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The system took this chore very seriously and spent 8 years on research and expert consultations in social club to produce this study. It seeks to provide a snapshot of custom today that is as authentic equally possible. It is the upshot of the most comprehensive and thorough study of its kind to date. The study should not be seen, nevertheless, equally the final discussion on custom because it is not exhaustive and the formation of customary law is an ongoing process. Nonetheless, the written report constitutes an of import tool for anyone involved with humanitarian law.

This text is for general data purposes just. For a more detailed assay of the report and its implications, see the article in the International Review by Jean-Marie Henckaerts.

Questions

1.What is customary international law?

2.Why was the study on customary international humanitarian law carried out?

3.What does customary international humanitarian law add to existing treaty law?

4.What difference does the report on customary international humanitarian law make for victims?

5.Why is customary international law binding?

half-dozen.Who is jump by customary international humanitarian law?

seven. If a rule is repeatedly broken tin can it still be considered part of customary law?

viii.How is customary international law enforced?

9.How has the report been organized?

ten. How has the cess of the practice been carried out?

11. By whom tin can the report be used?

12. How does the ICRC intend to use this written report?

1. What is customary international law?

Both treaty law and customary international constabulary are sources of international law. Treaties, such as the four Geneva Conventions of 1949, are written conventions in which States formally establish certain rules. Treaties bind only those States which accept expressed their consent to exist spring by them, usually through ratification.

Customary international law, on the other hand, derives from " a general practice accustomed as police " . Such practice can be institute in official accounts of military operations but is likewise reflected in a variety of other official documents, including military manuals, national legislation and example law. The requirement that this practice be " accustomed every bit police force " is often referred to every bit " opinio juris " . This characteristic sets practices required past law apart from practices followed as a matter of policy, for example.

2. Why was the study on customary international humanitarian law carried out?

Rules of customary international constabulary are unwritten and research into State practise is required to determine their existence. For this reason, the 26th International Conference of the Red Cross and Red Crescent, held in December 1995, requested the ICRC to carry out a study in social club to identify, and consequently facilitate the application, of existing rules of customary international humanitarian law.

Therefore, the written report does not create new rules of international humanitarian police force simply rather seeks to provide the most accurate snapshot of existing rules of customary international humanitarian law.

3. What does customary international humanitarian police force add together to existing treaty police?

While the iv Geneva Conventions of 1949 have been ratified universally, other treaties of international humanitarian law have not. This is the example, for example, of the 1977 Boosted Protocols to the Geneva Conventions. The study shows, however, that a number of rules and principles independent in these treaties also exist nether customary police, such as a significant number of rules governing the carry of hostilities and the treatment of persons not or no longer taking a straight part in hostilities. As part of customary international law, these rules and principles are applicable to all States regardless of their adherence to relevant treaties.

In addition, despite the fact that near gimmicky armed conflicts are non-international in nature, treaty police force covering such conflicts remains fairly limited (mainly common Commodity 3 of the iv Geneva Conventions and Additional Protocol Ii). The written report shows, withal, that at that place exist an of import number of customary rules of international humanitarian law that ascertain in much greater detail than treaty law the obligations of parties to a not-international armed conflict. This is notably the case with rules on the comport of hostilities. For example, while treaty law does not expressly prohibit attacks on civilian objects in non-international armed conflicts, such a prohibition has developed nether customary international constabulary.

The report also shows that a big number of customary rules of international humanitarian law are applicative to both international and not-international armed conflicts. As a result, for the awarding of these rules, the qualification of the conflict every bit international or not-international is not relevant. These rules apply in any armed conflict.

Finally, customary international humanitarian law can also be useful in the case of coalition warfare. Contemporary armed conflicts often involve a coalition of States. When us composing such a coalition do not have the same treaty based obligations because they have not ratified the same treaties, customary international humanitarian law represents those rules that are common to all members of the coalition. These rules can exist relied upon as a minimum standard for drafting common rules of date or for adopting targeting policies. It should be borne in listen, yet, that these customary rules cannot weaken the applicative treaty obligations of individual coalition members

four. What departure does the study on customary international humanitarian police make for victims?

Customary international humanitarian constabulary fills in certain gaps in protection provided to victims of armed disharmonize by treaty law. These gaps event either from the lack of ratification of relevant treaties or from the lack of detailed rules on non-international armed conflicts in treaty law. The advantage of customary law is that information technology is not necessary for a State to formally accept a rule in order to be jump past it, as long as the overall State practice on which the rule is based is "widespread, representative and virtually compatible" and accepted as law.

As information technology identifies the rules of customary international humanitarian law, the report helps to ensure better cognition of the applicable rules. Awareness of these rules by those who are required to apply them ensures greater respect for the law. The combined outcome of knowledge of the law and the beingness of possible sanctions, in item those practical past national and international courts, allows international humanitarian law to ensure the protection of persons affected by armed conflict.

5. Why is customary international law binding?

States recognize that treaties and customary international constabulary are sources of international constabulary and, as such, are bounden. This is gear up forth, for example, in the Statute of the International Court of Justice.

1 illustration of the binding nature of customary international law is its application by national and international courts and tribunals.

6. Who is leap past customary international humanitarian constabulary?

Generally, the purpose of international police force is to regulate the relationship between States and, therefo re, it is bounden upon States. This is also true for international humanitarian law, whether treaty or customary, every bit it regulates armed conflicts arising between States.

