Q&A: Parsing how the US understands and interprets IHL

Last week, to coincide with an update of US practice in the ICRC’s Customary International Humanitarian Law (IHL) Database, we published an interview with the ICRC’s Els Debuf about the importance of customary law. That got us thinking about what goes into collecting such practice and what recent developments can be seen here in the US in particular. So we turned to Laurie R. Blank, a Clinical Professor of Law and the Director of the IHL Clinic at Emory University School of Law, where she teaches and works directly with students to provide assistance to international tribunals, organizations, and law firms around the world on cutting edge issues in humanitarian law and human rights.

Read her full bio here and check out our Q&A:

Intercross: Thanks for taking the time to answer a few questions, Professor Blank.

Professor Blank: Thank you for the gracious invitation to share our experiences working on the Customary IHL Database — and, equally important, I'd like to thank the ICRC’s Regional Delegation for the United States and Canada for the wonderful opportunity for students in the IHL Clinic to provide assistance on the development of this important tool for the promotion and implementation of IHL.

Intercross: It’s our pleasure. We appreciate your support and that of your students in helping us collect practice in the US. Let's start with how you and your students are involved in the Customary IHL Study itself. What does that entail?

Professor Blank: Emory Law School’s International Humanitarian Law Clinic, founded in 2007, gives students opportunities to engage in hands-on, “real-world” work on IHL issues, providing assistance to organizations around the world, including international criminal tribunals, the US military, NGOs, and the ICRC. Through their clinical work, students put their developing legal skills into practice in the full spectrum of IHL activities: dissemination, training, implementation, and enforcement. The IHL Clinic focuses on three main substantive priorities: training and education for militaries and organizations involved in armed conflict; the implementation of international humanitarian law in US military operations and national security strategy; and promotion of accountability for violations of IHL.

Students in the IHL Clinic have worked with the ICRC on updating US practice for the Customary IHL Database since 2011. IHL Clinic work in gathering US practice for the database helps to advance understanding of how States execute their obligations under IHL. This understanding, in turn, is an important component of the effective implementation of the law of armed conflict, which is essential to lawful and effective military operations and to the protection of civilians and all persons in conflict areas.

Intercross: What does it mean to collect “practice”? What is included in the “practice”?

Professor Blank: Each year, IHL Clinic students tackle exactly these questions as they set out to identify and collect relevant US practice from the previous year. These questions, of course, derive from the whole notion of customary international law, which is based on State practice and opinio juris (the belief that the action was taken out of a sense of legal obligation). Although our work on the Customary IHL Database inherently focuses more on the former component, we see a number of examples where the practice we collect contributes directly to the understanding and identification of opinio juris as well. 

The primary categories of practice that students search for and gather are: cases, legislation, military manuals, public pronouncements by government officials, and any other relevant actions, representations or statements by the US government relating to IHL. The challenge is to develop methods for finding the relevant practice within each category and to think creatively about examples of US official statements or other pronouncements. Through initial brainstorming conversations with IHL Clinic faculty and with the legal advisors at the ICRC in Washington DC, students formulate an initial list of State practice and then use that as a foundation to continuing building a comprehensive collection. Students also do extensive reading and searching in international law and national security blogs, news, and other sources to try to capture all relevant practice.

The next step in the process is to summarize each particular case, legislation, manual, or other example of practice so as to highlight the relevant legal principles and issues involved.  Students then identify all relevant rules from the Customary International Humanitarian Law Study that are implicated by the specific practice. Doing so requires that students be intimately familiar with all topics and components of the Customary IHL Study so as to include every possible rule that might be implicated — from status of persons to targeting to the respect and promotion of IHL. 

Intercross: What are the main challenges you see your students facing when they collect practice? Are some types of practice harder to find than others?

Professor Blank: Students working on collecting practice in the United States have an enormous amount of material with which to work, given the extensive US military operations of the past decade and more, so the rewards of diligent research are great. The case law stemming from detention at Guantanamo Bay and the military commissions is a perfect example and a fertile ground for collection of US practice each year. At the same time, for other forms of practice, it can be harder to identify the relevant items that should be collected. Military manuals are often the prime example of this category — particularly for law students, who rarely are familiar with the different types of military manuals, what they cover, whether they have been updated, and where they can be found.  Students tackle this challenge through a combination of research and talking with experts who can suggest both specific manuals that have been updated and avenues for further exploration as well. A second challenge with military manuals and similar practice is identifying the particular changes and updates in a given manual and how they might impact the formation of customary IHL.

Intercross: Over the past few years, what new developments can be seen in US practice?

Professor Blank: One of the most remarkable developments over the past few years is the frequent use of public speeches by high-ranking US administration officials to set forth US perspectives and interpretations of IHL and other relevant international law. Speeches by the State Department Legal Advisor, the General Counsels to the Department of Defense and Central Intelligence Agency, the Attorney General, and the President’s top counterterrorism advisor, to name a few, have become go-to sources for parsing how the US understands and interprets its obligations regarding targeting, detention, and a host of other humanitarian law issues. In the past, a compilation of US practice relating to customary IHL would likely not have included even one public address, let alone four or more, as we have seen in the past two or three years. Although none of these speeches is a direct statement of opinio juris (with the exception of the White House statement regarding US willingness to follow Article 75 of Additional Protocol I “out of a sense of legal obligation”), the fact that they are often viewed, in both the public discourse and the scholarly community, as clear signals of US legal interpretation has made them highly relevant for the collection of US practice.

Editor's note: Thanks to ICRC DC Deputy Legal Advisor, Andrea Harrison, and ICRC DC Public Affairs Officer, Tracey Begley, for their help with this Q&A.