Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-26T07:06:51.110Z Has data issue: false hasContentIssue false
  • English
  • Français

An Exercise in the Development of International Law: The New ICRC Study on Customary International Humanitarian Law

Published online by Cambridge University Press:  06 March 2019

Malcolm MacLaren  and
Felix Schwendimann

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

On 17 March 2005, the President of the International Committee of the Red Cross (ICRC), Jakob Kellenberger, presented a study (hereinafter “the Study”) of customary international humanitarian law (IHL). A decade earlier, the International Conference of the Red Cross and Red Crescent had mandated the ICRC to “prepare […] a report on customary rules of IHL applicable in international [IAC] and non-international armed conflicts [NIAC], and to circulate the report to States and competent international bodies.” The Study's objective was to capture a “photograph” of the existing, hitherto unwritten rules that make up customary IHL. Comprehensive, high-level research into customary IHL followed; the end result of which is undeniably a remarkable feat and a significant contribution to scholarship and debate in this area of international law.

Type
Articles
Information
German Law Journal , Volume 6 , Issue 9 , 01 September 2005 , pp. 1217 - 1242
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., Vols., I & II, 2005).Google Scholar

2 Recommendation II, Annex II: Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23-27 January 1995: Recommendations, available at http://www.icrc.org/web/eng/siteeng0.nsf/html/57JMVT (last visited 11 May 2005). Adopted by Resolution 1, International humanitarian law: From law to action. Report on the follow-up to the International Conference for the Protection of War Victims, Resolutions of the 26th International Conference of the Red Cross and Red Crescent, Geneva, 3-7 December 1995, available at http://www.icrc.org/web/eng/siteeng0.nsf/html/57JMVH (last visited 11 May 2005).Google Scholar

3 ICRC, Customary International Humanitarian Law: Questions & Answers (18 March 2005), available at http://www.icrc.org/web/eng/siteeng0.nsf/html/6BPK3X (last visited 11 May 2005).Google Scholar

4 Sandoz, Yves, Foreword, in I Customary International Humanitarian Law, supra note 1, at xvii. (Sandoz is Member of the ICRC and former Director of its Department of International Law.)Google Scholar

5 For a summary and analysis of one expression of this view, see Volker Heins, Giorgio Agamben and the Current State of Affairs in Humanitarian Law and Human Rights Policy, 6 German Law Journal (GLJ) 845-860 (1 May 2005), at http://www.germanlawjournal.com/pdf/Vol06No05/PDF_Vol_06_No_05_845-860_Articles_Heins.pdf (last visited 11 May 2005).Google Scholar

6 For a summary and analysis of this critique, see Vagts, Detlev F., International Relations Looks at Customary International Law: A Traditionalist's Defence, 15 European Journal of International Law 1031-1040, 1040 (2004).Google Scholar

7 For the leading statement of their view, see Goldsmith, Jack L. & Posner, Eric A., A Theory of Customary International Law, 66 University of Chicago Law Review 1113-1177 (1999).Google Scholar

8 Instead, we refer interested readers to, inter alia, Michael Byers, Introduction: Power, Obligation, and Customary International Law, 11 Duke Journal of Comparative and International Law 81-88 (2001); Mark A. Chinen, Game Theory and Customary International Law: A Response to Professors Goldsmith and Posner, 23 Michigan Journal of International Law 143-189 (2001); Jack L. Goldsmith & Eric A. Posner, The Limits of International Law Chapter 1 (2005).Google Scholar

9 The influence of this view on government policy may take a persuasive and / or personal form. Goldsmith and Posner seek through their writings to narrow the scope of the United States’ international obligations, and Goldsmith has held high office in the current US administration.Google Scholar

10 For a comprehensive collection of the conventional texts, see The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004).Google Scholar

11 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].Google Scholar

12 For more detail, see Meron, Theodor, The Geneva Conventions as Customary Law, 81 American Journal of International Law (AJIL) 348-370 (1987).Google Scholar

13 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 224, para. 84.Google Scholar

