The US v. The Red Cross: Customary International Humanitarian Law & Universal Jurisdiction

Abstract

In this article I examine the US Government response to the International Committee of the Red Cross’s (ICRC) comprehensive study on Customary International Humanitarian Law. My examination seeks to assess the accuracy of the US’s critique of the ICRC’s approach to establishing customary law. In doing so, I both develop an argument about the appropriate methodology for establishing customary law as well as examine one case study, on universal jurisdiction, in close detail. Narrowly, the question I seek to answer is whether, and to what extent, the US Government’s response to the ICRC’s study is valid in light of proper approaches to the formation of customary international law? More broadly, I am asking whether global superpower and/or a minority of the world’s most powerful states can shape customary international law by affording extraordinary weight to practice, and, relatedly, to the doctrine of specially affected states. I argue that the modern approach to custom is more appropriate as concerns human rights and humanitarian law because of the unreliability of operational state practice, as well as the fact that the community of nations is not an aggregate of its many parts but rather a collective whole. I note, however, that this does not discount the tangible and heavy-handed impact of the behavior of powerful states upon the formation of custom. In my conclusion I assert that whereas the International Court of Justice in the North Sea found that custom cannot be established in the face of protest by a specially affected state in regard to a specific right, I suggest that global superpower, by virtue of its status, is always specially affected by a supranational law.

Keywords: customary international humanitarian law, customary law, humanitarian law, universal jurisdiction, torture, Bellinger, International Committee for the Red Cross, ICRC, modern customary law, traditional customary law

JEL Classification: K10, K33, N45, Z00