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99 Am. Soc'y Int'l. L. Proc. 208 (2005)
The ICRC Customary Law Study: A Preliminary Assessment

handle is hein.journals/asilp99 and id is 222 raw text is: 208 ASIL Proceedings, 2005 Tim ICRC CUSTOMARY LAW STUDY: A PRELIMINARY ASSESSMENT by W. Hays Parks* The Customary International Humanitarian Law Study1 prepared by the International Committee of the Red Cross (ICRC) is, on first appearance, an impressive effort. It was prepared by attorneys I have known and worked with for many years. So it was with great anticipation that I awaited its arrival. My anticipation was not entirely positive. In late January I participated in a law of war experts' meeting in Heidelberg, Germany, with thirty other international lawyers, including Knut D6rmann, who is present today, and Jean-Philippe Lavoyer, ICRC legal advisor. Under the able leadership of Professor Yoram Dinstein, our group is endeavoring to prepare a manual on air and missile warfare similar to Professor Dinstein's earlier (1995) San Remo Manual on International Law Applicable to Armed Conflicts at Sea. As part of this effort, each participant is required to prepare a paper on a particular aspect of the law relating to air and missile warfare. The papers then are discussed and critiqued. At our January session, one of our participants summarized his paper. In the course of doing so, he concluded that a particular provision from Additional Protocol 12 had not yet attained customary international law status. There was a nodding of heads indicating general agreement. This was followed by looks of surprise when the ICRC participants announced that its Customary Law Study concluded that the provision was customary international law. This was not the only time this occurred during our meeting, raising eyebrows among many of the participants. My concern increased when I was asked to participate in today's panel, as I had not seen the study. I received my copy last Saturday, providing little time for its examination. So I took a medical approach: I decided to perform a biopsy of select areas in which I have personal knowledge and experience. Specifically, beginning in 1978 and continuing through 2001, I served as a member of the U.S. delegation to the UN Conference on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects,3 popularly known as the Conventional Weapons Convention. In that capacity, I was the U.S. negotiator for the Incendiaries Protocol,4 the Blinding Laser Weapons Protocol,5 and for small-caliber weapons issues. The latter included the separate unsuccessful ICRC legal challenge to the .50-caliber Raufoss Multipur- pose projectile that took place between 1999 and 2001. So I turned to the sections discussing incendiary weapons, blinding laser weapons, and so-called exploding bullets in Volumes 1 and 2. The incendiary weapons section in Volume 2, Practice, is an extensive compilation of government statements and UN documents. Statements alone raise several questions. Was a statement made or action taken for policy reasons, or was it intended as a government's * International Affairs Division, Office of General Counsel, Department of Defense. The views expressed herein are the personal views of the author, and may not necessarily reflect an official position of the Department of Defense or any other agency of the U.S. government. 1 1, 2 CUSTOMARY INTERNATIONAL HutMANrrA~tAN LAW (Jean-Marie Henckaerts & Louise Doswald-Beck eds. (2005). 2 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 1977, 1125 U.N.T.S. 3. ' 19 ILM 1823 (1980). 4 Convention on Indiscriminate Weapons, Protocol (111) on Prohibitions or Restrictions on the Use of Incendiary Weapons, 1980, 19 ILM 1534 (1980). 5 Convention on Indiscriminate Weapons, Protocol (IV) on Blinding Laser Weapons, 1995, 35 ILM 1218 (1996).

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