Weapons in the ICRC Study on Customary International Humanitarian Law

摘要

Part IV of the ICRC’s Customary International Humanitarian Law Study is the shortest section of that monumental work; yet it covers one of the most important technical areas of humanitarian law, namely prohibited weapons. It does so by means of two “General Principles” and 14 rules on specific weapons, all of which are covered by various treaties that have been made since 1868 (a notable omission is nuclear weapons). This article outlines the context of the Study’s overall impact in relation to weaponry and addresses some methodological criticisms concerning the extrapolation of customary rules from treaties which, in some cases, are barely a decade old and either have not attracted a very large number of States parties or are confronted with significant contrary State practice by major military powers like the United States of America. The article goes on to consider each Rule individually in light of its origins in treaty law and previous status as custom, if any. A point of contention throughout these Rules is the Study’s cavalier extension of them to cover non-international, as well as international, armed conflicts, even in cases where State practice is all but absent. This detracts from the Study’s overall credibility and usefulness. It is seriously suggested that most of the Rules in this Part of the Study are either unsupported by sufficient evidence or otherwise redundant; the Study’s authors could usefully have stopped at the second of the “General Principles” as far as weaponry is concerned.