Any analysis of the role domestic courts play in the enforcement of international humanitarian law (IHL) must confront recurring and layered skepticisms: that war in the real world is not meaningfully constrained by law and that, even if it were, the conduct of hostilities cannot be judged after the fact in the detached and unilateral setting of a domestic courtroom. But from the beginning of the republic, the courts of the United States have applied norms now collected under the rubric of international humanitarian law and, in the process, have played a constitutive role in its articulation and enforcement. Precedents in both the military and the civilian judiciary, in both criminal and civil proceedings, suggest that the domestic courts can act as agents of the international order, in Professor Richard Falk's phrase, by implementing established IHL norms and by defining them in the first place.
This Article explores the capacity of domestic courts to implement and enforce IHL, their obligation to do so, and the limits that IHL places on their processes and their jurisdiction. The analysis is inevitably complicated by the variety of norms that qualify as "humanitarian." At its most abstract, IHL defines the minimum standards for human rights applicable to all parties to an armed conflict - a definition that assures a broad overlap between IHL and the vast canon of human rights norms.1 As suggested below, this conception supports an expansive role for domestic courts. But a more concrete and ostensive definition suggests that some norms of IHL are more appropriate than others for enforcement in the domestic courts. It could be argued, for example, that international humanitarian law comprehends heterogeneous norms like the right to peace, the prohibition of certain weapons, the protection of cultures and environments in times of armed conflict, the prohibition of wanton destruction and attacks on civilians, the protection of prisoners of war, and individual accountability and/or reparations for all violations. In the case -dependent world that is the common law, and in a judiciary that will decline to resolve "political questions," it is implausible that each of these norms would be equally enforceable in a domestic court in every setting.
Nonetheless, history and doctrine suggest that there are three broad "litigation-types" or paradigms defining the circumstances in which U.S. courts potentially play a constructive role in the implementation and enforcement of IHL:
(1) The Yamashita2 paradigm, referring to criminal prosecutions, under a federal statutory regime informed by international standards, in military and civilian courts, of both U.S. and foreign combatants, typically though not necessarily at the end of an armed conflict, under a restrictive conception of international humanitarian law traditionally limited to the laws of war as laid out in the Geneva Conventions of 1949,:i their antecedents, and their progeny;
(2) The Filartiga4 paradigm, referring to civil proceedings for damages or injunctive relief, primarily under a common law regime informed by international standards, against a variety of non-state actors including individuals and organizations, potentially even in the early stages of a conflict, and invoking an expansive conception of what qualifies as international humanitarian law; and
(3) The 911 paradigm, referring to a response of the domestic courts to the epochal terrorist attack of 11 September 2001, in which the judiciary should be expected to supervise arid implement various administrative or regulatory measures (e.g. detention of persons, the seizure of evidence and property, the freezing of assets, extradition, deportation, the revocation of licenses, debarment) based on an amalgam of IHL and criminal law, and directed at both state and non-state entities.
I am not arguing that these patterns for the potential enforcement of international humanitarian law are hermetically separate from one another nor that they are immune from evolution on their own terms. …