What are the challenges of applying customary international humanitarian law?

Question from Laksh, What are the challenges of applying customary international humanitarian law?

Answer from AI:

Customary international humanitarian law (IHL) refers to rules that come from “a general practice accepted as law” and that exist independently of treaty law. While customary IHL is recognized as a vital part of international law, its application can be problematic due to several reasons.

1. Determining what constitutes customary law

The first challenge is identifying what qualifies as customary law. This is because customary law is not written down like treaty law. Instead, it is derived from the consistent and general practice of states, which they follow out of a sense of legal obligation. However, determining what constitutes a “general practice” and when a state acts out of a sense of legal obligation can be difficult and subjective.

2. Variations in interpretation

Another issue is the potential for variations in interpretation. Since customary law is not codified, different states, courts, and legal scholars may interpret the same customary law differently. This can lead to inconsistencies in application and enforcement.

3. Enforcement difficulties

Enforcing customary IHL can also be challenging. Unlike treaty law, there is no formal mechanism for enforcing customary law. While international courts like the International Court of Justice (ICJ) and the International Criminal Court (ICC) can adjudicate cases involving customary IHL, their jurisdiction is limited and depends on the consent of states.

4. Evolution and change

Customary law evolves over time based on the changing practices and beliefs of states. This can make it difficult to apply in a consistent manner, as what is considered customary law can change.

5. Lack of awareness and understanding

Finally, there may be a lack of awareness or understanding of customary IHL among states, particularly those without a strong tradition of legal scholarship in international law. This can hinder the effective application of customary IHL.

Given these challenges, it is often necessary to consult with a legal professional or expert in international law when dealing with issues related to customary IHL. They can provide guidance on the interpretation and application of customary law, and can help navigate the complexities of international legal proceedings.

For more information on customary IHL, you can refer to the International Committee of the Red Cross’s study on the subject.