Ken Anderson on ICRC Customary International Humanitarian Law Study
Ken Anderson is the first member of the blogosphere to read every page of the 5,000 page ICRC study on Customary International Humanitarian Law (which we discussed here when it was published last spring). His thoughtful analysis is here. So why pay attention to the study?
What does the Study mean in practical terms for matters of international humanitarian law? The view of the ICRC is that the Study “does indeed present an accurate assessment of the current state of customary international humanitarian law.” The ICRC therefore intends to “take the outcome of this study into account in its daily work.” (Kellenberger introduction, at xi.) The Study’s view of customary law will thus form the basis, for example, of ICRC challenges to the US practices regarding detainees. Beyond the ICRC, it will almost certainly be absorbed as authoritative by other non-governmental actors, international tribunals, and others. It will thus be cited as essentially binding authority in a wide variety of venues, ranging from courts to treaty negotiations. Because of the fact that customary law is, in principle, binding on all states even without formal consent, the implications of the Study being accepted as authoritative are, to say the least, weighty for international law. Finally, it should be noted, the Study may well have a very significant practical effect within US domestic legal practice, as it will surely be widely cited and, absent some clear dissent from the US, be accepted as the authoritative standard for the content of customary international law in Alien
Tort Statute and other domestic cases that turn on international law.
He identifies one of the central flaws in this project of "codifying" the content of customary international law by taking into account every action of every state (no matter how "micro" the state in question is, or how infrequently it engages in war):
The flip side of this exhaustive inclusivity is that the views of larger and military powerful states are inevitably downplayed. Unsurprisingly, the views of the United States are the most downplayed – not from any ideological motivation, but simply as a result of a method that emphasizes including everyone’s views, and regards “views” as equally important if not, in the aggregate, more important than the facts of how parties fight. There is, in other words, a certain sense in the Study that in the battle over legal rules, he who writes the most memos wins.
Ken and Tod Linberg are co-sponsoring a discussion of the study at the Washington, D.C. offices of the Policy Review-Hoover Institution this Wednesday, Nov. 16, for those seeking a primer on the issues and the study's implications for the United States.