Academic journal article Washington International Law Journal

Customary International Humanitarian Law and Multinational Military Operations in Malaysia

Academic journal article Washington International Law Journal

Customary International Humanitarian Law and Multinational Military Operations in Malaysia

Article excerpt


The 2003 arrest of the Malaysian terrorist Hambali reflects the increasing worldwide reliance on multinational military and police operations to combat emerging internal security threats.1 This operation, targeting one of the masterminds of the Jemaah Islamiyah bombings in BaIi and Jakarta,2 involved law enforcement and intelligence personnel from several countries rather than a unilateral operation against an isolated enemy.3 The combination of a continuing threat from transnational extremist groups in Southeast Asia4 and the increasingly multinational military response to this threat makes sources of international law governing the use of force more relevant as a regulatory scheme for the region's response.

It is against this backdrop that the International Committee of the Red Cross ("ICRC") culminated a ten-year effort to identify rules of customary international humanitarian law ("IHL") applicable to armed conflict.5 In addition to customary rules applicable to the conduct of hostilities between states, the ICRC study also identifies customary rules of international law regulating armed conflicts in which a state combats insurgents within its borders.6 Since IHL governing these internal armed conflicts requires states to meet minimum standards for the treatment and judicial procedural rights of detainees,7 changes in the IHL regime can have great implications for the legality of domestic laws with respect to international law.

Prior to addressing the import of the ICRC study, it is necessary to understand general principles of QiL and customary law. International humanitarian law is the body of customary and formal law that regulates the conduct of hostilities between belligerents8 in order "to mitigate some of the more horrific aspects of organized violence."9 Also known as the law of armed conflict and the law of war,10 IHL governs the use of force during hostilities11 and establishes protections for civilians.12 It is a distinct body of law from human rights law, although many of the general principles informing human rights law are also central to IHL.13 The Geneva Conventions of 1949 are one of the major codifications of IHL. Together with their 1977 Additional Protocols, they provide a comprehensive body of law for regulating both international and internal armed conflict.15

Even where the Geneva Conventions do not apply to a conflict, customary international law nevertheless regulates the conduct of hostilities.16 Unlike a convention, customary law informally evolves from the consistent practices of most states and reflects their perception of their legal obligations.17 While a convention binds a state through the state's act of ratification, customary international law binds all states who have not persistently objected to a rule both during and subsequent to its formation.18 Due to the default applicability of customary law to armed conflict, the evolution of rules of customary IHL can have broad implications for all states, regardless of the type or intensity of conflict involved.19

The ICRC has defined customary IHL in a way that may become problematic for non-party states seeking international military cooperation in combating internal resistance movements. By arguing that a rule is customary international law, the ICRC both intrudes on the sovereign sphere of signatories to international humanitarian law treaties such as the Geneva Conventions and challenges non-signatories to bring their domestic laws into compliance with international standards. This conflict with customary international law may simultaneously impair a state's ability to obtain military assistance for internal conflicts, and may strengthen the IHL regime as intervening states apply pressure for legal reform as a condition of providing assistance.20

The ICRC's findings are of great importance to international law because of the unique role of the ICRC as a respected and preeminent authority on IHL. …

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