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Prevention in practice: Teaching IHL in US legal academia

Published online by Cambridge University Press:  10 July 2015

Kate Jastram  and
Anne Quintin
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Abstract

This paper assesses the evolution of teaching international humanitarian law (IHL) in law schools in the United States since 2007, analyzes progress made in overcoming challenges to more effective integration of IHL content in law school curricula, and provides a measure of the contribution of promotional initiatives and strategies undertaken by the International Committee of the Red Cross (ICRC) to this effort. The findings and recommendations should serve to support law faculty and law schools in the US and elsewhere, as well as the ICRC, in expanding opportunities for teaching and scholarship, and in encouraging law students and professors to pursue their interest in this field.

Keywords

IHL educationIHL teachingpreventionlaw schoolUnited States
Type
Integrating and implementing the law – the mandate and role of different actors
Information
International Review of the Red Cross , Volume 96 , Issue 895-896: Generating respect for the law , December 2014 , pp. 987 - 1027
Copyright
Copyright © icrc 2015 

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References

1 ICRC and American University Washington College of Law, Report: Teaching International Humanitarian Law at U.S. Law Schools, Washington, DC, 2007, available at: www.wcl.american.edu/humright/center/ihl_report.cfm.

2 For a detailed overview of the ICRC's Prevention Policy, see ICRC, ICRC Prevention Policy, Geneva, April 2010, available at: www.icrc.org/eng/resources/documents/publication/p4019.htm. Prevention is discussed in more depth below.

3 The 1949 Geneva Conventions are indeed universally ratified. The latest State to adhere to them was South Sudan on 23 January 2013. For additional information, see ICRC, Treaties and States Parties to Such Treaties, available at: www.icrc.org/IHL.

4 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Art. 47; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Art. 48; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), Art. 127; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Art. 144; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978), Art. 83; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1987), Art. 19.

5 On this particular point, see for instance Muñoz-Rojas, Daniel and Frésard, Jean-Jacques, “The Roots of Behaviour in War: Understanding and Preventing IHL Violations”, International Review of the Red Cross, Vol. 86, No. 853, 2004Google Scholar; Elizabeth Stubbins Bates, “Emerging Voices: Is Dissemination Sufficient to Promote Compliance with International Humanitarian Law?”, Opinio Juris, 13 August 2013, available at: http://opiniojuris.org/2013/08/13/emerging-voices-is-dissemination-sufficient-to-promote-compliance-with-international-humanitarian-law/. See also ICRC, “Armed Forces: Integration of IHL”, 31 May 2003, available at: https://www.icrc.org/eng/resources/documents/misc/armed-forces-ihl-integration-310503.htm.

6 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 1: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, pp. 348–349.

7 A 2011 American Red Cross survey on IHL showed that 48% of US youth from 12 to 18 years old (and 17% of the adult US population) had never heard of the Geneva Conventions. American Red Cross, Survey on International Humanitarian Law, research conducted by ORC International, March 2011, available at: www.redcross.org/images/MEDIA_CustomProductCatalog/m12940087_Survey_on_International_Humanitarian_Law.pdf.

8 As noted in an article about the American Red Cross Survey, ibid., “[w]hile people may have become more aware of the Conventions’ existence, they have not necessarily become better versed in the Conventions’ content and the significance of that content. For example, [the ARC Survey shows that] 55% of adults surveyed felt that they were somewhat or very familiar with the Geneva Conventions, but 51% also stated that they believed it was acceptable to torture enemy soldiers.” See Gutierrez, Brad A., DeChristofaro, Sarah and Woods, Michael, “What Do Americans Think of International Humanitarian Law?”, International Review of the Red Cross, Vol. 93, No. 884, 2011CrossRefGoogle Scholar.

9 See ICRC, above note 2.

10 The increase over the last decade in the number of blogs dedicated to national security law and the laws of war is a good example of how the two legal bodies are now understood as deeply intertwined. See below.

11 For instance, non-governmental organizations traditionally specializing in human rights now also have experts in IHL and rigorously examine that body of law as well. See, for example, Human Rights First, which has a number of advocacy campaigns aimed at IHL issues. For more information, see the organization's website, available at: www.humanrightsfirst.org/campaigns.

12 All three cases deal with certain aspects, including the legality, of the US detention regime at Guantanamo and are considered major legal developments following 9/11. See Hamdi v. Rumsfeld, 542 US 507, 2004; Hamdan v. Rumsfeld, 548 US 557, 2006; and Boumediene v. Bush, 553 US 723, 2008.

