Prevention in Practice: Teaching IHL in US Legal Academia

Kate jastram, university of California, Berkeley

Kate jastram, university of California, Berkeley

Today we are sharing a piece by Kate Jastram, a professor at the University of California in Berkeley.  The post is a shortened version of an article that she and Anne Quintin wrote for the International Review's issue on Generating Respect for the Law.  Their article discusses the progress of International Humanitarian Law (IHL) integration in US legal academia and charts a course forward. 

Why teach, or learn, international humanitarian law?  Students interested in careers in the military and in national security more generally need to learn the international law foundation for understanding actions taken by US presidents, Congress and the courts.  For students interested in international human rights law, knowledge of IHL is a necessary complement given the high degree of overlap between the two areas of law. Even, or perhaps especially, students who will not specialize in this area benefit from exposure to the basic principles and current challenges in the law of armed conflict.  The US is such a dominant military force in the world that educated citizen-lawyers should be able to assess for themselves the validity of the controversies that surround nearly every exercise of US use of force, from fighting terrorism to maintaining or closing the prison at Guantanamo to the use of targeted killing by drones to the unseen world of cyber security.  

As part of the latest issue of the ICRC Review on Generating Respect for the Law, Anne Quintin and I report on our study on teaching IHL to law students in the United States.  Our article, “Prevention in Practice: Teaching IHL in US Legal Academia” updates and complements a baseline report published in 2007 by ICRC and American University Washington College of the Law on Teaching IHL in U.S. Law Schools, which surveyed law professors to assess the extent to which IHL was then taught in US law schools and to identify actions that would expand such teaching.  The three main recommendations from the 2007 report were to develop teaching resources, create training opportunities, and cultivate a faculty network. 

In order to assess progress made since 2007, Anne Quintin, then serving in ICRC’s Washington Delegation, and I gathered new and much more extensive data.  From it, we draw solid conclusions on the progress of IHL integration in US legal academia and chart a course for the future. We document tremendous growth in legal scholarship and increased opportunities for student engagement and professional development.  “Prevention in Practice” provides both quantitative and qualitative data gathered from a variety of sources, compares it to the 2007 Report, and analyzes its meaning in the context of today’s changing law school environment.  We then present our own recommendations for action on the part of law schools, legal scholars and the ICRC.  

joint icrc-berkeley ihl workshop in 2015

joint icrc-berkeley ihl workshop in 2015

At the outset, we address the continuing importance of teaching IHL, both in the United States and globally, as a matter of treaty adherence and as a precondition for effective implementation of international legal obligations.  The provisions requiring widespread promotion of IHL are linked to common article 1, which calls upon States to respect and ensure respect for the Conventions.

We then explain our methodology.  Our research tools included a lengthy online survey completed by eighty-seven law school professors from eighty-two different law schools, extensive follow-up interviews by phone with twelve of the professors, a database of law school courses and professors, a numerical compilation of journal articles and books published in each of the last seven years, a presentation of new textbooks, teaching modules and other resources, and ICRC’s own reflections on its prevention policy in the United States. Together, these sources provide the most comprehensive review and resource to date on the state of IHL teaching and scholarship in US legal academia.

The core of the article is found in the third part, which presents and analyzes the major survey findings. It identifies trends over the past seven years, and highlights current opportunities and challenges for

ICRC’s prevention policy, by comparing our research results with some of the key external factors that might have served to promote or to discourage teaching of IHL in the United States during this period. 

We conclude that IHL teaching and scholarship are strong and growing in US legal academia.  While the shifting economics of legal education are a cause for concern, the ICRC and other organizations such as the American Society of International Law (ASIL) and the American Red Cross have helped to develop and support a dedicated network of professors and a motivated group of students.

We found that the three recommendations arising from the initial 2007 report have been largely achieved.  The first was that teaching resources should be made available. The 2007 Report called for a law textbook, and at the time we wrote there were five available. It called for teaching modules, of which there are now three. It called for a syllabus bank, which the ICRC is in the process of developing on its website.  Finally, it also called for greater dissemination of the ICRC’s casebook How Does Law protect in War? The third edition of this resource was published in 2011 and is available online.

The second recommendation in the 2007 Report was that IHL-specifictraining opportunities should be created for experienced faculty as well as first-time teachers. As detailed in the article, ICRC has partnered with a number of law schools and legal organizations, most notably ASIL’s Lieber Society on the Law of Armed Conflict, to provide these opportunities, an initiative that continues.

The third and final recommendation in the 2007 Report was that a faculty network should be cultivated to share resources and ideas, support and encouragement. Such a network has been a natural outgrowth of the numerous training opportunities offered in particular by the ICRC and its partners, augmented by social media.

Finally, we offered three of our own recommendations for the years ahead.  First, it is important to continue efforts toward regional thematic events on IHL in the US, realizing that many law professors do not have the time, resources or need to attend multiple-day specialized trainings.  Second, at the same time, the US legal network should reach out to others abroad, as exemplified by ICRC’s organization of several transnational events in the past few years.  Third, using the successful strategy of integration with legal education, thought should be given to adapting a similar framework for international relations, political science or conflict studies.