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Custom as a source of international humanitarian law

14-09-2007

Proceedings of the Conference to Mark the Publication of the ICRC Study “Customary International Humanitarian Law” held in New Delhi, 8–9 December 2005, organised jointly by the International Committee of the Red Cross (ICRC) and the Asian African Legal Consultative Organization (AALCO).

   

 
   
   
 
   
    The International Committee of the Red Cross (ICRC) published its ground-breaking study on Customary International Humanitarian Law in March 2005. The Customary Law Study was undertaken by the ICRC at the request of the 26th International Conference on the Red Cross and Red Crescent movement in December 1995. The Study, which was prepared with the assistance of a group of International Humanitarian Law (IHL) experts representing more than 50 countries contains the customary rules of IHL that are applicable in international and noninternational armed conflicts. The main objective of the Study was to overcome some of the problems related to the application of IHL treaties and to fill some of the gaps in the treaty-based IHL rules applicable in non-international armed conflicts, which comprise the majority of the armed conflicts in the world today. The ultimate aim is of course to improve compliance with the rules of IHL, in order to reduce unnecessary suffering and provide better protection for the victims of armed conflict.

The ICRC Customary Law Study was a monumental undertaking, taking nearly 10 years to complete. Its au thors and all those who contributed to it can be justifiably proud of their accomplishment. It represents the first time that an attempt has been made to produce, in written form, the customary law rules that are applicable in armed conflicts. The Customary Law Study consists of two volumes. Volume one, consisting of approximately 600 pages, contains the IHL rules that have been determined to be customary in nature, along with commentary on each of the rules. Volume two contains an exhaustive analysis of state practice, totalling more than 4000 pages. The Study was compiled with the assistance of experts representing more than 50 countries, including 10 countries in Asia. In all, State practice from 148 countries was analysed. The results of the Study are both remarkable and encouraging.

The Customary Law Study concludes that many of the fundamental principles and rules of IHL are customary in nature and, further, that most are applicable in both international and non-international armed conflicts. Importantly, this includes the rules concerning the conduct of hostilities, such as the principles of distinction, proportionality, the notions of military objective, protection of the civilian population and precautions in the attack. The Study concludes that of the 161 rules determined to be customary, 147 are applicable in non-international as well as international armed conflicts. Further, these rules are binding on both sides to a conflict, whether government forces or rebel/insurgent groups. This is indeed reason for optimism, particularly given the lack of IHL treaty-based rules that are applicable to non-international armed conflicts.

The Study represents a significant milestone in international law and its publication comes at a critical time in the development of IHL. Over the past five years, since the tragic events of September 11, 2001 and the so-called “war against terrorism” that resulted, IHL has been the subject of intense scrutiny and interna tional debate. These events have highlighted the continuing importance of international humanitarian law in today’s world; they have also exposed certain weaknesses, including gaps in coverage and areas of IHL that urgently require further definition and development. We hope that the international attention and debate that has been focused on IHL during the past five years will ultimately result in an increased awareness of the rules of international humanitarian law that apply in all armed conflicts. It is further hoped that this attention will act as a catalyst for the positive development of international humanitarian law, where required. This development is particularly needed in non-international armed conflicts where the treatybased rules are relatively few.

The publication of the Customary Law Study is, however, only the first step. To have the desired impact the Study will need to be distributed widely, studied and critically analysed by various sectors of society, including academics, government officials, the military and, of course, the legal profession, including the judiciary. Academic writings and its use by judges in particular will be critical to the success of the Study. To be effective, the Study will need to become a credible and indispensable tool used by courts and tribunals to guide them in their decisions. Unless the Study is seriously considered by judges of national and international courts and tribunals, it will not effectively influence IHL, nor will it have the desired effect, which is to improve compliance and respect for IHL.

Since the ICRC Customary Law Study was published in March 2005, there have been various events held around the world to mark its publication. These have included launch events in Geneva, London, The Hague, Brussels, Washington, New York, Moscow, Montreal, Stockholm, Maxico City, Nairobi, Addis Ababa and Beijing. The launch event in New Delhi in December 2005 was, however, unique as it was the first trul y regional launch. It was also the first launch event that provided a platform for senior government officials and military officers from 23 different countries to discuss the Customary Law Study, its relevance and implication for States.

The Customary Law Study is particularly important and relevant to Asia. History shows that this region has been prone to armed conflicts and other situations of armed violence. Countries in the region also have a rather weak record of ratification of IHL treaties and very few countries have taken the steps necessary to implement their IHL treaty obligations into domestic law. The application of customary rules of IHL is, therefore, very important in order to regulate armed conflicts for many countries in this region. Customary Law can help fill the gaps for those countries currently engaged in non-international armed conflicts, but this will require more than simply the publication of the Customary Law Study. It will take considerable effort to convince the relevant authorities to accept that they are legally bound by customary law rules. This will involve a great deal of dissemination and education regarding customary law generally and customary IHL rules specifically. It cannot be taken for granted that the various government forces and armed groups will automatically accept the application of customary law rules to their conflicts, let alone understand how to give them practical effect. Countries will need to review their domestic legislation to ensure their laws acknowledge these rules and that their courts can enforce them. Military orders and directives will need to be changed to incorporate these rules, and instructions issued to ensure they are complied with. Training manuals will need to be changed to reflect customary law and incorporate it into their operations.

The Asian regional launch in New Delhi was an important step in this process. It not only publicised the Study, it created general awareness and gene rated discussion on some of the important IHL issues that are contained in the Study. The legal experts that were invited to speak at the regional launch provided excellent analyses and insights into the Study. All the speakers are internationally recognised experts; their presentations were made more relevant because several of them were involved in the actual preparation of the Study, either as members of the steering committee, regional research teams or as governmental experts. They highlighted the main achievements of the Study and confirmed its importance to the future development of IHL, but their presentations also raised some of the thornier issues, including matters that were not dealt with in the Study, and they made important recommendations for future work in this area. Judge Weeramantry provided a unique insight into the importance of customary law, from the perspective of one who has considerable academic as well as practical experience in this area as a Judge of the International Court of Justice.

During the Conference the speakers provided the participants with food for thought on many issues, as well as ideas for future research and work in this area. We are very fortunate that all of the speakers have consented to the ICRC Regional Delegation for South Asia reproducing their papers in this publication, which is a compendium of the proceedings of the Conference to Mark the Publication of the ICRC Study on “Customary International Humanitarian Law” held in New Delhi on 8-9 December 2005. We are confident that these papers will prove to be valuable source of information about the Customary Law Study for those who wish to study it further, whether for academic purposes or in their professional legal practices.

 

To request a copy of this book, please contact:
  ICRC Regional Delegation for South Asia
  47 Sunder Nagar
  New Delhi 110 003, India
  Tel: + 91 11 422 110 00
  Fax: +91 11 422 110 68