What is the best definition for "the customary laws of warfare"?

Question

A number of my friends have been researching the Hague and Geneva Conventions. However, it is also true that much of the "laws of war" is not yet codified.

Indeed, during WWII, much less of the "laws of war" was codified than is today.

Yet, (in regard to the battlefield or in occupied territory) researchers and jurists can often point to the "customary laws of warfare" for guidance in sorting out how best to undertake various actions, or how to interpret various actions.

So, what exactly is the best definition for the "customary laws of warfare" ?

Answer 1

Customary international humanitarian law, also called "customary laws of warfare," is a part of customary international law, which in the broadest sense is derived from "a general practice accepted as law". Such practice can be found in official accounts of military operations but is also reflected in a variety of other official documents, including the following --.

I. Treaties and Other Instruments

Treaties
This category includes universal, regional, and other treaties.

Other Instruments

II. National Practice

National Practice by Country

Military Manuals
This category of practice includes all types of instructions to armed and security forces found in manuals, directives and teaching booklets.

National Legislation
This category of practice includes constitutional law, pieces of legislation and executive orders.

National Case-law

Other National Practice

III. Practice of International Organisations and Conferences

United Nations

United Nations practice includes: (i) resolutions adopted by the UN Security Council; (ii) statements by the President of the UN Security Council; (iii) resolutions adopted by the UN General Assembly; (iv) resolutions adopted by ECOSOC; (v) resolutions adopted by the UN Commission on Human Rights; (vi) resolutions adopted by the UN Sub-Commission on Human Rights; (vii) resolutions adopted by UN specialised organisations and agencies; and (viii) statements and reports of the UN Secretary-General, UN Special Rapporteurs, UN special committees and other UN officials and bodies.

Other International Organisations
This category includes resolutions and reports of regional organisations and other international organisations outside the United Nations.

International Conferences

IV. Practice of International Judicial and Quasi-judicial Bodies

This category includes the various types of practice emanating from judicial and quasi-judicial bodies, such as judgements, advisory opinions, views and general comments. This practice includes: (i) International Military Tribunal (Nuremberg and Tokyo); (ii) International Court of Justice; (iii) International Criminal Tribunal for Rwanda; (iv) International Criminal Tribunal for the Former Yugoslavia; (v) Human Rights Committee; (vi) Committee on the Elimination of Racial Discrimination; (vii) Committee on the Elimination of Discrimination against Women; (viii) Committee against Torture; (ix) Committee on the Rights of the Child; (x) United Nations Compensation Commission; (xi) regional judicial and quasijudicial bodies; and (xii) arbitral tribunals.

V. Practice of the International Red Cross and Red Crescent Movement

VI. Other Practice

This category includes statements by armed opposition groups, reports by non-governmental organisations, and other types of publications from nongovernmental sources.

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The requirement that this practice be "accepted as law" is often referred to as "opinio juris". This characteristic sets practices required by law apart from practices followed as a matter of policy, for example.

Answer 2

In using that terminology it is important to remember that it is relative to the victor in the war. The US has been shaping this over the last century after the various wars and in most places – the US will have the final say about what is customary. This is the basis of the problem that the US has with the world court in The Hague because it will no longer be the US’s version of what is customary.

To try to put it another way – the customary part is what whomever is making the case determines it is. A real life example would be the use of depleted uranium munitions or cluster bombs. Most of the world does not think these meet the standards of customary use in war (and some go as far as to say they violate various treaties). However those who use them usually can pretty much ride roughshod over the guys who cannot or do not use them. As a result they will remain in use because they are the best weapon available for their intended use – law or not.

We citizens don't need to know every detail of every military operation in this new kind of war. Nor should the media tell us and hence our enemy. – COL David Hackworth

Answer 3

Customary laws are a set of rules that become enforceable as law because they have been so broadly accepted for so long that everyone endorces them as law. A large portion of the law of land warfare comes from customary international law. The way to keep a customary practice from becoming law is to publicly and continually object to the custom, even if you follow it. That has been the position of the US and one of the reasons that we do not allow US citizens to be tried before the Hague. The US, as a matter of policy, has not accepted much of what is considered customary international law and has continually objected to those rules.

Answer 4

The 'Laws and Customs of War' are a set of treaties signed over the past 120 years as well as precedents from specific war crimes trials.

A law of war can be either as a result of your country signing a treaty agreeing to those rules (statutory law of war) or on the basis that the vast majority of nations agree to and follow those practices - thus making them an international standard (customary law of war).

Answer 5

The military tend to use tried and trusted methods of warfare.

But remember what applied to past conflicts and campaigns has to been continualy modified to the current situation / campaign in hand.

Try looking up the Geneva Convention, with regards what is and what is not permisseble in Conflicts.

Answer 6

I think the best definition is "B.S"