By David Weissbrodt & Nathaniel H. Nesbitt. Full text here.
In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the U.S. Supreme Court. Though only in a small number of cases, the Court has relied on humanitarian law principles and treaties from the early days of the Republic to the “war on terrorism.” In what ways does the Court invoke this body of law and how thorough is its analysis? Is the Court institutionally equipped to play a meaningful role in the development of humanitarian law?
The Article assesses the historical, current, and potential role of the Court in interpreting and developing humanitarian law. Through a comprehensive examination of the Court’s humanitarian law jurisprudence, it argues that while the Court has offered useful and precedential interpretations of humanitarian law, its analysis suffers from a relatively superficial engagement with the Hague and Geneva Conventions. In short, the Court is reluctant to probe too deeply into this complex body of law and its reliance on humanitarian law is often minimal and sometimes haphazard. Despite these shortcomings, the Court has an important role to play. Throughout its history, but most notably in the years after September 11, 2001, the Court has unearthed various substantive propositions of humanitarian law and offered a novel interpretation of at least one of them, specifically Common Article 3 of the 1949 Geneva Conventions pertaining to transnational armed conflicts involving terrorists. As national and international courts grapple with the implications of international terrorism, the Court will remain an important voice.