The U.S. v. the Red Cross: customary international humanitarian law and universal jurisdiction.

• Author: Erakat, Noura

1. INTRODUCTION

   In 1995, the International Committee for the Red Cross ("ICRC" or "Committee") embarked on a momentous project to document and codify customary international humanitarian law. Using a broad methodological approach to the formation of customary international humanitarian law, the ICRC concluded that there exist 161 rules applicable during international and non-international armed conflict that are of customary nature. The Study presented a challenge to the United States' enduring rejection of the applicability of certain provisions of the 1977 Additional Protocols I and II. Those are the legal, and multilateral, milestones that extended the protections of the laws of armed conflict to non-state actors engaged in untraditional warfare.

   Between the close of the Second World War and 1977, most wars were fought either between non-state actors and states (i.e., wars of liberation) or within states (i.e., civil war and unrest). The state-centric character of international law was ill-equipped to regulate this non-traditional combat. In response, states re-convened between 1972 and 1973 to legislate new provisions to supplement the meager lexicon governing non-international armed conflict afforded by the Geneva Convention's Common Article 3. These advancements constitute the Additional Protocols.

   The ICRC's Customary International Humanitarian Law Study ("Study") asserts that its documentation of state practice, coupled with obligations, which states deem to be legally binding, form a corpus of customary law that arguably challenges some of the U.S.'s outstanding protests. Published in 2005, amidst the U.S.'s Global War on Terror--which promised to incapacitate an enemy lacking a national identity and national borders--the Study was received hostilely by the U.S. Administration. State Department Legal Adviser John B. Bellinger III and Defense Department General Counsel William J. Haynes II admonished the Study's findings, asserting that the ICRC's methodological approach to the formation of customary international law lacked rigor and precision. The ICRC, they argued, was excessively reliant on the verbal and written commitment of states at the expense of their actual behavior. As such, an untold number of the rules it identifies lack the binding character constitutive of customary law, and international law more generally.

   The discord between the U.S. and the ICRC reflects a methodological divergence in approaches to the formation of customary international law. Whereas traditional custom--reliant on state operational practice--represents the law's descriptive accuracy, the modern approach--which looks to the trajectory of the collective will of states--reflects its prescriptive appeal. The U.S. vividly demonstrates this divergence in its examination of four customary rules proffered by the ICRC. Among its illustrative case studies, the U.S. takes issue with Rule 157, that states have the right to vest universal jurisdiction in their national courts over war crimes.

   This paper shows that while the modern approach to custom is superior for the determination of customary human rights and humanitarian law, the methodological approach does not presuppose a particular outcome. To the contrary, while the ICRC was correct to apply the modern approach in its Study, its analysis, based upon its evidentiary findings, was imprecise. Therefore, its conclusion, regarding the customary status of universal jurisdiction, is arguably incorrect.

   To demonstrate this case, the article uses the U.S.-ICRC debate as a backdrop and begins by unpacking the U.S.'s critique of the ICRC's Study. It then briefly explores the traditional and modern approaches to the formation of customary international law. Next, it makes a normative argument for the application of the modern approach to customary human rights and humanitarian law. The following sections demonstrate how, even using the proper methodological approach, the ICRC's analysis is partly flawed, thereby undermining the applicable scope of universal jurisdiction to war crimes as asserted by Rule 157. The paper concludes by drawing lessons, from this debate and case study, about the proper approach to customary international humanitarian law.

