The Humanitarian Monarchy Legislates: The International Committee of the Red Cross and Its 161 Rules of Customary International Humanitarian Law

By Nicholls, Leah M. | Duke Journal of Comparative & International Law, Fall 2006 | Go to article overview

The Humanitarian Monarchy Legislates: The International Committee of the Red Cross and Its 161 Rules of Customary International Humanitarian Law


Nicholls, Leah M., Duke Journal of Comparative & International Law


INTRODUCTION

In March 2005, the International Committee of the Red Cross (ICRC), released its Customary International Humanitarian Law, a work intended to articulate and justify the rules of customary international humanitarian law (IHL). (1) This Note will explore some of the issues surrounding the ICRC's publication, such as examining the wider role of the ICRC in IHL, debating the methodology used in the text, and finally, speculating on how the project will impact customary IHL in American and international tribunals. This Note concludes that while the ICRC successfully articulated a global consensus on what international humanitarian law ought to be, it may have sacrificed some of its respect in the international community by departing from a traditional definition of customary law.

A. A Brief Overview of Customary International Humanitarian Law

To understand the significance of the ICRC's attempt to articulate the rules of customary IHL, one must know at least the basic structure of the law in this area. International law comes from four sources: (1) treaties and agreements; (2) customary law; (3) general principles of law common to major legal systems; and (4) judicial decisions and scholarly teachings) Treaties and customary law have equal authority as international law. (3) If they conflict, the "last in time" rule operates, meaning that whichever came into force most recently takes precedence. (4) When treaties and customary law are not helpful, one may then consult general principles, which most frequently come into play to determine procedural matters. (5) If an issue cannot be resolved after examining these sources, decision-makers should then consult scholarly articles and judicial opinions. (6) However, as will be discussed in more detail below, (7) overburdened judges often rely on scholarly works as definitive evidence of customary international law or general principles instead of conducting independent assessments of primary sources. (8)

Customary International Humanitarian Law addresses customary international law, and specifically, customary IHL. (9) Customary law is "international custom, as evidence of a general practice accepted as law," (10) resulting from "a general and consistent practice of states followed by them from a sense of legal obligation." (11) Thus, a principle is considered customary law if many states across the world feel legally obliged to follow that principle. This sense of legal obligation is commonly referred to as opinio juris.

The ICRC spent nearly a decade determining when state practice and opinio juris in the area of IHL are sufficient to give rise to customary law and articulating that law. The resulting work closely resembles an American-style restatement's articulation of common law-based rules. (12)

B. An Overview of the International Committee of the Red Cross

The ICRC has its roots in an 1859 battle in Solferino, Italy. (13) Swiss businessman Henry Dunant, in Solferino on a business trip, was appalled that the wounded of both sides had been left to die and arranged for their care. (14) Following that experience, he founded the predecessor to the ICRC, the International Committee for the Relief of the Wounded, and in 1864 helped to draft the first Geneva Convention, which created the concept of IHL. (15) Today, the four Geneva Conventions and their Protocols are the basis of IHL. (16)

From its infancy, the ICRC has been in the practice of creating law, but what is interesting about its most recent foray into lawmaking is that it claims only to be writing down existing customary law. (17) Whether it has done so accurately or whether it is continuing its practice of creating law is a matter of much debate.

In addition to interpreting, articulating, and creating IHL, (18) the ICRC is also associated with the national Red Cross societies, which work in areas decimated by war or natural disaster to reunite families and otherwise provide relief. …

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