14 Customary IHL can also be useful in armed conflicts involving a coalition of States. When the States in question are not party to the same treaties and therefore do not have the same conventional obligations, customary IHL prescribes rules common to all coalition members. These rules can in turn be relied upon as a minimum standard for drafting joint rules of engagement or adopting targeting policies. See ICRC Questions, supra note 3. This approach could have circumvented difficulties experienced by NATO during the Kosovo bombing campaign.Google Scholar

15 Major IHL and related treaties that the United States have yet to ratify include: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609; Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997, 36 ILM 1507; Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90. See ICRC, States Party to the Main Treaties (29 March 2005) available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/party_main_treaties (last visited 17 May 2005).Google Scholar

16 For example, the two Additional Protocols, id. See also the Convention on Certain Conventional Weapons, 10 October 1980, 1342 UNTS 137 (and its protocols); the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 UNTS 240 (and its protocols).Google Scholar

17 As one newspaper report specifically noted, States like Sudan, Sri Lanka and Nepal will no longer be able to claim that they are free from an obligation to respect certain humanitarian standards in their internal conflicts because they are not party to Additional Protocol II (hereinafter “AP II”). Samuel Gardaz, Le CICR dévoile son étude sur le droit coutumier humanitaire, Le Temps (18 March 2005).Google Scholar

18 See infra Section C II.Google Scholar

19 Koroma, Abdul G., Foreword, in I Customary International Humanitarian Law, supra note 1, at xxi.Google Scholar

20 For example, the lack of a treaty regarding the legality of the bombing of civilians led Allied and Axis powers to attempt to justify large-scale air attacks on enemy cities during World War II. As a UK military official described the process, “debate at the international level tends to focus on the identification of military behaviour, or consequences, which cause humanitarian concern whereupon an initiative is then developed to identify changes in the law to meet that concern.” William Boothby, Remarks, The Law of Armed Conflict: Problems and Prospects, Chatham House, London, 18-19 April 2005, Transcripts and Summaries of Presentations and Discussions, 28, available at http://www.riia.org/pdf/research/il/ILParmedconflict.pdf (last visited 15 June 2005). Current concerns include the regulation of explosive remnants of war and anti-vehicle mines.Google Scholar

21 Only one treaty provision of the Geneva Conventions regulates NIAC, namely common Art. 3. While Art. 3 has been extensively and expansively used, it is far from complete. AP II was originally intended to remedy this recognized deficiency, but it is itself relatively narrow in scope and is not universally adhered to.Google Scholar

22 A contemporary example of this effect regards the US administration's interpretation of the Geneva Conventions and its treatment of detainees at Guantanamó Bay. By virtue of the Study, the ICRC will be able to press its argument even more forcefully that these persons, whom the administration refuses to accord the status of prisoners of war (POW), may not according to customary IHL be tortured or otherwise mistreated.Google Scholar

23 Bugnion, François, The International Committee of the Red Cross and the Development of International Humanitarian Law, 5 Chicago Journal of International Law 191, 211-212 (2004).Google Scholar

24 The Study may be used to convince governments to ratify particular treaties. If the treaties in question can be shown to embody customary law, States will presumably be less hesitant to ratify them. The opposite argument can, however, be made as well, namely that a State that is not a party to a treaty will have little incentive to ratify it if the relevant principles have been shown to constitute customary IHL. Daniel Bethlehem, Remarks, supra note 20, at 13.Google Scholar

25 From a historical perspective, this effort to develop IHL further through customary law represents a ‘back-to-the-future’ manoeuvre. The laws of war were originally thrashed out on the battlefield between armies, not in negotiating chambers by state representatives. The laws remained customary in nature until codification began in the mid-nineteenth century.Google Scholar

26 We use the term “editors” to describe Henckaerts and Doswald-Beck. This description is in keeping with the publication information provided and the fact that, though these experts have set down the rules and corresponding opinio juris and usus, they have not authored (i.e. originated) them.Google Scholar

