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Custom As a Source of International Humanitarian Law CUSTOM 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) ii 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 iii 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 iv 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 v vi 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 vii 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. viii 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 ix x FOREWORD BY DR. WAFIK Z. KAMIL The Asian-African Legal Consultative Organization (AALCO) is an intergovernmental organization comprising 48 Member States representing different legal systems of the Asian-African regions. The purpose of establishment of AALCO is to provide a forum for evolving alternative perspectives of international law particularly keeping in view the specific interests of the Developing Countries and Least Developed Countries. 2006 is the Golden Jubilee year of the Organization. In fifty years of its existence AALCO directly or indirectly, has been part of the every major development in the field of international law AALCO shares a mutually supportive relationship with many international organizations, including the United Nations and many other inter-governmental organizations. International humanitarian law (IHL) is a major area of interest for AALCO and its member States. In this context, it is worth noting our close association with the International Committee of the Red Cross (ICRC). We have formalized our cooperation by signing a cooperation agreement on 17 December 2002. Promotion and development of international humanitarian law is the primary objective of our cooperation agreement and was a legalization of our existing and longstanding cooperation. Accordingly, both organizations jointly organized a special meeting in conjunction with AALCO’s Thirty-Sixth Annual Session in Tehran on an important item entitled “Inter-related aspects of International Criminal Court and International Humanitarian Law” and also a seminar on
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