ICRC's Jean-Marie Henckaerts responds to my comments on ICRC customary law study

Jean-Marie Henckaerts, legal advisor to the ICRC and one of the two authors, along with Louise Doswald-Beck, of the new ICRC study on Customary International Humanitarian Law, has very kindly written a response to an earlier post of mine, here, in which I offered some initial comments on the Study. I should emphasize, those comments are preliminary, first-cut blog comments - once past the current book project on UN reform and global governance, I will be doing a substantive review of the Study for the Hoover Institution's Policy Review. But I want to thank Jean-Marie for taking the time to offer a very serious discussion of some of the criticisms I offered - and which I will be thinking about very hard over the next few months. I also want to again reiterate what an extraordinary scholarly achievement the Study is - you have to read the entire thing to understand just what an undertaking it is. So here are Jean-Marie's comments. I hope they get very wide circulation in the world of international humanitarian law.)

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Comments on Professor Anderson's initial reaction to the ICRC Study on Customary International Humanitarian Law

Geneva, 19 January 2006

Methodology

With respect to your question whether the Study privileges the written and verbal aspects of state practice over what states actually do in actual wars, the following points can be raised:

A. The study has not looked only at verbal acts of State practice.

1. Official reports on the conduct of actual wars have been included to the extent that they were available, e.g. the report by the US Department of Defence to the US Congress on the conduct of the Gulf War.

2. In addition, numerous instances of what appear to be verbal acts of State practice do in fact describe practice in actual wars. This is particularly the case for military orders, instructions and manuals which reflect what armed forces are instructed and trained to do and what they end up doing most of the time in actual wars. We often lose sight of this fact because the media and others focus so much on the alleged violations of those documents. For example, the best way by which to describe the many instances of humane treatment of prisoners by US troops in its recent wars in Afghanistan and Iraq is either by reference to an official report on those conflicts (see A.1) describing the required treatment of prisoners or by reference to a military order or a manual prescribing such treatment. Other reports, for example those relating to ill-treatment of prisoners, have to be treated differently, namely as descriptions of violations (see below).

B. An accurate snapshot of customary IHL does not merely require a description of what parties "actually do in actual wars". This is so because customary international law is formed by a general practice accepted as law. The latter element is often referred to as "opinio juris". The requirement of a general practice, combined with evidence that this practice conforms to a legal obligation has two important implications:

1. To the extent that field practice is not official and does not represent the legal conviction of the State concerned, it does not count. This implies, in particular, that if actual practice is generally seen as a violation of existing rules, this practice is not of a nature to modify existing rules. That is why notwithstanding numerous reports of, for example, attacks against civilians, pillage and sexual violence these acts are still prohibited under customary international law. The conclusion that these acts are considered to be violations of existing rules can be derived i.a. from a number of verbal acts, such as legislation, case-law and official statements. These verbal acts are therefore important and have to be considered to get the full and correct picture of customary international law.

2. The opposite is also true. Although States may in practice abstain from engaging in certain behaviour, through their verbal acts, qualifying their abstention as mere policy not based on a legal obligation to abstain, they can reserve their right to engage in those acts in the future. That is why attacks against works and installations containing dangerous forces – although seldom or never resorted to in the last twenty years – would still be considered lawful by States in case they constitute military objectives and sufficient precautions are taken. If mere battlefield behaviour were examined such targets would have to be considered off-limit. The same is true for nuclear weapons: on the basis of a mere consideration of battlefield practice, nuclear weapons would have to be considered unlawful – a position clearly not shared by the nuclear powers. This shows that verbal acts have an important impact on how battlefield practice has to be looked at.

In conclusion, while opinio juris alone cannot create custom, practice alone cannot create custom either. Both elements are required and were looked for in the Study. It seems to us therefore that on methodological issues we are actually more in agreement than in disagreement.


Substance

With respect to some of the substantive comments, the following remarks can be made, which indicate again that we are more in agreement actually than in disagreement:

Rule 54. Attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population is prohibited.

Contrary to what is asserted, this rule is subject to exceptions. They are addressed in the commentary but admittedly they should have been mentioned in the rule ("in principle" or "subject to exception"). The rule was never meant to be absolute or to go further than Additional Protocol I. George Aldrich first raised this comment at the Hague launch and we agree with him on this issue.

Rule 106. Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. If they fail to do so, they do not have the right to prisoner-of-war status.

It has been suggested that (a) this rule goes beyond Protocol I or that (b) it elevates the relaxed standards of distinction found in Article 44(3), second sentence, to the status of customary law. Neither suggestion is correct, or at least not as such intended:

(a) Beyond Protocol I: This suggestion is based on the fact that in Protocol I, Article 44 has to be read in conjunction with Article 43. In other words, not any combatant who distinguishes him/herself is entitled to POW status, but only members of (State) armed forces. The term "combatants" in Rule 106 is limited in this sense as it is used in the sense defined in Rules 3 and 4 but admittedly this could have been stated more clearly. It was never the intention to go beyond Protocol I.

(b) Relaxed standards customary: This cannot be the conclusion of anyone reading the commentary. The rule is phrased in general terms and does not indicate exactly how a combatant has to distinguish. It is beyond doubt that a combatant complying with the standards in Article 4 of GC III does properly distinguish. Whether the relaxed standards that have been introduced in Article 44(3), second sentence, of Protocol I for exceptional situations (i.e. for resistance and liberation movements) are customary is explained in full detail in the commentary and that discussion is inconclusive. In other words, it is not concluded that it is customary.

For these and other reasons the study does not support the assertion that all of Protocol I is customary. Other examples which indicate that the study does not support the customary nature of Protocol I as a whole include the following. First, the study does not say anything about the customary nature of a number of provisions, as they are not as such addressed in the study:

- Article 1(4)
- Article 36 (new weapons)
- Article 45 (presumption of POW status)
- Articles 61–67 (civil defence)

Secondly, the study actually concludes that a number of rules are not customary:

- Articles 24–31 (medical aircraft)
- Article 50(1), second sentence (rule of doubt)
- Article 51(6) (reprisals against civilians)
- Article 56 (works and installations containing dangerous forces)

The fact that numerous rules of Protocol I are customary today should not be surprising, as many of them were already customary in 1977. In important respects, Protocol I was a codification of customary norms. It is true, on the other hand, that a number of provisions in the Protocol were new in 1977 but have in the mean time become customary because they have been extensively and uniformly accepted in practice. And as the study clearly shows, a number of provisions have not become customary because they are not uniformly accepted in practice.

We therefore think that the Study has approached Protocol I, and for that matter any other treaty, in a cautious manner and has not assumed that a rule is customary merely because it is contained in a widely ratified treaty. As stated in the introduction:

"This study takes the cautious approach that widespread ratification is only an indication and has to be assessed in relation to other elements of practice, in particular the practice of States not party to the treaty in question. Consistent practice of States not party has been considered as important positive evidence. Contrary practice of States not party, however, has been considered as important negative evidence. The practice of States party to a treaty vis-à-vis States not party is also particularly relevant."


Conclusion

In conclusion, we would like to underline that the ICRC was requested by States to undertake this study, in order to assist them in the complicated task of identifying custom. The organisation took this mandate very seriously and spent nearly 10 years on research and consultation. This study represents, therefore, our best possible effort in providing a snapshot of customary international humanitarian law that is as accurate as possible.

Jean-Marie Henckaerts
Legal Adviser
ICRC Legal Division