Sleeping Dogs: The Restatement (Fourth) and International Humanitarian Law

Abstract

Over the past two decades, important new rules regulating the conduct of armed conflict have emerged from domestic judicial decisions in several states, including the United States. Courts produced decisions about how to characterize a state’s extra-territorial armed conflicts against non-state actors; who a state lawfully may detain or target during those conflicts; the detention review processes a state must conduct; and what restrictions should attach to detainee transfers. We might term this case law “domestic humanitarian law” (or “DHL”). DHL offered a way to develop international humanitarian law in the absence of new international negotiations. U.S. courts were a major player in this undertaking. The decisions they produced, and the congressional and executive reactions to those decisions, fall squarely within what we think of as U.S. foreign relations law.

Notwithstanding the stated interest by the Restatement (Fourth) of Foreign Relations Law’s reporters in updating the Restatement (Third) to better reflect major geopolitical changes since 1987, however, and notwithstanding the fact that DHL is a new, plentiful, and important reflection of those changes, there seems to be an unspoken consensus that DHL would be a poor subject for the Restatement (Fourth) to take up. This chapter considers why this is the case and what it says about U.S. “war on terror” jurisprudence.

The chapter first describes basic developments in U.S. “DHL” since the September 11 attacks and shows why this jurisprudence theoretically would fit squarely into a Restatement (Fourth). It then explores why there is no enthusiasm for including the topic in a future Restatement, even from groups whom we might expect to support such an idea. It focuses on academics who support broad executive power, academics who emphasize the importance of U.S. compliance with international law, and officials in the executive branch, including lawyers in the State, Defense, and Justice Departments. Substantively, it surveys why each group may have unique reasons to resist the inclusion of DHL in a Restatement, and why all three groups may share general, strategic reasons to resist. It concludes that this pessimism reflects dissatisfaction from virtually all quarters about the state of U.S. law in this area, even from those actors who ostensibly “won” their cases.

Keywords: international humanitarian law, law of armed conflict, restatement, foreign relations law, war on terror, supreme court, executive branch