13 Reflecting this interest, “IHL and Emerging Technologies” is the theme of the 2014 Student IHL Writing Competition sponsored by the American Society of International Law and American University Washington College of Law, available at: www.wcl.american.edu/humright/center/2014internationalhumanitarianlawihlstudentwritingcompetition.cfm.

14 See, for instance, ICRC, “Internment in Armed Conflict: Basic Rules and Challenges”, Opinion Paper, November 2014, pp. 1, 3–6, available at: www.icrc.org/en/document/internment-armed-conflict-basic-rules-and-challenges#.VJGwnsAB; ICRC, Strengthening International Humanitarian Law Protecting Persons Deprived of their Liberty. Synthesis Report from Regional Consultations of Government Experts, ICRC, Geneva, November 2013; ICRC, “Expert Meeting on Procedural Safeguards for Security Detention in Non-International Armed Conflict. Chatham House and International Committee of the Red Cross, London, 22–23 September 2008”, International Review of the Red Cross, Vol. 91, No. 276, 2009Google Scholar; Pejic, Jelena, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, International Review of the Red Cross, Vol. 87, No. 858, 2005CrossRefGoogle Scholar.

15 See Executive Order 13567, “Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force”, 7 March 2011, available at: www.gpo.gov/fdsys/pkg/FR-2011-03-10/pdf/2011-5728.pdf. The first Periodic Review Board hearing took place in November 2013, and the process is currently under way. For more information, see the website of the Department of Defense Periodic Review Secretariat, available at: www.prs.mil/ReviewInformation.aspx.

16 The term “professor” indicates any law school instructor, without distinguishing between tenure/tenure-track and contingent faculty unless specifically noted.

17 See above note 1.

18 The survey questions can be found in the Appendices to this essay.

19 However, the response rate in 2012 may have been higher, as the 2007 survey was mailed in hard copy directly to more than 1,000 US law professors and deans of law schools.

20 Detailed interview notes are on file with the authors.

21 See ICRC, above note 2, p. 5.

22 Ibid., p. 7.

23 For instance, one of the main components of the ICRC's strategy is its bilateral and confidential dialogue with US government agencies and combatant commands, mainly on the protection of civilians, the conduct of hostilities, detention and other concerns in current theatres of US military operation worldwide. See ICRC, ICRC Annual Report 2012 (Washington Regional Delegation), Geneva, May 2013, available at: www.icrc.org/eng/assets/files/annual-report/icrc-annual-report-2012.pdf.

24 American Bar Association Task Force on the Future of Legal Education, Report and Recommendations, 23 January 2014, available at: www.americanbar.org/content/dam/aba/administrative/professional_responsibility/report_and_recommendations_of_aba_task_force.authcheckdam.pdf. The Journal of Legal Education, published by the American Association of Law Schools, regularly features articles such as “Symposium: Is Law School Worth It?,” Journal of Legal Education, Vol. 63, November 2013, p. 173Google Scholar; and Ehrenberg, Ronald G., “American Law Schools in a Time of Transition”, Journal of Legal Education, Vol. 63, August 2013, p. 98Google Scholar.

25 Peter Lattman, “Obama Says Law School Should be Two, not Three Years”, New York Times, 23 August 2013, available at: http://dealbook.nytimes.com/2013/08/23/obama-says-law-school-should-be-two-years-not-three/?_php=true&_type=blogs&_r=0. For a rebuttal to this notion, see Erwin Chemerinsky and Carrie Menkel-Meadow, “Don't Skimp on Legal Training”, New York Times, 14 April 2014, available at: www.nytimes.com/2014/04/15/opinion/dont-skimp-on-legal-training.html?_r=0. In this opinion piece, the authors argue that “[l]aw school faculties, in their teaching and their scholarship, must deal with the emerging problems of the 21st century. Law schools need to develop new courses to provide students with the expertise to deal with the crucial problems of our time in fields like … national security, [and] conflict resolution …. There should be ‘problem-based’ seminars in fields such as … world peace.”

26 Ethan Bronner, “Law Schools’ Applications Fall as Costs Rise and Jobs are Cut,” New York Times, 30 January 2013, available at: www.nytimes.com/2013/01/31/education/law-schools-applications-fall-as-costs-rise-and-jobs-are-cut.html?_r=0.

27 Due to the small sample size (12) of the in-depth interviews conducted with professors, and the authors’ choice to provide confidentiality in order to encourage interviewees to speak frankly, no information that could help identify the interviewees is supplied when citing specific comments. All interview notes are on file with the authors.

