Separation anxiety? Rethinking the role of morality in international human rights lawmaking.

• Author: Padmanabhan, Vijay M.
• Position: III. Failures of the Separation Thesis in International Human Rights Lawmaking C. Customary Law through VI. Conclusion, with footnotes, p. 595-624

3. Customary Law

   There are reasons to believe moral obligations play a role in the validation of human rights customs.

   Scholars have noted that international legal actors rarely apply the conventional test for customary law in practice. (124) The ICJ regularly makes claims that norms are custom without providing documented evidence from the practice of a broad cross section of states or evidence that states believe their practice is legally obligatory. (125) The ICJ's practice may simply reflect the scope of the task required to demonstrate traditional custom, given that the international community of states today numbers over 190. (126)

   However, the need to take short cuts is apparently reduced with the resort to modern custom. (127) As discussed in Part II, the theory of modern custom is in wide usage in human rights law. Modern custom replaces the requirement that the customary behavior of states validate legal obligation with a validation based on the systemic agreement of the international community of states. As a consequence, the role played by state practice in the ascertainment of law is reduced, though not eliminated. (128) Systemic agreement is established primarily through treaty text and international resolutions, which are far easier to locate. International consensus is confirmed or refuted through examples of state practice. (129) Despite this reduced burden, actors within the human rights community attribute customary status to norms both when there is a paucity of evidence establishing that there is systemic agreement the norm is customary as well as in situations when there is significant contrary evidence.

   International criminal courts have been at the forefront of interpreting the content of customary human rights law because they must determine if the crimes are established in customary law. Otherwise, the principle of nullum crimen sine lege would prohibit prosecutions on the basis of crimes that did not exist at the time the conduct occurred. (130) One would expect such courts to be exacting in the application of the test for modern custom because the rights of the defendant are at stake. But international courts have frequently located customs despite the absence of evidence of consensus in the international community of states. This practice might be explained by the fact that moral obligation is validating customs as law.

   The International Criminal Tribunal for the former Yugoslavia (ICTY) is a good example. (131) In Jelisic the ICTY had to establish the content of the customary definition of genocide, in order to determine the proof required to convict the defendant. (132) Genocide, the most severe human rights violation, requires specific intent "to destroy in whole or part a particular group as such." (133) A difficult question is how widely the group's members must be targeted for the intent of the attack to qualify as one targeting the group. (134) The ICTY Trial Chamber concluded that the customary offense of genocide does not require targeting a large number of group members, as was previously required by the International Criminal Tribunal for Rwanda (ICTR). (135) Rather, it concluded that genocide can occur when a limited number of leaders are killed if their destruction would harm the survival prospects of the group,. (136)

   In reaching this conclusion on the content of customary law, the ICTY does not invoke any international treaties, resolutions of global bodies, or state practice to establish the content of systemic agreement in the international community. (137) Rather, the ICTY cites primarily to the conclusions of a single committee of legal experts created to advise the secretary-general on crimes committed in the former Yugoslavia. (138) This committee applied the more expansive definition of genocide in its report. While the views of such experts are certainly probative of the content of international law, they are themselves very little evidence to establish the systemic agreement of the international community of states. The fact that the ICTY concluded that this definition of genocide is customary law--a substantial decision given the rights of the defendant--without further inquiry into the content of international consensus, raises questions as to whether the ICTY actually believes such consensus is required to validate a norm as customary.

   A role for moral obligation in validating law better explains this practice. It is plausible, given the nature of the conduct at issue, that the ICTY judges implicitly concluded that there is a moral obligation not to target the leadership of ethnic or religious groups in order to harm the group. The ICTY then used its understanding of morality to validate this definition of genocide as custom. In other words, because there is a moral prohibition on targeting group leaders, very little or no evidence of systemic agreement in the international community of states is needed to establish a customary norm.

   The Special Court for Sierra Leone (SCT) has similarly made claims about the content of customary law without establishing the systemic agreement of the international community of states. Article 4 of the SCT statute grants the court jurisdiction to hear charges related to the enlistment of children under the age of fifteen in armed forces or groups. (139) A defendant charged under this provision challenged its compatibility with the principle of nullem crimen sine lege, claiming the offense was not established in customary law at the time it was committed. (140)

   The SCT permitted the prosecution to proceed on the charge, on the grounds that a criminal prohibition on enlistment of child soldiers was customary at the time the conduct occurred. In reaching this conclusion, the SCT, like the ICTY, did not cite to international treaties, resolutions of global bodies, or state practice. Instead, it supported its position by citing to early drafts of the Rome Statute, which ultimately created the International Criminal Court, and to a negotiating proposal made by Germany to include the enlistment of child soldiers in the Rome Statute as a crime. (141) Given the grave consequences for the defendant of this judgment, it seems unlikely that the SCT would have concluded the norm was customary on the basis of such evidence alone if it believed that the systemic agreement of states is a sine qua non for customary law.

   Moral obligation may provide a better explanation. The harm to youths from recruitment by armed groups plausibly led the SCT to conclude that the conduct violated the moral obligations of states. This moral obligation reduced the need to locate systemic agreement in the international community of states. The SCT admits that the gravity of the conduct involved partially drives its decision to conclude that the conduct at question was prohibited under customary law. (142)

   These last two examples reflect situations in which there is a paucity of evidence supporting the conclusion a human rights norm is customary. In other instances, human rights actors are confronted with contrary evidence to the conclusion a norm is custom. Mixed evidence would seem to suggest there is no custom because there is no systemic agreement on the point. Yet, in many instances human rights actors nevertheless find a custom. This approach is difficult to explain if the systemic agreement of the international community of states is the sole validating criterion for modern customary law.

   Consider, for example, the oft-proclaimed customary law prohibition on torture. While states regularly repeat that torture violates customary law, (143) international practice is replete with examples of states that torture. (144) Thus, under the rubric of modern custom, the question must be asked as to whether there is systemic agreement in the international community of states that torture is always prohibited. While verbal practice certainly supports the existence of such consensus, physical practice suggests that torture can sometimes be used. On what basis is verbal practice prioritized?

   In Filartiga v. Pena-Irala, (145) plaintiffs claimed the defendant violated the law of nations by engaging in torture. To determine whether U.S. courts had jurisdiction, the U.S. Court of Appeals for the Second Circuit evaluated whether the torture of an individual within government custody constituted a violation of customary law. (146) In answering the question in the affirmative, the court relies upon (1) inclusion of a prohibition on torture in the Universal Declaration of Human Rights (UDHR) and in other UN General Assembly resolutions; (147) (2) human rights treaties that prohibit torture; (148) and (3) municipal laws prohibiting the use of torture. (149)

   While such verbal practice certainly demonstrates a rhetorical commitment to the prohibition on torture, the existence of systemic agreement on the prohibition is undercut by the widespread violation of the norm in practice. (150) However, the court dismisses such practice as merely a violation of customary law, as opposed to evidence cutting against the existence of a prohibition. (151) If the goal of the court's analysis is to establish the content of the international community's systemic agreement, then this approach is curious. While it is of course true that the existence of violations is part and parcel of the law, in the area of customary law, it is practice--verbal and physical--that determines whether a norm exists in the first place. (152) The fact that physical practice has never supported the existence of a prohibition on torture would appear relevant to the existence of systemic agreement.

   Moral obligation may explain what is missing. Those interpreting whether the torture prohibition is customary are faced with conflicting evidence on the views of states, but interpreters, such as the Second Circuit, plausibly believe that states have a moral obligation not to torture. Moral obligation...