27 Introduction, in I Customary International Humanitarian Law, supra note 1, at xxxvi.Google Scholar

28 Malanczuk, Peter, Akehurst's Modern Introduction to International Law 345 (7th ed. 1997).Google Scholar

29 In 2004, all 19 major armed conflicts were classified as intra-state conflicts. Stockholm International Peace Research Institute (SIPRI), Yearbook 2005 – Armaments, Disarmament and International Security, available at http://yearbook2005.sipri.org/ch2/ch2 (last visited 14 June 2005). In 2003, only two of the 19 major armed conflicts were classified as inter-state conflicts. Stockholm International Peace Research Institute (SIPRI), Yearbook 2004 – Armaments, Disarmament and International Security, available at http://editors.sipri.se/pubs/yb04/ch03.html (last visited 14 June 2005).Google Scholar

30 Henckaerts, Jean-Marie, ICRC Study on Customary Rules of International Humanitarian Law (5 March 2005), available at http://www.cicr.org/web/eng/siteeng0.nsf/htmlall/5MXLAD (last visited 8 June 2005).Google Scholar

31 As the Study's editors noted, abstentions from the conduct in question combined with silence pose a particular problem in determining opinio juris because it has to be proved that the absention is not a coincidence but is based on a legitimate expectation regarding the existence of a prohibition. Introduction, in I Customary International Humanitarian Law, supra note 1, at xxxix-xlii.Google Scholar

32 Id. at xlii.Google Scholar

33 See infra Section C III.Google Scholar

34 Introduction, in I Customary International Humanitarian Law, supra note 1, at xxxvii (emphasis in original).Google Scholar

35 For more detail, see Maurice Mendelson, Remarks, supra note 20, at 21; see also Marco Sassòli, Bedeutung einer Kodifikation für das allgemeine Völkerrecht mit besonderer Betrachtung der Regeln zum Schutze der Zivilbevölkerung vor den Auswirkungen von Feindseligkeiten 52-53 (1990).Google Scholar

36 Introduction, in I Customary International Humanitarian Law, supra note 1, at xxxix. Bethlehem finds this methodological decision unsatisfying: “[v]irtually no account is taken of persistent objection, on grounds that some doubt is said to exist about the validity of the doctrine. But custom, as in the case of treaties, requires the consent of states. […] Objections cannot simply be ignored.” Bethlehem, Remarks, supra note 20, at 14. In rebuttal, one of the editors claims that great weight was given to objector States’ concerns and that the Study was carried out inductively, without preconceptions as to the customary nature of any rules. Louise Doswald-Beck, Remarks, supra note 20, at 23.Google Scholar

37 See Bethlehem, , Remarks, supra note 20, at 13-14.Google Scholar

38 But see rebuttal of the ICRC Director for International Law and Cooperation: “in no circumstances was the objective to circumvent the refusal of certain states to ratify certain treaties […] Indeed, the contrary was true [. … T]he idea of the ICRC was to build on […] consent.” François Bugnion, Remarks, supra note 20, at 83.Google Scholar

39 For example, see the critique of US commentators regarding the ‘custom-ization’ of AP I articles in the Study rules. (See supra Section D.)Google Scholar

40 See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Louise Doswald-Beck ed., 1995).Google Scholar

41 Accordingly, it cannot be concluded that a given treaty rule is not customary because it does not appear as such in the Study.Google Scholar

42 Regarding confrontations between two or more States, see common Art. 2 of the Geneva Conventions or regarding confrontations between government forces and armed opposition groups, see common Art. 3 of the Geneva Conventions.Google Scholar

43 Generally see Gasser, Hans-Peter, International Humanitarian Law: An Introduction, separate print from Humanity for All: The International Red Cross and Red Crescent Movement 22-23 and 70-71 (Hans Haug ed., 1993). For its part, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) defined an armed conflict as existing “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, 35 ILM 1996, 35, para. 70. The Chamber held that in both cases the protection of human beings should be the main criteria. Id. at para. 97.Google Scholar

