ICRC Launches Customary Humanitarian Law Database

The International Committee for the Red Cross has launched its Customary International Humanitarian Law Database, and it is a huge time waster. Or huge time-saver, I guess, if your work actually involves IHL, but for me it’s pretty much just a shiny new method of procrastination.

This thing is seriously comprehensive — it’s the best free resource on Customary International Law I can think of, and the database is pretty much idiot-proof to navigate. In addition to looking at the practice records of particular countries, you can also look at a listing of the state practice for any given IHL rule. The ICRC has listed of 161 identified norms of customary international law relating to humanitarian law, and provides the practice in support thereof for reach. (The rules are not intended to be a comprehensive listing of all of customary humanitarian law: “As the approach chosen [by the ICRC] does not analyse each treaty provision with a view to establishing whether or not it is customary, it cannot be concluded that any particular treaty rule is not customary merely because it does not appear as such in this study”. But the ICRC does not seem to have missed much.)

For instance, take ICRC’s Rule 86 of IHL: The use of laser weapons that are specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision is prohibited.

This would normally be a somewhat difficult norm of CIL to research, in part because it is one of those “accelerated CIL norms” that has come into being rather recently and rather abruptly, and in part because it’s a norm of CIL that states have not really had an opportunity to violate in the first place. To quote China’s statements upon the adoption of Protocol IV to the Convention on Certain Conventional Weapons, “this is the first time in human history that a kind of inhumane weapon is declared illegal and prohibited before it is actually used.” So it could take a bit of digging to determine if there truly is CIL prohibiting the use of blinding lasers … or if nations simply haven’t developed the technology to implement such weapons, yet, and therefore the total absence of state practice refuting the norm is meaningless.

But as it turns out, there is actually vastly more examples of state practice behind the norm than I would have guessed. If any domestic or international tribunal wanted proof that such a norm of IHL genuinely existed and was actually accepted as law by the world’s nations, they wouldn’t need to look much further.

A database like this ought to exist for all of customary international law. The difficulty, of course, is in ensuring that the database administrator is operating from a neutral and objective standpoint, diligently compiling incidents of conformance and non-conformance with alleged CIL norms. From what I’ve seen so far, the ICRC’s database of IHL does a good job of that, but it would be far too easy for a database to selectively include or exclude particular examples of state practice to create a warped view of how robust the norm truly is.


“Untreated Chronic Pain Violates International Law”

When I saw the above headline, it struck me immediately as a possible contender for the Most Absurd Claim To A Customary Norm of International Law Yet. (Even one of my long time favorites, the ATS case involving the use of under-aged camel jockeys, had a better basis.) Although there is a very good case to be made that, under international law, states have a duty to avoid causing chronic pain in their citizens, there is hardly one whit of support for the idea that they are obliged to treat it.

It turns out the story is based upon a Human Rights Watch Report [PDF] that presents access to narcotics and relief from chronic pain as a human right enshrined under international law. Somewhat surprisingly, HRW starts not with a CIL argument, but claims that that the right to treatment of chronic pain is a treaty based obligation. For this they cite a single paragraph of the preamble of the Single Convention on Narcotic Drugs of 1961, which provides that the signatory states are

Concerned with the health and welfare of mankind, [and]

Recogniz[e] that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes…

Unfortunately for the HRW report, however, the Convention was clearly not intended to address the availability of pain medication, but rather was entered into by states in an effort to curb cross-border drug trafficking. “Pain” or “suffering” is not mentioned again in the treaty’s text. Even giving it the most generous interpretation, all this language signifies is that the object and purpose of the treaty is to reduce world drug trafficking while not also prohibiting the legitimate medical use of narcotics.

The HRW report also undermines any claims that the Single Convention on Narcotic Drugs of 1961 is the basis of a customary norm that has developed since the treaty entered into force. According to the HRW report, “approximately 80 percent of the world population has either no or insufficient access to treatment for moderate to severe pain.” Given the total absence of any opinio juris on the subject, a mere 20% compliance rate does not a norm make.

I will not even address the report’s batpoop crazy claim that the well established and more-or-less globally accepted norm against cruel, inhumane, and degrading treatment applies to chronic pain, because “[a]s part of this positive obligation [against CITD], states have to take steps to protect people from unnecessary pain related to a health condition.” Seriously, HRW?

I suppose I could accept that the right to treatment of chronic pain qualifies as an aspirational norm, albeit a pretty weak one. The World Health Organization does list codeine and morphine on its Model List of Essential Medicines, a list signifying those drugs which states should endeavor to make available to all of their citizens that need them. But that’s about the most I can say for the study’s claims.

Of course, all of this is definitely not to suggest that the report does not in fact identify a genuine problem. As HRW notes, “Burkina Faso estimates that 8 people need morphine per year. Gabon estimates 14. The Gambia, 31.” Hard to argue with a need for education and reform there. But by cloaking every worthy policy suggestion in a nonsensical guise of “international law,” HRW is actually undermining the rule of international law on the global plane.


Customary Domestic Law

Something that has bugged me since, literally, the first class of the very first International Law course I ever took, is the emphasis on “customary international law” as if it were a distinct phenomenon unique to the formation of international law.

It’s just not. CIL is a specific term for a general phenomenon that occurs at all levels of law making everywhere.

I was reminded very much of that today, while making an early morning excursion into the heart of the Snowpocolypse. I was allegedly “going to get milk for the coffee,” but we really were stocked up on supplies, and I just wanted the excuse to venture out onto the streets.

D.C. was beautiful and desolate and exactly how I imagine the end of the world will look. And the most striking thing was the utter disregard for the normal rules of daily urban life.

Pedestrians walked openly down major downtown streets. People walking dogs waited on the dead middle of K while their dog did its business, and people on skis slid their way across 14th and U. The roads were easier to traverse than the sidewalks, so everyone used them instead.

I passed two cars during my whole walk. One was a Hummer that was stuck in a snowbank and spinning its wheels, and I laughed. The other was a police cruiser, that skirted around me as I walked openly down the middle of 14th, and the policeman waved.

There is not a statute somewhere that says, ‘Hey, when there’s a blizzard, it’s actually okay to disregard traffic laws.’ What almost everyone outside did today was blatantly illegal, and forbidden, and subject to numerous penalties and fines and who knows what.

But under D.C. Customary Law, when the Snowpocolypse hits, you can do whatever the hell you want when you’re trying to make your way down the street. Everyone — from the pedestrians to the police force — simply intuitively knows this, and makes no effort to enforce any other rules, no matter what the written codes may say.