1 The letter and an Introductory Note may be found at 46 ILM 511 (2007).

2 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW, (Jean-Marie Henckaerts & Louise Doswald-Beck eds., Cambridge Univ. Press 2005), 2 volumes, Volume I. Rules, Volune II. Practice (2 Parts), [hereinafter Study]); see also Jean-Marie Henckaerts, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict, INT'L REV. RED CROSS, NO. 857, Mar. 2005, at 175 (providing an overview of the study's purpose, methodology, and findings).

3 The term "international humanitarian law" (abbreviated as ' 'IHL") is used in this introductory note since that is the term used by the author of the article. The Bellinger/Haynes letter uses the terms "laws and customs of war "or "law of war." U.S. military manuals often use the term "law of armed conflict (abbreviated "LOAC"). All are believed to be synonymous.

4 The Bellinger/Haynes letter is significant in that it is the first and, as of this date, the only public criticism of the Study by a government.

5 Announcements and reports of events may be found at ICRC' s web site at http://www.icrc.org.

6 Henckaerts response at 16.

7 Yoram Dinstein, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 6, Cambridge Univ. Press, (2004).

8 Malcolm N. Shaw, INTERNATIONAL LAW 69, Cambridge Univ. Press, (5 ed. 2003).

9 Henckaerts response at 2.

10 Id. at 7-8.

11 Id. at 12.

12 Id. at 16.

13 Volume II of the Study has been criticized for the inclusion of excessive cites, including those of limited relevance. See Yoram Dinstein, “The ICRC Customary International Humanitarian Law Study” The Law of War in the 21st Century, Vol. 82 US Naval War College internaitional law studies 99- 112, (Anthony M. Helm ed., 2006.)

14 Id. at 99.

* This text was reproduced and reformatted from the text appearing at the United Nations website (last visited May 18, 2007) >http://www.un.org/Docs/sc>

1 See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules and Volume II: Practice, Cambridge University Press, 2005 [hereinafter Study].

2 Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23-27 January 1995, Recommendation II, International Review of the Red Cross, No. 310, 1996, p. 84 (that "the ICRC be invited to prepare, with the assistance of experts on IHL [international humanitarian law] representing various geographical regions and different legal systems, and in consultation with experts from governments and international organizations, a report on customary rules of IHL applicable in international and noninternational armed conflicts, and to circulate the report to States and competent international bodies.")

3 26th International Conference of the Red Cross and Red Crescent, Geneva, 3-7 December 1995, Resolution 1, "International humanitarian law: From law to action - Report on the follow-up to the International Conference for the Protection of War Victims", International Review of the Red Cross, No. 310, 1996, p. 58.

4 See John B. Bellinger and William J. Haynes, "A U.S. Government Response to the International Committee of the Red Cross's Customary International Humanitarian Law Study", International Review of the Red Cross, No.--.

5 International Court of Justice, North Sea Continental Shelf cases, Judgment, 20 February 1969, ICJ Reports 1969, p. 43, §74.

6 Thus, in the "Wimbledon " case, the Permanent Court of International Justice relied on two precedents only, those of the Panama and Suez canals, to find that the passage of contraband of war through international canals was not a violation of the neutrality of the riparian State. Permanent Court of International Justice, The "Wimbledon" case, (1923), PCD Series A, No. 1, pp. 1, 28. Obviously the Court could not cite more examples, as the number of international canals is limited. See also C. H. M. Waldock, "General course on public international law", Recueil des cours, Vol. 106, 1962, p. 1, at p. 44, who observes that "on a question concerning international canals, of which there are very few in the world, the quantum of practice must necessarily be small".

7 This may be compared to the facts in the "Wimbledon" case, ibid., in which the Permanent Court of International Justice relied on two precedents only. But those two precedents represented a significant amount of practice, as many vessels, from all over the world, passed through the Panama and Suez canals. So a reference to just two precedents represented a wider body of practice than a first impression might suggest.

8 Geneva Conventions I-IV, Articles 49/50/129/146; Additional Protocol I, Article 85(1).

9 Each of the 161 rules in Volume I is supported by a specific section in Volume II detailing the practice related tothat rule. Many of these practice sections in Volume II are further divided into subtopics addressing such issuesas examples (see e.g. examples of acts considered to constitute direct participation in hostilities, Study, Vol. II, p. 115-127), qualifying clauses (see e.g. practice related to the “feasibility” of precautions in attack, ibid., pp. 357-362), exceptions (see e.g. exceptions to the prohibition of attack against objects indispensable for the survival ofthe civilian population, ibid., pp. 1166—1174), definitions (see e.g. practice related to the definition of torture, cruel, inhuman and degrading treatment, ibid., pp. 2149-2161) etc.

10 Theodor Meron, "Revival of customary humanitarian law", American Journal of International Law, Vol. 99, No. 4, October 2005, p. 833.

11 See, e.g., Study, Vol. II, pp. 213-215, §§ 549-554, citing inter alia Robert F. Futrell, The United States Air Force in Korea 1950-1953, Office of Air Force History, US Air Force, Washington, D.C., revised edition, 1983; US Department of Defense, Statement on targeting policy in Vietnam, 26 December 1966, reprinted in Marjorie Whiteman, Digest of International Law, Vol. 10, Department of State Publication 8367, Washington, D.C., 1968; and US Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992.

12 See International Court of Justice, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgement, 27 June 1986, ICJ Reports 1986, p. 98, § 186.

13 The Study looked at resolutions adopted by the UN Security Council, General Assembly, ECOSOC and Commission on Human Rights, as well as by inter alia the African Union (AU), Council of Europe, European Union (EU), Gulf Cooperation Council (GCC), League of Arab States (LAS), Organization of American States (OAS), Organization of the Islamic Conference (OCI) and the Organization for Security and Cooperation in Europe (OSCE).

