Customary International Humanitarian Law Research Articles

Africa's toy soldiers, non-state armed groups, and ‘voluntary’ recruitment

Armed conflict on the African continent has witnessed increasing recruitment of child soldiers, often at the hands of non-state armed groups. Unfortunately this practice continues unabated in the face of legal obligations prohibiting the recruitment of child soldiers under international humanitarian law, and international and regional human rights law. While international condemnation of the practice has led to attempts to increase the minimum age for recruitment to 18, a disjuncture persists between the legal obligations states sign up to, and the actual enforcement of these prohibitions at a domestic level. International criminal law jurisprudence emanating from the Special Court for Sierra Leone and the International Criminal Court is being monitored closely, as these courts seek to enforce the prohibition in all armed conflicts, and against both state actors and non-state armed groups. International humanitarian law only protects child soldiers who have been unlawfully recruited. In this piece, the authors take a closer look at what amounts to unlawful recruitment in light of customary international humanitarian law, since this body of law also binds non-state actors, even without further criminalising legislation at a domestic level. Moreover, the article briefly explores whether a child can ever void this protected status by volunteering to participate directly in hostilities.

The Proportionality Principle in Operation: Methodological Limitations of Empirical Research and the Need for Transparency

The principle of proportionality, notoriously obscure in application and subjective in interpretation, has been enforced so rarely as to call into question its potency as a meaningful international legal standard. Nonetheless, international criminal tribunals, academics, and the ICRC's monumental study on customary international humanitarian law all confidently proclaim the principle as embedded in the customary international law applicable to both international and non-international armed conflicts. To assess whether these claims are accurate, and to flesh out how states interpret the principle in practice, the author and a colleague have undertaken a long-term, multinational empirical study of state practice in interpreting and enforcing the proportionality principle. This article discusses the methodological options available and explains the one chosen for the proportionality study. The limitations of the study, in spite of its deliberate methodology, suggest that the debilities of the proportionality principle may not be conceptual as much as a byproduct of unnecessary military secrecy. This article concludes that greater transparency in state compliance with the rule of discrimination and the principle of proportionality would, at least, facilitate an understanding of how the hitherto obscure principle operates in practice and, at best, could create systemic effects that would decrease the dangers to civilians in armed conflicts.

Taking prisoners: reviewing the international humanitarian law grounds for deprivation of liberty by armed opposition groups

AbstractWhile detention by armed opposition groups in non-international armed conflict is a reality that is foreseen and not prohibited by international humanitarian law, the grounds upon which it may take place are not defined. This article looks more closely at the customary international humanitarian law prohibition on arbitrary deprivation of liberty, and how it can apply to armed opposition groups in a manner that makes compliance realistic. It focuses on the legal bases upon which armed opposition groups may detain persons who are taken into custody in order to remove them from hostilities or for security purposes. An approach to detention by armed opposition groups based on the principles of international humanitarian law applicable to international armed conflicts is explored and its limitations defined.

THE INTERNATIONAL LAW OF NAVAL BLOCKADE AND ISRAEL'S INTERCEPTION OF THE MAVI MARMARA

In this article I discuss the legality of Israel’s interception of the Mavi Marmara on 31 May 2010. Although Israel’s stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on 31 May 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel’s use of force to capture the vessel went beyond what was necessary in the circumstances.

The applicability of international humanitarian law to organized armed groups

AbstractWhile it is generally accepted today that international humanitarian law (IHL) is binding on organized armed groups, it is less clear why that is so and how the binding force of IHL on organized armed groups is to be construed. A number of explanations for that binding force have been offered. The present contribution critically examines five such explanations, namely that organized armed groups are bound via the state on whose territory they operate; that organized armed groups are bound because their members are bound by IHL as individuals; that norms of IHL are binding on organized armed groups by virtue of the fact that they exercisede factogovernmental functions; that customary IHL is applicable to organized armed groups because of the (limited) international legal personality that they possess; and that organized armed groups are bound by IHL because they have consented thereto.

Re-envisaging the International Law of Internal Armed Conflict: A Reply to Sandesh Sivakumaran

The prevailing view of the form which the effort to regulate non-international armed conflicts should take has been summarized by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic interlocutory appeal on jurisdiction: �[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife�. 1 This mirroring approach of emulating the laws applicable in international armed conflicts in the non-international context was subsequently adopted by the drafters of the Rome Statute of the International Criminal Court in 1998; the drafters chose to include a list of war crimes applicable in cases of non-international armed conflicts which resembled (though was still narrower than) the list of crimes applicable in international conflicts. The recent Kampala ICC review conference expanded the non-international crimes list, further narrowing the gap between the �international� and the �non-international� lists of crimes. 2 Taking a similar position, the 2005 study on customary international humanitarian law (IHL) published by the International Committee of the Red Cross concluded that all but a handful of the rules identified as customary applied in international and non-international armed conflicts equally. 3 Given the traditional resistance by states to assuming the same degree and range of constraints which apply in international armed conflicts in internal ones, humanitarian advocates have sought to advance the regulation of internal armed conflicts by supplementing IHL with norms borrowed from international criminal law (ICL) and international human rights laws (IHRL). The resulting international law of internal armed conflicts has thus been a patchwork of norms which ostensibly apply to all non-international armed conflicts, drawn from the IHL of international conflicts, ICL, and IHRL, often proving to be incoherent, unworkable, and ineffective.

