Customary International Humanitarian Law: ICRC Rules Issued

After a ten-year process, ICRC published this week its report on the rules of customary international humanitarian law (“CIHL), i.e., customary law governing conduct during war. The full report can be downloaded here. Advance warning: I’ ve been told from a reliable source in Geneva that the bound version weighs in at 300 pounds! State practice takes up one volume; opinio juris (sound familiar?), the sense of legal obligation that makes state practice into customary international law, takes up another volume.

The stated purpose of the report is to provide the rules of customary international humanitarian in order to fill the gap in the current treaty system and determine the rules that apply to:

(1) states that are not parties to the Geneva Conventions of 1949 and both additional protocols thereto and/or are not parties to other conventions regulating the use of certain weapons (e.g., the Biological and Chemical Weapons Conventions; and
(2) wars that are not international in nature, since the major conventions only regulate, more or less, international or interstate conflict.

Needless to say, I haven’t read the entire report, but it is bound to stir up controversy, and not just among those who, like John Bolton, believe CIL is not really law. The report reflects an impressive amount of research into state practice and the conduct of recent wars, and as such is an excellent reference tool, a kind of “restatement” of the laws of war. Lawyers for the Guantanamo detainees will find it particularly helpful, as it sets forth quite clearly the argument that the Geneva Conventions represent, in effect, a legal floor for conduct and that CIHL has expanded beyond the conventions to include a range of other legal norms.