28 See “Best Grad Schools: Law: International Law”, U.S. News & World Report, available at: http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/international-law-rankings.

29 Information on the methodology for the online survey is presented below.

30 The 2007 Report did not include the clinical faculty category, but the results are otherwise similar.

31 ASIL's interest group is the Lieber Society on the Law of Armed Conflict; AALS has a Section on National Security Law; and the ABA Section of International Law has Committees on International Criminal Law and on National Security.

32 One of the most obvious examples is that of Harold H. Koh, who was Dean of Yale Law School before joining the State Department as Legal Adviser for President Obama's first term, and who returned to Yale Law School afterwards. There are of course dozens of additional examples, which also explains why academia is often referred to in the United States as the “government in the making”. See also the section on “Challenges to and Opportunities for a Successful Prevention Strategy”, above.

33 Katie Sams and Antoine Bouvier, “Teaching International Humanitarian Law in Universities: The Contribution of the International Committee of the Red Cross”, Yearbook of International Humanitarian Law, Vol. 5, 2002, p. 382.

34 One example is the ICRC–Berkeley Law Student IHL Workshop held annually at the University of California, Berkeley, most recently in January 2015.

35 At the time of writing, the most recent Teaching IHL Workshop was held in February 2014 in collaboration with Brigham Young University J. Reuben Clark Law School.

36 A first one-day thematic seminar was organized in November 2011 at the University of California, Berkeley Law School on “The Internet in Bello”. See Kate Jastram and Anne Quintin, “The Internet in Bello: Cyber War Law, Ethics & Policy”, summary paper of seminar held on 18 November 2011, Berkeley Law, available at: www.law.berkeley.edu/files/cyberwarfare_seminar--summary_032612.pdf.

37 See Intercross, blog of the ICRC in Washington, DC, available at: http://intercrossblog.icrc.org.

38 The call for participants for the 2015 Workshop is available at: https://jnslp.wordpress.com/.

39 Duke Law Events, “International Humanitarian Law and US–Canada Relations”, 4 October 2013, available at: http://law.duke.edu/events/international-humanitarian-law-and-us-canada-relations/.

40 “Cours panafricain francophone de droit international humanitaire pour les pays francophones d'Afrique”, held every two years, each time in a different West African country.

41 Every five years, South Africa also holds the Advanced Seminar on IHL.

42 There are also national courses available, such as the Annual Summer Course on IHL in China, held in Beijing.

43 In chronological order, they are: Mary Ellen O'Connell, International Law and the Use of Force, Cases and Materials, 2nd ed., Foundation Press, New York, 2009; Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge University Press, New York, 2010; Marco Sassòli, Antoine A. Bouvier and Anne Quintin, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, 3rd ed., ICRC, Geneva, 2011; Geoffrey S. Corn, Victor Hansen, M. Christopher Jenks, Richard Jackson, Eric Talbot Jensen and James A. Schoettler, Jr., The Law of Armed Conflict: An Operational Approach, Wolters Kluwer Law & Business, New York, 2012; and Laurie R. Blank and Gregory P. Noone, International Law and Armed Conflict: Fundamental Principles and Contemporary Challenges in the Law of War, Wolters Kluwer Law & Business, New York, 2013.

44 For reviews of the Solis book, above note 43, see Clarke, Ben, “Gary D. Solis, Law of Armed Conflict: International Humanitarian Law in War (2010)”, Australian International Law Journal, Vol. 17, 2010, p. 287Google Scholar; Hartmann, Jacques, “The Law of Armed Conflict: International Humanitarian Law in War (Book Review)”, Dordic Journal of International Law, Vol. 80, No. 1, 2011, p. 121CrossRefGoogle Scholar; and Orakhelashvili, Alexander, “Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict”, Journal of Conflict & Security Law, Vol. 16, No. 3, 2011, p. 555CrossRefGoogle Scholar. For reviews of Corn et al., above note 43, see Dan E. Stigall, “The Law of Armed Conflict: An Operational Approach”, The Army Lawyer, September 2012, p. 46; Williamson, Jamie A., International Review of the Red Cross, Vol. 94, No. 886, 2012, p. 859Google Scholar. A review of Blank and Noone, above note 43, by Anne Quintin is forthcoming in the Review.