44 Art. 1(2), AP II.Google Scholar

45 Personal e-mail of 25 April 2005 from same to the authors (on file with the authors).Google Scholar

46 The Study was intended to be a key element in the process of determining these fundamental standards. See Secretary-General, Promotion and Protection of Human Rights – Fundamental standards of humanity, E/CN.4/2002/103, para. 41 (20 December 2001), available at http://www.hri.ca/fortherecord2002/engtext/vol1eng/fshchr.htm (last visited 15 June 2005).Google Scholar

47 For example, the UN must know when the laws of armed conflicts apply to its peacekeeping operations. See Secretary-General, Bulletin on Observance by United Nations Forces of International Humanitarian Law (1999); Daphna Shraga, UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage, 94 American Journal of International law 406, 408-409 (2000).Google Scholar

48 Tadic, supra note 43, at para. 97.Google Scholar

49 This understanding within the state community was also recently codified in the Convention on Certain Conventional Weapons, which was amended in 2001 to extend Convention's scope to NIAC. See also Tadic, supra note 43, at para. 127 (observation of the Appeals Chamber of a closing of the gap between the two regimes).Google Scholar

50 Rules 3, 4, 41, 49, 51, 106, 107, 108, 114, 124 A, 128 A, 128 B, 129 A, 130, 145, 146, 147, in I Customary International Humanitarian Law, supra note 1.Google Scholar

51 Rules 124 B, 126, 128 C, 129 B, 148, 159, in I Customary International Humanitarian Law, supra note 1.Google Scholar

52 “[S]ome rules are indicated as being ‘arguably’ applicable because practice generally pointed in that direction but was less extensive.” Jean-Marie Henckaerts, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict, 87 International Review of the Red Cross (IRRC) 175, Annex (March 2005). Rules 21, 23, 24, 44, 45, 62, 63, 82, in I Customary International Humanitarian Law, supra note 1.Google Scholar

53 Rule 3, in I Customary International Humanitarian Law, supra note 1, at 11-14 (“all members of the armed forces of a conflict party are combatants, except medical and religious personnel”).Google Scholar

54 Regarding the notion of “direct participation in hostilities” and its legal consequences, see the reports of the expert meetings organized by the ICRC and TMC Asser Institute in the Hague in 2003 and 2004, available at http://www.cicr.org/Web/Eng/siteeng0.nsf/iwpList575/459B0FF70176F4E5C1256DDE00572DAA (last visited 9 June 2005).Google Scholar

55 Note, I Customary International Humanitarian Law, supra note 1, at 384.Google Scholar

56 The authorities in power at the end of the hostilities “must”, however, “endeavour to grant the broadest possible amnesty” to participants and detainees except to persons implicated in war crimes. Rule 159, id. at 611-614.Google Scholar

57 Rule 128 A, id. at 451-456.Google Scholar

58 Rule 128 C, id. at 451-456.Google Scholar

59 Rule 1, id. at 3-8.Google Scholar

60 Namely some rules about precautions in attack and against the effects of attacks, see Rules 21, 23 and 24, id. at 65-67 and 71-76.Google Scholar

61 Henckaerts, supra note 52, at 190.Google Scholar

62 It should be noted that the customary rules of IAC and NIAC also differ in the (il-)legality of belligerent reprisals but in favour of higher standards of protection in the latter. During IAC, belligerent reprisals are subject to stringent conditions, where not prohibited by international law. Rule 145, in I Customary International Humanitarian Law, supra note 1, at 513-518. During NIAC, a right to resort to belligerent reprisals is denied outright. Rule 148, id. at 526-529.Google Scholar

63 From a humanitarian perspective, different standards of treatment for the defenceless according to the conflict type are undesirable, frustrating the purpose of the law in most armed conflicts today. From the perspective of the law itself, this distinction is arbitrary, as the traditional typology of armed conflict is no longer factually tenable. Lastly, “for the average person [… distinguishing is] completely absurd. Indeed, how can one claim the right to employ against one's own population means of warfare which one has prohibited for use against an invader?” Sandoz, supra note 4, at xvi. For further commentary, see James G. Stewart, Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict, 85 IRRC 313, 313-314 (June 2003).Google Scholar

