Revisiting Customary Humanitarian Law: The ICRC’s Study at 20
In 2005, the International Committee of the Red Cross (ICRC) published its study of Customary International Humanitarian Law, in which it codified 161 rules it had identified as customary in character. The ICRC’s study is the only comprehensive codification of the binding rules of customary international humanitarian law and is thus of singular practical importance. Nevertheless, it has been subject to methodological criticism, which has weakened its international recognition. Furthermore, recent developments in state practice, the increasing use of new technologies, and new developments in international legal methodology relating to customary international law all provided us with good reason to re-examine the study and its findings. The study’s twentieth anniversary provided for an excellent occasion for the Institute for International Peace and Security Law (Universität zu Köln) and the Institute for International Law of Peace and Armed Conflict (Ruhr-Universität Bochum) to reexamine customary international humanitarian law at large.
The international workshop brought together more than 20 participants from over 10 countries, who discussed the ICRC study’s past, present, and future in five panels over the course of two days. The conference also featuredfeatuers presentations by representatives of the German Red Cross as well as by a team of the British Red Cross and the University of Cambridge’s Lauterpacht Centre on International Law. Additionally, we were able to get insights into the creation of the Study in a keynote speech delivered by Jean-Marie Henckaerts, one of the co-author’s of the 2005 study.
The Panels
The first four central panels of the workshop, providing the platform for the exchange of ideas cultivated over its course, were chaired by experts in the field of international humanitarian law and featured presentations by early-career researchers.
The first panel, which was chaired by Professor Robert Heinsch, examined the ICRC’s study as a historic document. Vincent Widdig gave a presentation on the criticisms the study has faced after its publication and the persisting challenges in identifying customary international humanitarian law. His presentation was followed by Dr. Nadia Kornioti’s examination of the “encyclopaedic value” of the ICRC’s study and its utility in history-oriented legal research.
The second panel, chaired by Professor Eliav Lieblich, explored the content of the study, particularly focusing on gaps in the study’s conception. Lizaveta Tarasevich analyzed the exclusion of the practice of non-state armed groups from the study and criticized it as at odds with the theory of customary law. In the panel’s second presentation, Mina Radoncic asked whether the study should also identify norms that are not customary, thus challenging the ambition of the study.
Panel three, led by Professor Martha M. Bradley as chair, analyzed the very foundations of customary international humanitarian law. First, Ilya Ivanov identified more and less “successful” rules within study and deduced the limits of creation of customary international humanitarian law. This was followed by Tom Gal’s presentation, who examined the influence of international criminal law on the identification of customary international humanitarian law.
The fourth panel, chaired by Professor Sergey Sayapin, discussed the agency of different states in shaping customary international humanitarian law. Avni Bahri demonstrated how the Global South’s role in shaping international humanitarian law has shifted over the last decades, with Global South states increasingly challenging existing rules and acting as norm entrepreneurs. In a similar vein, Stanislau Lashkevich examined whether the practice of ‘specially affected states’ does or should count more in the identification of customary international law and ultimately advocated for a calibrated approach.
These panels converged on core questions in the methodological balance between identifying and interpreting customary international humanitarian law. Concerning both strands, participants engaged in in-depth discussions on authoritative actors and relevant legal sources, opening a door to facilitate further inquiries.
The final panel, bringing together a group of more established voices in international humanitarian law, was chaired by Dr. Marnie Lloydd. Itand provided room for a discussion about a potential renewal of the study, and was largely informed by the multitude of insights presented over the course of the preceding four panels. This last panel featureds presentations by Dr. Jennifer Maddocks, Professor Panos Merkouris, and Dr. Linus Mührel.
The Audience
The event sparked a lot of interest, as was evidenced by the approximately 50 registrations for the workshop. Furthermore, we were able to disseminate the findings of our panelists through two blog-symposia, which accompanied the event and were hosted on Articles of War and Völkerrechtsblog, two renowned blogs on international (humanitarian) law.
Overall, we received overwhelmingly positive feedback, both by the participants in Bochum and online. The international and diverse backgrounds of all participants ensured a rich scientific debate and laid the groundwork for future work on the study. An edited volume of the Cologne Studies on International Peace and Security Law based on the workshop is in preparation.
The full program including details on the workshop venue and registration for the event is available here.