The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of 'Murder in Violation of the Law of War'

This article examines the legal origins of ‘murder in violation of the law of war’, an offence defined in the US Military Commissions Act (MCA) and resorted to in the case against Salim Ahmed Hamdan. Hamdan was acquitted of conspiring to commit this offence based in part on a questionable legal instruction. The acquittal may have been proper under a correct view of the law. Nevertheless, the specific context in which this offence was alleged, combined with the judge's instruction, highlights key aspects of the US approach to the prosecution of unprivileged fighters for a ‘law of war violation’. This approach, which is substantially represented by the US Supreme Court's judgment in ex parte Quirin, has been criticized by International Humanitarian Law (IHL) scholars as an erroneous view of customary IHL. However, close analysis of the legal and historical context in which this approach developed reveals that ‘murder in violation of the law of war’ is a municipal US offence that represents an English common law implementation of the law of nations. This article explains why reading this offence to incorporate IHL war crimes, as Hamdan's judge did, is inappropriate in the context of the MCA and Hamdan's case. It then demonstrates that the authorities relied upon by the Quirin Court, the Lieber Code and a treatise by authoritative US military law commentator, William Winthrop, understood punishment for law of war violations to be permitted by the law of nations but imposed under municipal law. Thus, ‘murder in violation of the law of war’ is properly viewed as a municipal, common law offence punishing unprivileged fighters. In future studies the author will address the appropriateness of prescribing and enforcing this municipal offence in extraterritorial armed conflict.

Perspectives on the ICRC Study on Customary International Humanitarian Law and The Handbook of International Humanitarian Law

Journal Article Perspectives on the ICRC Study on Customary International Humanitarian Law and The Handbook of International Humanitarian Law Get access Alexander Orakhelashvili Alexander Orakhelashvili British Institute of International and Comparative Law Search for other works by this author on: Oxford Academic Google Scholar British Yearbook of International Law, Volume 79, Issue 1, 2008, Pages 371–378, https://doi.org/10.1093/bybil/79.1.371 Published: 01 November 2009

Customary International Humanitarian Law: Taking Stock of the ICRC Study

AbstractAlthough the 1949 Geneva Conventions have now been universally ratified, the same is not the case for other treaties of international humanitarian law. As a result, customary international humanitarian law continues to be relevant today. This was clearly recognized in 1995 when States party to the Geneva Conventions mandated the ICRC to carry out a study on customary rules of international humanitarian law applicable in international and non-international armed conflicts. This study was published in 2005 after widespread research and consultations. This article takes stock of the impact of the study and discusses some of the salient features of the methodology of assessing custom. It also briefly describes the current effort to update the practice underlying the Study.

The Internal Legal Order of the European Union as a Complementary Framework for its Obligations under IHL

When exploring the sources of International Humanitarian Law (IHL) obligations of multinational peacekeeping forces, legal scholars have thus far focused mainly on the UN (and, to a lesser extent, NATO), whilst other organizations have remained largely in the shadows. Whereas the UN Secretary-General's Bulletin on the Observance by UN Forces of International Humanitarian Law has been widely debated and extensively investigated, little or no attention has been paid to self-regulatory solutions adopted by other international and regional organizations.This Article focuses on the European Union (EU), holding that this regional organization—by virtue of its sui generis nature and of its increasing engagement in the field of crisis management—can be regarded as one of the most interesting newcomers to the realm of jus in bello. More specifically, it looks at the EU's internal legal order with a view to verifying whether and to what extent it may complement customary IHL in regulating the conduct of the EU as a military actor. The Article surveys the primary and secondary sources of EU legislation which may prima facie spell out obligations for the EU-led troops engaged in European Security and Defence Policy military operations. Finally, the Article seeks to draw some broader conclusions on the nature of the relationship between EU law and IHL, as well as on the complementarity and inherent normative value of their sources.

MISTREATMENT OF THE WOUNDED, SICK AND SHIPWRECKED BY THE ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW

AbstractIn 2005, the International Committee of the Red Cross (ICRC) completed a ten-year study on customary international humanitarian law, based on an assessment of the State practice of over 150 nations over the preceding thirty years. Somewhat surprisingly, but perhaps owing to the sheer size of theICRC Study, only two states have officially responded to the ICRC: the United States and Israel. Although an analysis of the US response is beyond the scope of this paper, it generally criticizes theICRC Study'sunorthodox methodology, including both the State practice it considered, and its lack of proof ofopinio juris.The ICRC is a venerable organization, traditionally viewed as the guardian of international humanitarian law. Its study is a monumental work compiling a surfeit of State practice. Nevertheless, theICRC Studyarticulates ‘rules’ that are not sustainable under the traditional theory of customary international law formation, as may be seen by the examination in Section 3 of the three seemingly uncontroversial rules proposed for handling the wounded, sick and shipwrecked.

