Customary International Humanitarian Law
Encyclopedia
Customary international humanitarian law is a body of unwritten rules of public international law, which govern conduct during armed conflict.
, like international treaty law, is recognized as a primary source of public international law. While international treaties are written agreements by which States establish certain rules, customary international law consists of unwritten rules which derive from “general practice accepted as law”. Therefore, for a rule of customary international to be established, two elements are required: “an objective one, the repeated behaviour of States ... and a subjective one, the belief that such behaviour depends on a legal obligation (opinio juris sive necessitatis
)”. The objective element is also often referred to as State practice; the subjective element as opinio juris.
(IHL), also known as the law of war or the law of armed conflict, is the area of public international law which aims, “for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare”.
War is as old as mankind and so, in a sense, is IHL. Behaviour during armed conflict “has always been subject to certain principles and customs”, based on the practices of armies around the world. Since the mid-19th century, however, many such rules have been codified by States in international treaties, like the Hague Regulations and Geneva Conventions
. Notwithstanding this increasing codification of IHL, customary rules remain relevant in contemporary armed conflicts.
Furthermore, many of today’s armed conflicts do not take place between States but are of a non-international character. International humanitarian treaty law, however, while highly detailed as regards international armed conflicts, is considerably less developed in relation to non-international armed conflicts. Here, again, customary international humanitarian law can give further guidance.
In 2005, mandated by the States convened at the 26th International Conference of the Red Cross and Red Crescent, and after nearly 10 years of research and consultation, the International Committee of the Red Cross
(ICRC) presented a Study on Customary International Humanitarian Law, published by Cambridge University Press
. Volume I of the Study contains 161 rules assessed to be of customary status, most of them applicable in both international and non-international armed conflicts. Volume II presents the practice which forms the basis of the conclusions in Volume I.
Since August 2010, a free online version of the Study, the ICRC’s Customary IHL Database, is also available. Part One of the database reflects Volume I of the print edition of the Study. Part Two, based on Volume II of the print edition, presents State practice relating to most aspects of IHL, as expressed in national legislation, military manuals, official statements, and case-law, and the practice of other entities such as international organizations and international courts and tribunals. Part Two is updated regularly through a joint project of the ICRC and the British Red Cross Society, based at the Lauterpacht Centre for International Law, University of Cambridge
.
The database is updated on a regular basis. A selection of national practice of 30 countries was added in March 2011. and on 21 November 2011 the ICRC made available its updated collection and analysis of practice from 27 countries – Armenia, Australia, Azerbaijan, Bahrain, Cameroon, the Democratic Republic of the Congo, Fiji, Finland, France, Hungary, Israel, Italy, Jordan, Libya, Nepal, the Netherlands, New Zealand, Oman, Pakistan, Rwanda, South Korea, Sri Lanka, Syria, Thailand, Uganda, Ukraine and the United States of America – relating to armed conflicts and such issues of humanitarian concern as the distinction between combatants and civilians, the use of certain weapons, the protection of internally displaced persons, the legal framework for internment and detention in armed conflict, recruitment of child soldiers, and serious violations of international humanitarian law that amount to war crimes was ..
Customary international law
Customary international lawCustomary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
, like international treaty law, is recognized as a primary source of public international law. While international treaties are written agreements by which States establish certain rules, customary international law consists of unwritten rules which derive from “general practice accepted as law”. Therefore, for a rule of customary international to be established, two elements are required: “an objective one, the repeated behaviour of States ... and a subjective one, the belief that such behaviour depends on a legal obligation (opinio juris sive necessitatis
Opinio juris sive necessitatis
Opinio juris sive necessitatis or simply opinio juris is the belief that an action was carried out because it was a legal obligation. This is in contrast to an action being the result of different cognitive reaction, or behaviors that were habitual to the individual...
)”. The objective element is also often referred to as State practice; the subjective element as opinio juris.
International humanitarian law
International humanitarian lawInternational humanitarian law
International humanitarian law , often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus that comprises "the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It...
(IHL), also known as the law of war or the law of armed conflict, is the area of public international law which aims, “for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare”.
War is as old as mankind and so, in a sense, is IHL. Behaviour during armed conflict “has always been subject to certain principles and customs”, based on the practices of armies around the world. Since the mid-19th century, however, many such rules have been codified by States in international treaties, like the Hague Regulations and Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
. Notwithstanding this increasing codification of IHL, customary rules remain relevant in contemporary armed conflicts.
Current relevance of customary international humanitarian law
Customary international humanitarian law complements the protection provided by international humanitarian treaty law in situations of armed conflict. International treaty law only binds States which are party to a particular treaty; customary international law, on the other hand, is, in general, binding on all States. And while some international humanitarian law treaties, such as the 1949 Geneva Conventions, are today universally ratified, this is not the case for all treaties. Here, customary international humanitarian law can be used to fill gaps in the protection provided in situations of armed conflict.Furthermore, many of today’s armed conflicts do not take place between States but are of a non-international character. International humanitarian treaty law, however, while highly detailed as regards international armed conflicts, is considerably less developed in relation to non-international armed conflicts. Here, again, customary international humanitarian law can give further guidance.
In 2005, mandated by the States convened at the 26th International Conference of the Red Cross and Red Crescent, and after nearly 10 years of research and consultation, the International Committee of the Red Cross
International Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
(ICRC) presented a Study on Customary International Humanitarian Law, published by Cambridge University Press
Cambridge University Press
Cambridge University Press is the publishing business of the University of Cambridge. Granted letters patent by Henry VIII in 1534, it is the world's oldest publishing house, and the second largest university press in the world...
. Volume I of the Study contains 161 rules assessed to be of customary status, most of them applicable in both international and non-international armed conflicts. Volume II presents the practice which forms the basis of the conclusions in Volume I.
Since August 2010, a free online version of the Study, the ICRC’s Customary IHL Database, is also available. Part One of the database reflects Volume I of the print edition of the Study. Part Two, based on Volume II of the print edition, presents State practice relating to most aspects of IHL, as expressed in national legislation, military manuals, official statements, and case-law, and the practice of other entities such as international organizations and international courts and tribunals. Part Two is updated regularly through a joint project of the ICRC and the British Red Cross Society, based at the Lauterpacht Centre for International Law, University of Cambridge
University of Cambridge
The University of Cambridge is a public research university located in Cambridge, United Kingdom. It is the second-oldest university in both the United Kingdom and the English-speaking world , and the seventh-oldest globally...
.
Customary Law database
This database, developed in association with the British Red Cross, was launched by the International Committee of the Red Cross in August 2011. It is designed to be used as a legal reference in international and non-international armed conflicts, including by courts, tribunals and international organizations. .The database is updated on a regular basis. A selection of national practice of 30 countries was added in March 2011. and on 21 November 2011 the ICRC made available its updated collection and analysis of practice from 27 countries – Armenia, Australia, Azerbaijan, Bahrain, Cameroon, the Democratic Republic of the Congo, Fiji, Finland, France, Hungary, Israel, Italy, Jordan, Libya, Nepal, the Netherlands, New Zealand, Oman, Pakistan, Rwanda, South Korea, Sri Lanka, Syria, Thailand, Uganda, Ukraine and the United States of America – relating to armed conflicts and such issues of humanitarian concern as the distinction between combatants and civilians, the use of certain weapons, the protection of internally displaced persons, the legal framework for internment and detention in armed conflict, recruitment of child soldiers, and serious violations of international humanitarian law that amount to war crimes was ..