The International Committee of the Red Cross and custom
in International organisations, non-State actors, and the formation of customary international law
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In 1995, the 26th International Conference of the Red Cross and Red Crescent mandated the International Committee of the Red Cross to prepare a ‘report on customary rules of international humanitarian law applicable in international and non-international armed conflicts’. The Study on customary international humanitarian law, published in 2005, identified 161 rules of customary international humanitarian law and presented the material collected in their determination. Complemented by regular updates of its practice part, the Study has also been accessible online via the International Committee of the Red Cross’s customary international humanitarian law database since 2010. For the Study, the International Committee of the Red Cross needed to consider many of the methodological questions that the International Law Commission faced in its work on the identification of customary international law. Like the International Law Commission’s Conclusions on that topic adopted on second reading in 2018, the Study is based on the fundamental requirement of two elements: a general practice that is accepted as law (opinio juris). Among the issues arising from this approach, there were the questions whose practice it is that forms rules of customary international law and whether actors other than States could be relevant in this context.

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