations against us when they serve its purposes but not even pretending to abide by them itself. The Administration ought, therefore, to have worked at least with Congress and wherever possible with the international community to establish new legal expectations for conduct in wars of this nature.

But it did not. Instead, it "invariably and tendentiously bends [the law of war and human rights law] to the exigencies of the moment."

This is bad news in the long term for the war against al Qaeda and its terrorist affiliates. Adminstrations are transitory, but the law endures. Congress and the international community would likely have been receptive to making any necessary changes in 2002. Now, because the Bush adminstration chose the course it did, opinion has hardened against such changes. That will make dealing with terrorism more difficult for future adminstrations.

Marty Lederman said...

Thanks, Nathan. I agree completely.