45 International Humanitarian Law Teaching Supplements are produced by the International Humanitarian Law Clinic at Emory University School of Law with the support of the ICRC Regional Delegation for the United States and Canada. Geoffrey S. Corn and Eric T. Jensen, Volume 1: National Security Law and IHL, ed. Laurie Blank, Jamie Williamson and Gary Solis, International Humanitarian Law Clinic at Emory University School of Law, 2011; Beth Van Shaack, Volume 2: International Criminal Law and IHL, ed. Laurie Blank, Anne Quintin and Cécile Aptel, International Humanitarian Law Clinic at Emory Law School, 2013; Sean Watts, Volume 3: Constitutional Law and IHL, ed. Laurie Blank, Anne Quintin and Julian Mortenson, International Humanitarian Law Clinic at Emory University School of Law, 2014. The Supplements are available at: http://law.emory.edu/academics/clinics/international-humanitarian-law-clinic.html.

46 The 2007 Report did not include data on the legal literature, so 2007 was selected as the baseline year.

47 Berkeley Law librarians Marci Hoffman and Edna Lewis searched US legal journal literature published between 2007 and 2013 using the Index to Legal Periodicals and Books (ILP). It should be noted that the 2013 number may be under-inclusive, as ILP may still be indexing articles from 2013. The number of articles in 2012 was somewhat higher, at 260. ILP is available by subscription through the EBSCOHOST platform at: www.ebscohost.com/academic/index-to-legal-periodicals-and-books-full-text. ILP provides coverage of the most important English-language legal information. It includes indexing of over 1,025 legal journals, law reviews, yearbooks, institutes, statutes, and bar association, university and government publications. This index is a basic research tool used by many US law libraries. Other periodical indexes are available, but ILP is generally considered to cover the largest number of academic and scholarly publications. Search terms used are on file with the authors.

48 LawCat, Berkeley Law Library's catalogue, available at: http://lawcat.berkeley.edu/search/X. LawCat was used to represent what a US law school library with a strong international collection would acquire. The searches were limited to materials published between 2007 and 2013 and in English only. Search terms used are on file with the authors.

49 Since there are many collections of working papers available online, the Legal Scholarship Network (available at: http://ssrn.com/en/index.cfm/lsn/) was chosen to provide a representation of the number of working papers made available from 2007 to 2013. However, the search mechanism available through this database is very basic and does not allow for date limitations. The numbers represented for this question are provided to show the growth in this type of literature and should not be considered exact. Also, the numbers include not just scholarly working papers, but also some forthcoming journal articles. Therefore, some of the paper/articles included in this data may also have been counted when searching ILP (see above note 47 and accompanying text). Search terms used are on file with the authors.

50 The blogs most often cited were Opinio Juris, available at: http://opiniojuris.org/; Lawfare, available at: www.lawfareblog.com.

51 The most commonly mentioned was Robert Chesney's [NationalSecurityLaw] Listserv Archive, archived at: http://jnslp.wordpress.com/.

52 In the interest of full disclosure, it should be noted that the 2007 survey allowed for multiple levels of interest, while the 2012 survey asked for a simple “Yes” or “No.” However, combining several 2007 categories indicating positive expressions of interest would approximate the 2012 “Yes” response.

53 Again, anonymous respondents may contribute to schools being represented two or more times, but all known double-counting has been eliminated in the 2012 results.

54 Available at: www.aals.org/member-schools/#nonmember. Because of the focus on civilian instruction, The Judge Advocate General's Legal Center and School was not included in the data collection.

55 The available description of data from 2007 was too ambiguous for a definitive comparison.

56 For most schools this would be the Jessup International Law Moot Court Competition, or Pace Law School's ICC Trial Competition, as only a handful of US law schools have participated in the Jean-Pictet Competition and the online survey was conducted before the inaugural Clara Barton IHL Competition in 2014.

57 Faculty from schools that did not have IHL instruction were also asked if it should be offered. For the very small number (four) of the 2012 survey respondents from such schools, three said yes, while one replied that he/she did not know. This finding was qualitatively similar to that in the 2007 Report, where four out of six respondents said their school should offer IHL, while two said it should not.

58 Editor's note: Since the writing of this article, the online version of this casebook has become available at: www.icrc.org/casebook/.

59 See, for example, the number of IHL-related panels during a recent conference of the International Studies Association (ISA), “ISA'S 55th Annual Convention: Spaces and Places - Geopolitics in an Era of Globalization”, Toronto, 26–29 March 2014, available at: www.isanet.org/Conferences/Toronto2014.aspx.