64 “[I]t isn't a question as to how you treat the individuals but the claim to be treated as a POW is often an important political claim made by the insurrectionist movement during a NIAC. And if that claim were to be conceded, it would be an enormous political event with huge implications. One can see that in the terrorism field.” Berman, Remarks, supra note 20, at 80.Google Scholar

65 Before the ICJ, Philippe Sands relied on the Study in his statement on behalf of the Democratic Republic of the Congo in the case concerning armed activities on the territory of the Congo. Democratic Republic of the Congo v. Uganda, Public sitting of the ICJ, 25 April 2005, CR 2005/13, 32. ICTY President Theodor Meron cited the Study several times in his decision in Hadzihasanovic. Prosecutor v. Enver Hadzihasanovic and Amir Kubura, Case IT-01-47-AR73.3, Decision on the Interlocutory Appeal of 11 March 2005, footnotes 54, 55, 56, 74, 95, 96 and 99.Google Scholar

66 Bugnion, Remarks, supra note 20, at 84.Google Scholar

67 See one critique of the US (non-)reaction on this basis: “[the] US government does not seem to understand that by saying nothing and allowing its response to drift with the wind over decades, it effectively ratifies the study's questionable views.” Kenneth Anderson, Another ICRC Issue – The New Customary Humanitarian Law Study, in Kenneth Anderson's Law of War and Just War Theory Blog (23 May 2005), available at http://kennethandersonlawofwar.blogspot.com/2005/05/another-icrc-issue-new-customary.html (last visited 12 June 2005).Google Scholar

68 See supra Section B.Google Scholar

69 The Alien Tort Claims Act, 28 U.S.C. § 1350 (1994). See also Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004) (most recent United States Supreme Court statement on the role of the ACTA); William S. Dodge, Bridging Erie: Customary International Law in the U.S. Legal System after Sosa v. Alvarez-Machain, 12 Tulsa Journal of Comparative International Law 87-108 (2004).Google Scholar

70 Among academics, Goldsmith has been especially critical of the cases in this area and the way in which customary international law may become part of national legal systems. See Bradley, Curtis A. & Goldsmith, Jack L., The Current Illegitimacy of International Human Rights Litigation, 66 Fordham Law Review 319-369 (1997). Compare Gerald L. Neuman, Sense and Nonsense about Customary International Law: A Response to Professors Bradley and Goldsmith, 66 Fordham Law Review 371-392 (1997); Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of International Law, 111 Harvard Law Review 2260–2275 (1998); Harold Hongju Koh, Is International Law Really State Law?, 111 Harvard Law Review 1824-1861 (1998).Google Scholar

71 Similarly, see “this immensely expansionary work will make it much, much easier for a judge to conclude that there is a violation of non-treaty, customary international law – a violation of a kind that the US government might well reject as being part of international law.” Anderson, supra note 67.Google Scholar

72 Although the Study's editors had taken the view that the practice of all States must be examined in order to identify a customary rule, they recognized that it makes a great difference which and not only how many States participate in the practice in question. Introduction, in I Customary International Humanitarian Law, supra note 1, at xxxviii-xxxix.Google Scholar

73 For example, see the statement of the Deputy Legal Adviser at the US State Department, who stresses that his country does “not support the prohibition in article 39 (of Additional Protocol I) of the use of enemy emblems and uniforms during military operations”. Rule 62, id. at 216 (citation).Google Scholar

74 Rule 106, id. at 389 (citation).Google Scholar

75 For example, see the assessment of this finding by two former US Justice Department officials. David B. Rivkin Jr. & Lee A. Casey, Friend or Foe? – The International Committee of the Red Cross Should stop championing terrorists or lose U.S Funding, Wall Street Journal (10 June 2005), available at http://www.opinionjournal.com/extra/?id=110006570 (last visited 12 June 2005).Google Scholar

