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.

-Susan