Customary International Law

1. ICJ, annexed to UN Charter, statute 38.1(b)

   1. States must parcipate

   2. and do so because they think it’s a legal obligation to do so

2. Imortance

   1. Binds non-state parties and state parties

   2. Much of IHL is CIL

      1. Example: to the extent that API is CIL, the US is bound even if the US did not ratify API

      2. Governments always argue that x = ~CIL, because they want maximum autonomy. Advocates always argue that x = CIL because they want maximum accountability.

   3. Most treaty law in IHL is only for IAC. Our sources for NIAC are limited to CA3, APII, and CIL.

3. ICRC study

   1. Most violations of IHL result out of

      1. Unwillingness

      2. Lack in resources

      3. Lack in awareness

   2. In order to provide maximum awareness, ICRC spent 10 years researching, and identified 161 CIL rules.

4. The Debate between ICRC and US

   1. US Complaints (Bellinger letter): primarily had problem with methods. 5 complaints

      1. Selection – what state practice contributes to the analysis?

         1. Looked at: state’s physical behavior, verbal acts (like military manuals and legislations), and how states vote

            1. US: ICRC put too much emphasis on written material, and not enough on actions. Too much focus on UN Resolutions. Just because countries agree with resolutions, doesn’t mean their reason for doing so is their feeling of legal obligation.

      2. Assessment – how did ICRC decide when State practice established a rule?

         1. US: objected that there are specially affected states

            1. Specially Affected State – concept that comes out of law of sea

               1. ICJ in north sea cases

               2. Dealt with concrete conditions (like states that are landlocked versus states that border the continental shelf)

         2. ICRC: Yes we did. In assessing state practice, we looked at how extensive and representative each practice was.

            1. Quantitative analysis: considered # of states engaging in the practice

            2. Qualitiative analysis: considered which states participated (specially affected states)

            3. In analyzing practice, we looked at:

               1. Density

               2. Virtual uniformity

               3. Extensive and representative

                  1. If all SAS agreed on the practice, that that was enough. If not, we looked at other countries.

         3. US: ICRC did not take specially affected states sufficiently into account

         4. ICRC: unlike the states considered in the ICJ law of the sea cases, all states have the potential to be part of an armed conflict

         5. US: but we have the most potential because we have the most exposure. And ICRC did not take negatie practice (doing the opposite, or refraining from the act) into account.

         6. ICRC: violations confirm the rule, rather than show that there is no rule, especially if the violator gives an excuse. Trying to justify an act is evidence that the violator knows that there is a rule. Otherwise, we’d just say “of course we’re torturing.”

            1. Rule comes from ICJ Nicaragua case

      3. Opinio Juris (sense of legal obligation)

         1. US: This needs to be proved separately from practice.

         2. ICRC: it’s difficult to separate motiviations from sense of legal obligations. But when there’s a sufficiently dense practice, there’s no need to show motivation due to legal obligation

         3. US: you need a separate statement of OJ to show OJ

      4. Formulation of Rules

         1. US: ICRC looked at more materials than actions and oversimplified complicated rules. The research was made with nuance and is overbroad.

      5. Implications

         1. US has more flexibility if these ‘rules’ are treated as policy positions, rather than areas of CIL. But it also undermines our ability to speak out when other countries are violating these norms.

         2. Does this make the US look our of step/uncredible?

            1. We follow “CIL” as a “matter of policy”

            2. But violate our treaty obligations (like treaty)

            3. We comply with things that we are not formally bound by, but don’t comply things we are bound by.

5. ICRC Conclusions

   1. API and II are CIL

      1. US: no they are not

      2. ICRC: most of these were CIL 30 years ago. International courts who tend to agree that the IAC rules in a NIAC context are CIL.

Jus in Bello

1. Ultimate Law

   1. Regardless of aggressor/victim, all parties to the conflict must obey the jus in bello (GC CA1)

2. Sources

   1. Hague Law

      1. Means and methods: weapons, targeting

      2. Peace Conference held in Hague in 1899 and 1907 to address jus ad bellum issues (wanted to outlaw war and establish peaceful means of resolving disputes) as well as jus in bello (the ones listed above)

      3. Origign of Martens Clause (1899)

         1. Savings clause. Even absent a specific agreement, the conduct of war is always governed by existing international law principles, including that of humanity. When in doubt, err on the side of humanity.

            1. Modern formulation found in API:1.2: in cases not covered by this protocol, civilians and combatants remain under the protection and authority of principles of international law from custom, from principles of humanity, and from the dictates of public conscience.

            2. Discussed in Hamdan

   2. Geneva Law (“hors de combat”)

      1. 1864: GCI: focused on injured soldiers

      2. 1906: GCII: war at sea, prisoners of war

      3. 1929: GCIII: POWs, enforcement of grave breaches regime

         1. grave breaches regime: GCIII: 130

            1. grave breaches = willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular tiral prescribed in this Convention

               1. Art. 129: HCPs must provide effective penal sanctions for persons committing, or ordering to be committed, any of the GB

                  1. Must prosecute

                  2. Or extradite

      4. 1949: GCIV –...

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