chapter 4 Customary Status of International Humanitarian Law
When considering the legal framework of the role of physicians in armed conflicts, one cannot only examine treaty law. Even though treaties in interna- tional humanitarian law are widely accepted, states may also be bound by customary international law. Customary international law, a separate source of international law pursuant to article 38 (1)(b) Statute of the International Court of Justice (icj Statute),1 generally binds all states. If customary rules emanate from a treaty and equal the treaty provisions, they can also bind states not members to the treaty. De facto, customary rules are at times even better respected than (especially unimplemented) treaty norms.2 It is thus crucial to examine whether the provisions concerning protection against unwarranted medical procedures, articles 11 ap I and 5 (2)(e) ap II, and concerning the pro- tection of medical duties, articles 16 ap I and 10 ap II, are accepted as customary rules of international law. If they are, this furthers their applicability especially in states that have not ratified the Additional Protocols or for non-state actors.3 It is furthermore relevant to examine whether their customary status makes them applicable in both international and non-international armed conflicts,4 particularly because the prohibition of unwarranted medical procedures is much more elaborate for international armed conflicts. For the relevant provi- sions in the Geneva Conventions of 1949 concerning the protection of medical personnel and the treatment of the wounded and sick in armed conflicts, this question is of lesser importance due to their universal acceptance.
1 Statute of the International Court of Justice of 26 June 1945, 77 u.n.t.s. (1945) (hereafter icj Statute). 2 Theodor Meron, ‘The Geneva Conventions as Customary Law’, 81 American Journal of International Law, 348 (1987), p. 349. 3 Non-state actors includes both insurgents or terrorists as well as non-governmental organiza- tions, e.g. Médecins sans frontiers (msf), or inter-governmental organizations, e.g. the United Nations. Theodor Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’, 90 American Journal of International Law, 238 (1996), p. 246. 4 See also Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. xxviii; James P. Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on Customary International Humanitarian Law’, 11 Yearbook of International Humanitarian Law, 175 (2008), p. 189.
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In discussing the status of the relevant provisions, this Chapter will dedicate a brief examination to the customary status of the Additional Protocols. This provides a basis for the subsequent assessment of the state practice as well as the relevant opinio juris of the previously discussed provisions of international humanitarian law, namely articles 11 ap I and 5 (2)(e) ap II and articles 16 ap I and 10 ap II. The icrc Study of Customary International Humanitarian Law will be discussed in comparison to present findings.5 The examination will consider whether the open term medical ethics is possibly specified in custom- ary international humanitarian law.
A Customary International Humanitarian Law
International customary law has been explicitly defined in article 38 (1)(b) icj Statute ‘as evidence of a general practice accepted as law’. In order to obtain the status of customary international law a rule has to be supported by exten- sive and virtually uniform state practice (‘evidence of a general practice’)6 and by opinio juris sive necessitatis (‘accepted as law’).7 The opinio juris requirement entails that a state should be acting out of a sense of legal obligation. Only if these two elements are sufficiently satisfied, can a rule be considered as cus- tomary international law and, thus, legally binding on all states, including those that have not explicitly consented to it. Generally, the Geneva Conventions are considered part of customary inter- national law. This is partly because of their wide acceptance, partly due to the fact that the provisions are considered morally indispensable.8 The question of
5 Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules. 6 International Court of Justice, Fisheries (United Kingdom v. Norway), Judgment [1951], icj Reports, 116, p. 128. 7 In its North Sea Continental Shelf judgment, the icj determined that for the establishment of customary international law ‘state practice, including that of States whose interest are spe- cially affected, should have been both extensive and virtually uniform in the sense of the provision involved and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved’. International Court of Justice, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands) [1969], icj Reports, 3, para. 74. 8 Kalshoven & Zegveld, Constraints on the Waging of War, p. 4 and 82; Roberts & Guelff (eds), Documents on the Laws of War, p. 196 and 420. In United States of America v. Wilhelm von Leeb et al., the Nuernberg Military Tribunal (nmt) under Control Council Law No. 10 plainly estab- lished that certain articles of the Geneva Convention Relative to the Treatment of Prisoners of War of 1929 had been rules of customary international law. ‘Most of the provisions of the