The U.S. V. the Red Cross: Customary International Humanitarian Law and Universal Jurisdiction
Erakat, Noura, Denver Journal of International Law and Policy
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. …