The Role of Persistent Objection in International Humanitarian Law

AbstractThe publication of the ICRC Customary International Humanitarian Law encouraged a debate on the role of the doctrine of persistent objection in international humanitarian law. After setting out the background and meaning of this doctrine, this article will use the examples of belligerent reprisals against civilians and the protection of the environment in light of the use of nuclear weapons to show that although persistent objection is relied upon in international humanitarian law, the dictates of the principles of humanity and public conscience mean that it is less accepted and respected than in other areas of international law. This despite the fact that there are no express limitations on the application of this doctrine to international humanitarian law.

Current Value of Customary International Humanitarian Law

Current Value of Customary International Humanitarian Law

Accountability for genocide and other gross human rights violations: the need for an integrated and victim-based transitional justice

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law

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Customary International Humanitarian Law: a response to US comments

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THE OBLIGATION OF A STATE UNDER INTERNATIONAL LAW TO PROTECT MEMBERS OF ITS OWN ARMED FORCES DURING ARMED CONFLICT OR OCCUPATION

AbstractThe article considers whether a state owes any obligation under international humanitarian law or under human rights law to its own soldiers killed or injured during an armed conflict or an occupation of territory. Whether a soldier's own state can beacause (in conjunction with the acts of enemy forces) of his death during combat is explored through situations such as poor training, equipment, and leadership and of specific issues such as ‘friendly fire’ incidents. It marks out a distinction between causation and the responsibility of a state. Whilst there may be political, or even national law, pressures upon a government which is at fault to some degree in causing casualties amongst its own soldiers this article suggests that, in certain limited circumstances, a duty may crystallise under customary international humanitarian law or arise under human rights law on a state to prevent it beingacause of the death or wounding of its own soldiers. It concludes that soldiers are, perhaps, the last group involved in an armed conflict to be recognised as individuals who should be owed some obligation of protection, in this case, by their own state under international law.

Symposium: Studies on the Customary Law Study

The publication of the ICRC’s Study on Customary International Humanitarian Law is a major development in one of the central areas of interest for Journal of Conflict & Security Law. It was thus decided that the Study should be the focus of a roundtable discussion, which was held by the Centre for Conflict and Security Law in Nottingham in October 2005. The following papers were delivered and discussed at the roundtable. With one exception, they are published here in the order they were presented in Nottingham. The exception is Iain Scobbie’s paper on the concept of custom adopted in the Study and early responses to it, which will be published in a forthcoming issue of the Journal. It is hoped that the papers contribute to informed debate on the Study. Thanks go to Cambridge University Press for its support for the event.

A Conflict of Norms: The Relationship Between Humanitarian Law and Human Rights Law in the ICRC Customary Law Study

It is generally accepted that although human rights law is applicable in armed conflicts the rules of international humanitarian law take precedence as lex specialis. However, uncertainties remain. Do norms with a lex specialis character override more general rules systematically and invariably, or is there room for complementarity? To what extent are human rights standards applicable in armed conflicts and in how far is the jurisprudence of regional human rights courts pertinent? The ICRC Study on Customary International Humanitarian Law provides a relevant example of how the normative relationship between human rights law and humanitarian law on the basis of the lex specialis rule can be conceived. The article examines this normative relationship by analysing how the Study uses the jurisprudence of human rights bodies in order to specify fundamental guarantees of humanity. The article argues that although the Study's approach works in principle because the use of human rights law in it is basically restricted to proving the existence of fundamental guarantees problems arise, inter alia, in relation to proportionality when using force, in relation to human rights' limitation clauses and in relation to the different dimensions of human rights protection. Moreover, since concrete human rights standards depend very much on their circumstances because of the contextual techniques employed in interpretation of human rights law they can neither readily be transferred to the situation of an armed conflict nor be easily applied outside their regional context. Thus, the concrete application of the refined human rights law to interpret humanitarian law is not always as valuable as might be thought.

International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law

The law of armed conflicts prohibits indiscriminate warfare, unnecessary suffering and perfidious acts, yet practice confirms that legal rules which have been expressly supported by states are widely violated, while means to enforce compliance are often weak or altogether lacking. The Article considers the imperfect situation of compliance and enforcement in armed conflicts and shows that specific problems, in particular with respect to non-state actors, remain unsolved and too little discussed. The obligation of states to respect and ensure respect of international humanitarian law is evaluated. In this context similar obligations of transnational corporations and armed opposition groups are considered and the role of international organisations addressed. Advocating new efforts by lawyers and operators, in order to ensure confidence in the law and to improve the protection of victims of armed conflicts, the author identifies eight practical steps as being the most important.