However, a particular feature of international humanitarian law is that some of its rules regulate armed conflicts occurring betwixt a Country and an armed opposition group or between such groups. The rules that regulate such conflicts are applicable to all parties, whether a State or an armed opposition group. The analysis of State practice shows that many rules of customary international humanitarian law applicable in not-international armed conflicts demark States besides as armed opposition groups.

seven. If a rule is repeatedly broken tin can it still be considered part of customary law?

As with all legal norms, whether domestic or international, they can be violated. This does not mean that the norm is obsolete. When a rule of customary international humanitarian constabulary is violated only such violation is generally condemned past other States or denied by the State concerned, this practice tends to reinforce the existence of the dominion rather than to weaken it. For example, although attacks on civilians occur, these are usually criticised and the political party accused of such attacks will, for example, either deny the facts or argue that the attacks were unintentional. Such condemnation and justification implicitly recognizes the prohibition to attack civilians.

The internationa fifty attention that is often devoted to these violations should not, notwithstanding, detract from the countless instances of compliance with the law that proceed to underpin the beingness of rules of customary international humanitarian law.

eight. How is customary international police force enforced?

In principle, at that place is no divergence in the enforcement of treaty law and customary international law, as both are sources of the aforementioned body of police force.

First and foremost, military commanders take the responsibility to ensure that their troops respect the law. In instance of violation, international humanitarian law tin can be enforced through diplomatic means, including by international organizations, such equally through measures adopted by the Un Security Council. Another means to enforce the law is its application by national and international courts and tribunals, for case the trial of an individual responsible for a violation.

nine. How has the study been organized?

The study encompasses research into State exercise as reflected in national, as well equally international sources. The 161 rules accept been catalogued in half dozen Parts:

Ÿ Principle of stardom

Ÿ Specifically protected persons and objects

Ÿ Specific methods of warfare

Ÿ Weapons

Ÿ Treatment of civilians and persons hors de gainsay

Ÿ Implementation

The publication is divided into two volumes:

Volume I. Rules is a comprehensive assay of the customary rules of international humanitarian constabulary applicable in international and not-international armed conflicts. Of the 161 rules identified, 159 apply in international armed conflicts and 148 apply in non-international armed conflicts.

The rules are accompanied by a commentary which explains why the rule in question was found to be customary. Most commentaries also accost issues such every bit the interpretation of the rule, the definition of keywords contained in the rule or examples of the application of the dominion. Information technology should be stressed, still, that only the blackness letter rules are meant to reflect customary police, not the additional elements independent in the commentaries.

Volume Two. Practice contains, for each aspect of international humanitarian law, a summary of relevant treaty law and of relevant State practise, including reports on the behaviour of parties to an armed conflict, military manuals, national legislation, national case-law and official statements, also as do of international organizations, international conferences and international judicial and quasi-judicial bodies.

Together, both volumes comprise k ore than v,000 pages. The written report was edited by Jean-Marie Henckaerts of the ICRC Legal Division and Louise Doswald-Beck of the Graduate Institute of International Studies and the University Eye for International Humanitarian Law in Geneva. Information technology is published by Cambridge University Press and is on sale as part of their catalogue.

x. How has the assessment of the practice been carried out?

3 different types of enquiry were conducted:

Individual experts or teams of experts researched State practice in near 50 countries (9 in Africa, 15 in Asia, 11 in Europe, 11 in the Americas, and 1 in Australasia) across the world. The Steering Committee of the written report, composed of 12 eminent international law professors, selected the countries based on geographic representation, equally well equally recent experience of different kinds of armed conflict. The study drew also on the military manuals, national legislation, national instance-law and official statements of boosted States not withal covered by an private expert.

In addition, six teams of experts researched international sources of practice focusing on the parts of the study listed above.

The research was complemented past an assay of the ICRC archives relating to some 40 recent armed conflicts around the world. In general, these were selected so that countries not all the same covered in the research on State exercise could be included.

The research conducted was comprehensive, simply in the nature of things it cannot merits to be exhaustive. It focused primarily on practice from the last thirty years to ensure that the study adequately reflects contemporary customary international humanitarian law.

The research results and successive drafts of the report were submitted to the Steering Committee and reviewed past a group of academic and governmental experts invited to comment in their personal capacity.

11. By whom can the study be used?

The study tin can be used by anyone who has an involvement in international humanitarian law. This includes academics, non-governmental organizations and international organizations. The study can, all the same, be particularly useful in the twenty-four hour period to day work of judicial and governmental organs dealing with situations of armed conflict.

The report can assist international courts and tribunals in their work as they often have to examine State exercise in social club to determine whether a rule of customary international humanitarian law exists concerning the specific issue before them.

The study may also be useful for governments as it offers guidance when dealing with problems related to international humanitarian constabulary.

Finally, the study may be useful for military lawyers. Information technology can serve as background material when drafting military manuals or rules of engagement, and can also be useful in the da y-to-day assay of the legality of specific military actions.

12. How does the ICRC intend to use this study?

The ICRC intends to use the written report in its work to protect and assist victims of armed conflict worldwide. Where relevant, information technology will remind parties to the conflict of their customary obligations to respect persons not or no longer taking a direct part in hostilities.

To enhance awareness of customary international humanitarian police, the ICRC will use the study as part of its regular efforts to familiarise States, armed services, armed opposition groups and civil club with international humanitarian constabulary. Every bit a first step, the ICRC and partner institutions volition organize a series of launch events across the world to present the written report to legal experts and State representatives.

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Source: https://www.icrc.org/en/doc/resources/documents/misc/customary-law-q-and-a-150805.htm

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