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Weissbrodt on the Supreme Court & Humanitarian Law

By Lawrence Solum

David Weissbrodt and Nathaniel H. Nesbitt (University of Minnesota Law School and University of Minnesota Law School) have posted The Role of the United States Supreme Court in Interpreting and Developing Humanitarian Law (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

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 United States 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 competent is its analysis? Is the Court institutionally equipped to play a meaningful role in the development of humanitarian law?

This 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, the article argues that while the Court has offered useful and precedential interpretations of humanitarian law, its analysis suffers from a relatively superficial engagement with the Geneva Conventions. In short, the Court is reluctant to probe too deeply into this complex body of law; 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 numerous substantive propositions of humanitarian law and offered novel interpretations of at least one of them. As national and international courts grapple with the implications of international terrorism, the Court will remain an important voice.

Full post as published by Legal Theory Blog on May 25, 2010 (boomark / email).