Table Of ContentCUSTOM AS A SOURCE OF
INTERNATIONAL
HUMANITARIAN LAW
Proceedings of the Conference to Mark the Publication of
the ICRC Study
“Customary International Humanitarian Law”
held in New Delhi, 8–9 December 2005
Edited by
Larry Maybee
Benarji Chakka
ICRC New Delhi
Organised Jointly by:
International Committee of the Red Cross (ICRC)
and
Asian African Legal Consultative Organization (AALCO)
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TABLE OF CONTENTS
Foreword by Vincent Nicod vii
Foreword by Dr. Wafik Z. Kamil xi
Acknowledgements xiii
Introduction 1
INAUGURAL SESSION
Introduction of the Session – Larry Maybee 5
Welcome Address – Vincent Nicod 7
Introductory Remarks – Wafik Z. Kamil 13
Inaugural Address – E. Ahamed 19
OPENING ADDRESS
Introduction of Judge Weeramantry – V.S. Mani 23
The Revival of Customary International Humanitarian
Law – C.G. Weeramantry 25
THE ICRC STUDY ON CUSTOMARY INTERNATIONAL
HUMANITARIAN LAW – AN ASSESSMENT
Introductory Remarks of the Session – Amitabh Mattoo 41
The ICRC Study on Customary International Humanitarian Law –
An Assessment – Jean-Marie Henckaerts 43
Customary International Humanitarian Law: Some First Impressions –
Pemmaraju Srinivasa Rao 53
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TABLE OF CONTENTS
The ICRC Study on Customary International Humanitarian Law –
An Assessment – Djamchid Momtaz 71
KEYNOTE ADDRESS
Introduction of Judge Philippe Kirsch – Wafik Z. Kamil 77
Customary International Humanitarian Law, its Enforcement,
and the Role of the International Criminal Court – Philippe Kirsch 79
THE RELEVANCE OF CUSTOMARY LAW FOR THE
IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN
LAW
Introductory Remarks of the Session – A. Rohan Perera 87
Relevance to the Ratification of IHL Treaties by States
– J.S. Verma 89
Relevance for the National Implementation of IHL
– Christopher Harland 97
Relevance for the Prosecution of Violations of IHL
– Françoise Hampson 103
THE IMPLICATIONS OF CUSTOMARY INTERNATIONAL
HUMANITARIAN LAW FOR THE CONDUCT OF MILITARY
OPERATIONS
Introductory Remarks of the Session – C. Jayaraj 115
Implications for General Military Operations – Titus K. Githiora 117
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TABLE OF CONTENTS
Implications for Peace Keeping Operations – Daphna Shraga 123
Implications for Non-International Armed Conflicts
– Zhu Wenqi 129
THE LEGAL FRAMEWORK FOR THE TREATMENT OF PERSONS
IN ARMED CONFLICT
Introductory Remarks of the Session – Ali Reza Deihim 139
Fundamental Guarantees in International Humanitarian Law
– L.R. Penna 141
The treatment of Persons in Armed Conflict and the Universal
Declaration of Human Rights – Nurhalida Mohamed Khalil 163
Procedural Principles and Safeguards for Internment/Administrative
Detention in Armed Conflict and other Situations of Violence
– Jelena Pejic 197
Closing Remarks - C.G. Weeramantry 221
Question & Answers 229
Study on Customary International Humanitarian Law:
A contribution to the understanding and respect for
the Rule of Law in Armed Conflict – Jean-Marie Henckaerts 257
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FOREWORD BY VINCENT NICOD
Many conflicts, both international and non-international in character,
are raging throughout the world today. Parties to these armed conflicts
are often accused of not obeying the law of war, and terrible atrocities
are committed. Though they may sometimes be ignorant of this law,
belligerents are neither legally nor morally free to make “their own rules”
in a conflict. The modern development of international humanitarian
law (IHL) has created written rules to regulate how wars are fought.
Although there are many different IHL treaties, the difficulty with these
so-called treaty-based rules is that they only apply to those countries
that are parties to the specific treaties that contain them. This results in
a tendency to take a narrow approach to the rules, their application and
interpretation.
There are, however, many long-standing rules of international law
that govern how adversaries should behave in conflicts. Many of them
can be traced to ancient cultures, where they were implemented long
before the notion of humanitarian law treaties ever existed in the western
world. For the last ten years, ICRC legal advisors, with the assistance of
legal experts from around the globe, have undertaken the task of
collecting and studying these humanitarian rules and values, with the
aim of producing a definitive record of the customary law rules that
apply during armed conflict. The ICRC study Customary International
Humanitarian Law, published in March 2005, is the result of this work.
The Customary Law Study is a great achievement; it constitutes the
first comprehensive study on the subject. The Asian regional launch of
the Customary Law Study took place in New Delhi at a conference held
on 8 and 9 December 2005.
The advantage of customary rules of IHL is that they bind all those
who participate in armed conflict, whether they are parties to a specific
treaty or not. In addition, customary law rules are not restricted in their
field of application. Many of them apply to all forms of conflict, whether
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international or non-international. These 161 customary law rules of
warfare bind all belligerents on both sides of a conflict. They also fill the
gaps that exist in the treaty rules applicable in non-international armed
conflicts, including targeting, proportionality, precautions in attack and
the protection of civilians and civilian property.
This is not to say that treaty law is now less important. The entire
body of law should be seen in a holistic way, with both treaty and custom
contributing in near equal parts to assist and protect the victims of armed
conflicts. We in the ICRC urge all states to continue to join with the
majority of the international community who have ratified the key legal
instruments of IHL, such as the 1977 Protocols Additional to the Geneva
Conventions, the Rome Statute for the International Criminal Court and
the Ottawa Treaty banning anti-personnel landmines. We also urge states
to take the steps necessary to implement these treaties, including enacting
domestic legislation. This will allow these laws to be properly enforced
in periods of armed conflict and internal violence, and help ensure better
compliance.
We must all keep in mind, however, that this addition to the body of
humanitarian law is not an end in itself. There must be strong leadership
within governments to ensure the political will exists to enforce the law
and to bring to justice those that fail to respect it. There must be legislative
and judicial measures taken to enable breaches of the law to be repressed.
Those deprived of their freedom and those who are tortured or otherwise
ill-treated as a result of armed conflict, need full international compliance
with all of the norms of IHL, both treaty and customary. What President
Mandela once said of the ICRC can apply to IHL: “it is not so much the
good that you do which counts, it is the evil you prevent from
happening…”
At the ICRC we are pleased to see that this monumental work has
by now been given its due recognition, through launch events around
the world. The ICRC regional Delegation in New Delhi is proud to have
been able to launch this publication in Asia, in collaboration with the
Asian African Legal Consultative Organisation (AALCO). Several of
the experts who contributed to the Customary Law Study participated
in this event and expressed their opinions and views there. This
compendium is the outcome of the proceedings of the conference to
mark the regional launch and it includes the papers they presented there.
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I am therefore pleased to see this compendium published, to be
made available to all people of goodwill whom it will assist by giving
them a reference point to the customary international humanitarian law.
I would like to take this opportunity to congratulate the contributors to
this compendium, for their expertise in contributing to the Study itself,
as well as their generosity in providing their papers for publication.
Mr. Vincent Nicod
Head of Regional Delegation
International Committee of the Red Cross
New Delhi
December 2006
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