Customary International Humanitarian Law

International agreements between states form a primary source of law. States then commit themselves to treaties that they voluntarily embrace. However, states are also bound by generally accepted practices as law. Customary international humanitarian law therefore is an additional source of international law. In order to be accepted as an accpeted practice of law, the following elements are requirred:

1. The following objective element: repeated behaviour of States (also called: state practice)
2. The following subjective element: the belief that such behaviour originates from a legal obligation (also called: opinio juris)

Customary International Humanitarian Law

• Definition: a body of unwritten rules, based on state practices, of public international law which govern the rules of warfare.

The ICRC study on Customary International Humanitarian Law

In 2005 the International Committee of the Red Cross presented a study on Customary International Humanitarian Law.

• Volume I identifies 161 rules considered to meet the treshold for becoming customary law
• Volume II describes the identified practices that underpin the identified rules in volume I

On its website the ICRC has published its Customary International Humanitarian Law Database. Here, updates on its findings in regard to state practice and customary law can be found.

The ICRC study addresses the following topics.

Part 1 The Principle of Distinction

• Distinction between civilians and combatants
• Distinction between civilian objects and military objectives
• Indiscriminate attacks
• Proportionality in attack
• Precautions in attack
• Precautions against the effects of attacks

Part 2 Specifically protected persons and objects

• Medical and religious personnel and objects
• Humanitarian relief personnel and objects
• Personnel and objects involved in a peacekeeping mission
• Journalists
• Protected zones
• Cultural property
• Wotks and installations containing dangerous forces
• The natural environment

Part 3 Specific methods of warfare

• Denial of quater
• Destruction and seizure of property
• Starvation and access to Humanitarian relief
• Deception
• Communication with the enemy

Part 4 Use of weapons

• General principles in the use of weapons
• Poison
• Nuclear weapons
• Biological weapons
• Chemical weapons
• Expanding bullets
• Exploding bullets
• Weapons primarily injuring by non-detectable fragments
• Booby-traps
• Landmines
• Incendiary weapons
• Blinding laser weapons

Part 5 Treatment of civilians and persons hord de combat

• Fundamental guarentees
• Combatants and prisoner-of-war status
• The wouned, sick and shipwrecked
• The dead
• Missing persons
• Persons deprived of their liberty
• Displacement and displaced persons
• Other persons afforded specific protection

Part 6 Implementation

• Compliance with international humanitarian law
• Enforcement of international humanitarian law
• Responsibility and reparation
• Individual responsibility
• War crimes