Customary international humanitarian law
Presentation by François Bugnion, Director for International Law and Cooperation within the Movement, ICRC, Council of Delegates, Seoul, 16-19 November 2005
Dear friends under the red cross and red crescent emblems,
Ladies and Gentlemen, Dear Colleagues,
"This paper, by its very length, defends itself against the risk of being read", wrote Winston Churchill on the cover page of a report which he considered too long to be read.
With more than 5000 pages, it could easily be said that the study on customary international humanitarian law, recently published by the International Committee of the Red Cross and Cambridge University Press, effectively defends itself against the risk of being read.
However, this study reaches back to the very roots of international humanitarian law : customary international law.
Indeed, international humanitarian law started as a body of customary rules and remained for centuries essentially a set of traditions and customs which armies respected on the field of battle.
All civilizations have developed rules limiting violence in war, and we can trace such rules as far back as we can go in human history. Up till the middle of the nineteenth century, these rules were based exclusively on tradition and custom.
They were respected because they reflected the requirements of military honour, embodied in chivalry codes which existed in various parts of the world;
they were respected because they had been recognized for generations;
they were respected because they were deemed necessary to prevent a drift towards unlimited violence in war;
they were respected because it was considered that they were based on religious tenets and reflected the orders of the divinity.
Such customary rules have existed for centuries, whereas the codification of the law of armed conflict is, by comparison, a fairly recent process, which started 150 years ago.
While international humanitarian law is now largely codified, the relevance of custom should not be overlooked.
Two main reasons may be mentioned in this respect:
First, codification often means agreeing on a minimum common denominator, so that the actual content of treaty-based rules does not adequately cover all the needs of protection that are generated by armed conflicts; this is particularly the case of the treaty-based rules applicable to non international armed conflicts.
Secondly, while all States today are bound by the 1949 Geneva Conventions, this is not yet the case for other treaties, starting with the 1977 Protocols Additional to the Geneva Conventions. While treaties, as a rule, only create obligations for the States that have acceded to them, custom, by definition, applies to all States.
Why did the ICRC undertake this study ?
The 26th International Conference of the Red Cross and Red Crescent, held in Geneva in December 1995, requested the ICRC to:
“(...) prepare, with the assistance of experts in international humanitarian law representing various geographical regions and different legal systems, and in consultation with experts from governments and international organizations, a report on customary rules of international humanitarian law applicable in international and non-international armed conflicts, and to circulate the report to States and competent international bodies.”
How has the study been undertaken ?
Prior to answering this question, it may be necessary to recall what international customary law is.
Article 38 of the Statute of the International Court of Justice defines custom as evidence of a general practice accepted as law;
Customary law therefore results from the convergence of two elements :
- first : a general practice : that States generally adopt the same attitude when they are confronted with similar situations; according to the International Court of Justice, this practice must be " extensive " and " virtually uniform " ;
- second : a legal opinion : it is not enough for States to behave in a generally uniform pattern; it must be demonstrated that they do so because they consider that they are bound to do so :
How can we determine if a given rule is customary ? All manifestations of State practice and legal opinion are relevant for the formation and determination of international custom, in particular :
official statements (such as protests, declarations, etc.),
positions adopted by States in international conferences, for instance unanimity in adopting some treaty provisions, or the prohibition of reservations,
official reports on battlefield behavior,
decisions of national courts
decisions of international courts
Gathering this practice from all over the world was a major challenge and a huge research undertaking for which the ICRC benefited from the contributions of more than 100 academic and gove rnment experts.
The authors relied on forty-seven country reports, reflecting and analyzing the practice of as many States, including the five permanent members of the Security Council and other countries from all over the world, including several countries currently or recently involved in armed conflicts.
In addition, the practice of some forty recent armed conflicts was examined on the basis of ICRC archives.
The military manuals or national legislation of 145 countries were also collected and analyzed.
In their assessment, the authors of the study were assisted by a Steering Committee of 12 eminent law professors of international repute who supervised the whole research.
This complex process explains why the study has taken almost ten years to complete.
The result is in front of you : it consists of two volumes :
volume one : some 650 pages, indicating the methodology used and 161 rules with commentaries; explaining the content and scope of the rules and why they are considered customary;
volume two : more than 4400 pages of documents presenting the evidence of State practice from all geographic regions of the world.
Volume I is being translated into Arabic, Chinese, French, Russian and Spanish.
What are the main conclusions of the study ?
1. First , the study shows that agreement on the rules and principles of international humanitarian law is more widespread than the ratification of treaties shows.
While the Geneva C onventions have been ratified universally, other treaties have not. The latter nevertheless contain a large number of principles and rules that have received widespread support in the international community. The study shows that there exists an extensive body of law common to all States; a set of rules that all States have accepted and that forms customary international humanitarian law.
This is in particular the case for the law on the conduct of hostilities.
2. Second, the study demonstrates that many customary rules apply to both international and non-international armed conflicts. Indeed, out of 161 rules of customary international law identified by the authors, 12 apply only to international armed conflicts, 2 are specifically directed at non-international armed conflicts, while 147 apply to both international and non-international armed conflicts. This conclusion is extremely important since nine out of ten armed conflicts today are non international, but also because the provisions of the Geneva Conventions and Additional Protocol II which apply to non international armed conflicts only offer minimal protection to the victims of these conflicts. States have always been reluctant to accept in diplomatic conferences legal obligations applicable to civil war. The study demonstrates that they have accepted in practice much wider commitments.
3. Third , the study illustrates the universality of international humanitarian law. Not only did the authors take into account the practice of States in all continents, but he study also demonstrates that all parts of the world, all cultures and civilizations have contributed to the development of modern international humanitarian law.
What is the position of the ICRC concerning this study?
Obviously, this study is first and foremost an academic work carried out according to the principles of scientific research; it reflects the authors'view of the present state of customary international humanitarian law, and not what they would like or what the ICRC would like this the law to be; in other words, the authors refrained from wishful thinking and the ICRC respected the academic freedom of the authors and experts who contributed to the study.
This being said, the ICRC strongly believes that this report provides a snapshot of contemporary customary international humanitarian law that is as accurate as possible. The ICRC will therefore definitely refer to it and use it as guidance in its future work to provide protection and assistance to victims of armed conflicts.
This study should not however be seen as the final word on customary international humanitarian law because it is not exhaustive and because the formation of custom is an ongoing process. It is hoped that this study will constitute the basis for a rich discussion on the implementation, clarification and possible development of the law.
What is the added value of the study for National Societies?
We believe the study provides all components of the Movement with a strong platform for discussion with national authorities, armed forces, academic circles and parties to an armed conflict.
We also believe that the study provides National Societies with a powerful tool in their efforts to disseminate international humanitarian law, and we therefore invite National Societies to disseminate the findings of the study as widely as possible.
In this respect, we note with gratitude the very successful cooperation with National Societies in launching the study earlier this year in London, The Hague, Oslo and Montreal and, just this week, in Helsinki a nd Stockholm. Other presentations took place in Washington and New York. This launch process will be sustained in the year ahead with upcoming meetings in Brussels, Addis Ababa, New Delhi, Amman, Paris, Beijing, Kuala Lumpur, Moscow and other places.
The study is in front of you. You have received a copy of it. We hope that it will prove a useful instrument to enhance our understanding of international humanitarian law and the protection of war victims.