76 An Assistant Judge Advocate General of the US Army did participate at the Chatham House meetings, but his comments about the Study were explicitly made in a personal capacity. He studiously avoided committing the US government as to whether the Study should be accepted as a codification of customary IHL or whether it is rather an academic opinion of what the ICRC would like customary IHL to be. Michael J. Marchand, Remarks, supra note 20, at 38.Google Scholar

77 The authors are grateful to David Kennedy of Harvard Law School for this insight, which was made during private discussions in Zurich on 30 June 2005.Google Scholar

78 The tasks of the ICRC are variously derived from treaty, custom and the Committee's statute. For example, see the mandate given to the ICRC by the international community to work for “the faithful application of international humanitarian law applicable in armed conflicts” and for “the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof.” Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross, Geneva, 23-31 October 1986, Article 5(2)(c) and (g) respectively. Regarding the ICRC's work generally, see François Bugnion, Le Comite International de la Croix-Rouge et la protection des victimes de la guerre Volume 2 (2nd ed., 2002); Yves Sandoz, Réflexions sur la mise en oeuvre du droit international humanitaire et sur le rôle du Comité international de la Croix-Rouge en Ex-Yougoslavie, 3 Schweizerische Zeitschrift für internationales und europäisches Recht 461-490 (1993).Google Scholar

79 Bugnion, supra note 23, at 215.Google Scholar

80 “A lawyer in an office working on the development of international humanitarian law is doing a job different from that of the surgeon treating wounded people or a nutritionist in a refugee camp. But all three are in fact pursuing the same objective, each with his or her place in the indispensable circle of law and humanitarian action.” Sandoz, supra note 4, at xv.Google Scholar

81 Bugnion, supra note 23, at 208.Google Scholar

82 Tadic, supra note 43, at para. 109.Google Scholar

83 Kellenberger, Jakob, Foreword, in I Customary International Humanitarian Law, supra note 1, at xi.Google Scholar

84 See infra Section E.Google Scholar

85 Thürer, Daniel, Comment – The Democratization of Contemporary International Law-Making Processes and the Differentiation of Their Application, in Developments of International Law in Treaty Making 53, 58-59 (Rüdiger Wolfrum & Volker Röben eds., 2005). (Thürer is Member of the ICRC but was speaking in his academic capacity on the occasion.)Google Scholar

86 Rivkin and Casey allege that the ICRC is attempting to change the traditional rules of international law applicable to irregular or “unlawful” combatants: “the ICRC's Customary Law Study now claims that this rule [106] – which the ICRC effectively invented [in preparing AP I] – has become so widely accepted that it is a universally binding customary law norm, binding on the United States even without its consent. […] It is, however, a sleight of hand unworthy of the ICRC. Acceptance of the broad, basic principles contained in Protocol I […] does not imply agreement to Protocol I's detailed and prospective provisions [such as Art. 44].” Rivkin, supra note 75.Google Scholar

87 Kellenberger, supra note 83, at xi.Google Scholar

88 ICRC, Customary law study enhances legal protection of persons affected by armed conflict, Press Release No. 05 / 17 (17 March 2005), available at http://www.cicr.org/web/eng/siteeng0.nsf/html/6AKDPF!OpenDocument (last visited 10 May 2005).Google Scholar

89 See infra Section E.Google Scholar

90 Claim by Ruth Wedgwood, Professor of International Law at Yale University. Cited in Josh Gerstein, Red Cross Has ‘Lost Its Way,’ Study Says, New York Sun (14 June 2005), available at http://www.nysun.com/article/15361 (last visited 16 June 2005).Google Scholar

91 Republican Policy Committee (United States Senate), Are American Interests Being Disserved by the International Committee of the Red Cross? 7 (13 June 2005), available at http://rpc.senate.gov (last visited 16 June 2005).Google Scholar

