Customary International Humanitarian Law and Multinational Military Operations in Malaysia
Atkins, Drew R., Pacific Rim Law & Policy Journal
Abstract: The International Committee of the Red Cross published a study in 2005 identifying rules of customary international law applicable to armed conflict and theoretically binding on all nations. This study found that customary state practice has come to encompass and in some cases exceed protections contained in the Additional Protocols of 1977 to the Geneva Conventions of 1949, regardless of their applicability to a given conflict. These findings may impact the domestic law enforcement practices of states not parties to Additional Protocol II, which regulates non-international armed conflict. Furthermore, the study may have indirect effects on military cooperation and legal reform worldwide. By strengthening the legal criticism of domestic laws not compliant with international humanitarian law, the study directly challenges non-party states seeking to obtain unqualified military assistance during internal conflicts. However, this same effect will lend support to increased observance of international humanitarian law as intervening states' militaries apply pressure to realize compliance with customary international law. This comment identifies these implications by considering a hypothetical future counter-insurgency in Malaysia in which the United States offers military assistance to the Malaysian government.
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. …