2. THE UNITED STATES VERSUS THE INTERNATIONAL COMMITTEE OF THE RED CROSS

   In 1995, the ICRC began a comprehensive study to examine those laws of war applicable in international and non-international armed conflict. (1) The ICRC's purpose was two-fold: first, to identify those Geneva treaty provisions that are binding on non-party states and territories, (2) and second, to supplement the meager detail available for the regulation of non-international armed conflict. (3) In its Customary International Humanitarian Law Study, completed over ten years and reliant on research from more than fifty countries, and archives from nearly forty recent armed conflicts, the ICRC identified 161 rules to be of customary nature. (4)

   The ICRC used a classic approach developed by the International Court of Justice ("ICJ") to determine the existence of a general customary international law. (5) Customary international law generally requires the presence of two elements, state practice and opinio juris, or the belief that such practice is a legal obligation, as opposed to one reflecting morality, reciprocity, courtesy, or otherwise. (6) Accordingly, the ICRC relied both on verbal and physical acts of states as constitutive of state practice so long as they represent official practice. (7) Though classical in its approach to establishing that a rule is of customary nature, the ICRC did not require that opinio juris be demonstrated as a distinct and separate element. Instead, it found that "more often than not, one and the same act ==reflects practice and legal conviction." (8) So long as the practice is sufficiently dense, opinio juris can be found within that practice and therefore its existence did not need to be demonstrated separately. (9) Significantly, the ICRC did not assert that treaty ratification as a practice also represented legal conviction in what it describes as a "cautious approach." (10)

   In its response to the ICRC Study, the U.S. government took particular issue with this methodological approach. While the U.S. acknowledged "the same action may serve as evidence both of state practice and opinio juris," it insists opinio juris cannot be inferred by practice but must be "assessed separately." (11) The U.S.'s concerns reflect its cautionary approach to the relationship between multilateral treaties and customary law. (12) It chided the ICRC's approach, insisting that opinio juris cannot be established by mere recitation of treaty provisions, which may "as easily ... reflect policy considerations as legal considerations." (13) The U.S. explains that to show that a rule is customary, the ICRC must be able to prove that a state is legally obliged to observe a rule even in the absence of a related treaty. (14) The ICRC, however, did not consider a widely ratified treaty as definitive but instead only as indicative of custom in the context of broader state practice.

   In regards to assessing practice, the U.S. government accepted the ICRC's methodological approach but found the humanitarian organization's application insufficiently rigorous. The U.S. argued that the ICRC did not establish sufficient density of practice in many cases; (15) that it gave undue weight to the statements of non-governmental organizations; (16) that it failed to give more weight to negative practice in several cases; and that it erroneously relied upon state documents and proclamations, namely upon military manuals and non-binding general assembly resolutions. (17) The government argues that while these materials may serve as an indicator of opinio juris, they cannot replace the veracity of operational practice. (18) Finally, the U.S. admonished the ICRC for equating the state practice of specially affected states with that of relatively lesser-affected states. (19)

   Relying heavily upon the ICJ's decision in Military and Paramilitary Activities in and Against Nicaragua, (20) and North Sea Continental Shelf, (21) the ICRC agreed with the U.S. that the quantity of states is less relevant than their qualitative value. Accordingly, the quantitative support for a rule is less significant in the case where all specially affected states offered support. In cases where specially affected states opposed a provision, the quantitative value of state support is arguably inconsequential. (22) Still, the ICRC held that in the realm of warfare, all states have an interest in humanitarian provisions and therefore their practice must also be given due weight, thereby diminishing the role of specially affected states in the determination of customary international humanitarian law. (23)

   The ICRC also held that state practice must be sufficiently similar among states, but not necessarily identical. The Committee found that contrary practice did not undermine the existence of a customary rule so long as other states condemned the practice or the government itself denied it, thereby negating its official nature. Significantly, the ICRC afforded great weight to verbal state practice even in the face of repeated violations. In the case that a state wished to change an existing rule of customary international law, it would "have to do so through [its] official practice and claim to be acting as of right." (24)

   Where the ICRC insisted on general adherence and practice to reflect a rule's customary nature, the U.S. insists upon detail and specificity. Even in the formulation of its rules, the U.S. notes that the ICRC failed to state rules with sufficient precision to reflect state practice and treaty obligations. (25) The U.S.'s stringent standards reflect a traditional approach to the formation of customary law wherein, absent treaty law, binding rules are based on actual, not...