92 Id. at 7-9. Similarly but more specifically, Rivkin and Casey criticize the Study as an exercise in “political advocacy”. Rivkin, supra note 75. Lastly, see the concurring opinion of a law professor at the American University, Washington, DC. Kenneth Anderson, Lee Casey and David Rivkin on the ICRC, in Kenneth Anderson's Law of War and Just War Theory Blog (11 April 2005), available at http://kennethandersonlawofwar.blogspot.com/2005/04/lee-casey-and-david-rivkin-on-icrc.html (last visited 15 June 2005).Google Scholar

93 It may be the case that the editors realized that the definition of armed conflict was a matter of such disagreement in the state community that attempting to define it in the Study could be counterproductive, resulting in a lowered standard of protection.Google Scholar

94 See supra Section D; infra Section E.Google Scholar

95 ICRC, Study on Customary International Humanitarian Law – Communication Strategy (undated internal memorandum on file with the authors).Google Scholar

96 There is historical precedent for the involvement of public opinion in the process of customary international law. For example, general concerns about asserted violations of customary law played a role in moving government positions during the US Civil War (re the Trent affair) and during the First World War (re German U-boat campaign). Vagts, supra note 6, at 1035.Google Scholar

97 This strategy is in keeping with the ICRC's long-standing effort to demonstrate the universal, timeless nature of IHL, rules of war being found “in all cultures” and “since time immemorial.” Gasser, supra note 43, at 6 and 7. See also Hadia Nusrat, Humanitarian law and Islam, Magazine of the International Red Cross and Red Crescent Movement 24-25 (2005), available at http://www.redcross.int/EN/mag/magazine2005_1/24-25.html (last visited 15 June 2005).Google Scholar

98 Jean Pictet authored the definitive ICRC commentary to the Geneva Conventions. Bethlehem believes that such an analogy would be a mistake, since crystallizing custom is not the same as interpreting a treaty. Bethlehem, Remarks, supra note 20, at 17.Google Scholar

99 The Study's findings are not the result of a formal codification nor is the ICRC seeking their endorsement by States.Google Scholar

100 The ICRC has been promoting the Study by staggered launch events around the world, inter alia in conjunction with Chatham House (London), The Law of Armed Conflict: Problems and Prospects, 18-19 April 2005; McGill University (Montreal), Customary International Humanitarian Law: Challenges, Practices and Debates, 29 September – 1 October 2005; Centre de recherches et d'études sur les droits de l'Homme et le droit humanitaire (Paris), Le droit international humanitaire, spring 2006.Google Scholar

101 For example, see “I would be surprised if a lawyer as smart, savvy and connected as Louise Doswald-Beck was not perfectly aware of what it would be used for in the United States.” Anderson, supra note 67.Google Scholar

102 See alone title of Henckaerts’ article in IRRC, supra note 53.Google Scholar

103 Sandoz, supra note 4, at xv.Google Scholar

104 See ICRC's own claim in this regard upon the Study's presentation: “Customary law study enhances legal protection of persons affected by armed conflict.” ICRC Press Release, supra note 88.Google Scholar

105 Cassesse, Antonio, International Law in a Divided World 285 (1986).Google Scholar

106 The Martens Clause first appeared in the preamble of the Regulations concerning the Laws and Customs of War on Land, Convention (II) with respect to the Laws and Customs of War on Land, The Hague, 29 July 1899. It reads: “[u]ntil a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” Schindler, supra note 10. The Clause has been repeated with slightly different wording in various subsequent treaty provisions.Google Scholar

107 ICJ statements re Martens Clause: its “continuing existence and applicability is not to be doubted” and it “has proved to be an effective means of addressing the rapid evolution of military technology.” Legality, supra note 13, paras. 78 and 87. According to the Study's editors, the Martens Clause may be included in an update. Introduction, I Customary International Humanitarian Law, supra note 1, at xxx. However, such inclusion would presumably be as customary and not ‘conscientious’ law.Google Scholar

108 “Only a few of the states parties [sic] to the 1949 Geneva Conventions have so far met their obligation to transform the Conventions into their national legal systems to ensure the punishment of war crimes and the misuse of the sign of the Red Cross.” Malanczuk, supra note 28, at 363.Google Scholar