14 Study, Vol. I, pp. xxxv-xxxvi.

15 Study, Vol. II, pp. 4351-1382.

16 For example, when it could not be concluded that Rule 114 was part of customary law in non-international armed conflicts, resolutions in support of such a conclusion did not tip the balance because practice outside them was not consistent. See Study, Vol. I, pp. 413-414.

17 See e.g. ICTY, The Prosecutor v. Blagoje Simic et al, Case No. IT-95-9-PT, Decision on the prosecution motion under Rule 73 for a ruling concerning the testimony of a witness, 27 July 1999, released as a public document by Order of 1 October 1999, § 46 and footnote 9.

18 Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross, Geneva, 23-31 October 1986, Article 5(2)(c) and (g).

19 See e.g. Study, Vol. I, pp. 5, 9 and 20-21.

20 See e.g. ibid., p. 67.

21 ICTY, The Prosecutor v. Dusko Tadic aka ' 'Dule'', Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, Case No. IT-94-1- AR72, para. 109.

22 See, in particular, Study, Vol. I, pp. xxxii-xxxvi.

23 Ibid., p. xliv.

24 See, e.g., the considerations in the commentary on numerous rules related to the principle of distinction, including Rule 1, Study, Vol. I, p. 4 ; Rule 2, ibid., p.9 ; Rule 6, ibid., p. 20, Rule 7, ibid., p. 26 ; Rule 8, ibid., p.30 ; Rule 11, ibid., p. 38 ; Rule 14, ibid., p. 47 ; Rule 15, ibid., p. 52. See also Rule 83, ibid., p. 284; and Rule 86, ibid., p. 293

25 Study, Vol. II, pp. 4153-4180.

26 Azerbaijan, India, Indonesia, Iran, Iraq, Israel, Malaysia, Morocco, Myanmar, Pakistan, Thailand and Turkey are not party to Additional Protocol I but are party to the 1954 Hague Convention on the Protection of Cultural Property (at 1 June 2007).

27 See Amended Protocol II, Articles 2-3.

28 Compare Additional Protocol I, Article 50(1), second sentence, with commentary to Rule 6, Study, Vol. I, pp. 23-24.

29 Compare Additional Protocol I, Article 56 with Rule 42, ibid., Vol. I, pp. 139-142.

30 Compare Additional Protocol I, Article 44(3), second sentence, with commentary to Rule 106, ibid., Vol. I, pp. 387- 389.

31 Compare Additional Protocol I, Article 51(6) with commentary to Rule 146, ibid., Vol. I, pp. 520-523.

32 See e.g. Rule 21 (precaution in attack, related to the choice of military objectives), ibid., Vol. I, p. 67, and Rule 65 (prohibition of killing, injuring or capture by resort to perfidy), ibid.. Vol. I, p. 225.

33 See, e.g., in Part I alone of the Study, Vol. I, pp. 13, 24, 31, 36, 45, 64-65 and 76.

34 International Court of Justice, North Sea Continental Shelf cases, op. cit. (note 3).

35 See e.g. the commentary on Rule 114 for non-international armed conflicts, Study, Vol. I, p. 414.

36 See e.g. Germany: Publication ZDv 15/1, Humanitdres Volkerrecht in bewaffneten Konflikten: Grundsdtze, DSK VV230120023, Bundesministerium der Verteidigung, June 1996; and Taschenkarte (pocket card), "Humanitares Volkerrecht in bewaffneten Konflikten: Grundatze", bearbeitet nach ZDv 15/2, Humanitdres Volkerrecht in bewaffneten Konflikten: Handbuch, Zentrum Innere Fhrung, June 1991.

37 See e.g. UK: The Law of Armed Conflict, D/D AT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the direction of the Chief of the General Staff, 1981 (updated yearly).

38 See e.g. US: Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, and Instructor's Guide: The Law of War, Headquarters Department of the Army, Washington, April 1985.

39 See Study, Vol. II, pp. 4916-4207.

40 Compare the description of the principle of distinction in Additional Protocol I, Articles 48-52 with the terse statement in the ICJ's Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons that the principle of distinction constitutes a "cardinal principle" of humanitarian law and one of the "intransgressible principles of international customary law", Advisory Opinion, 8 July 1996, ICJ Reports 1996, p.226, §§ 78-79.

42 See Study, Vol. I, pp. 109 and 196-197.

43 See Study, Vol. I, 2007 reprint (with corrections), p. li.

44 See, e.g., Study, Vol. I, Rule 42 (works and installations containing dangerous forces); Rules 43-44 (protection of the environment); Rule 84-85 (incendiary weapons); Rule 94 (slavery and slave trade); Rule 95 (uncompensated or abusive forced labour); Rule 98 (enforced disappearance); Rule 99 (arbitrary deprivation of liberty); Rule 105 (respect for family life); Rule 116 (identification of the dead); Rule 133 (respect for property rights of displaced persons); and Rule 134 (respect for specific needs of women).

45 Bellinger and Haynes, op. cit. (note 4), footnote 69.

46 The Additional Protocols were adopted on 8 June 1977 after four negotiation sessions (1974-1977) of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts. As its title suggests, the Conference thus sought to reaffirm existing rules of customary humanitarian law as well as developing new rules.

47 See notes 28-31 above and accompanying text. In addition, the Study does not deal with the customary nature of a number of provisions, as they are not as such addressed in it, including Article 1(4) (wars of national liberation), Article 36 (new weapons), Article 45 (presumption of prisoner-of-war status) and Articles 61-67 (civil defence) of Additional Protocol I.

48 See note 23 above and accompanying text.

49 See the 1996 Amended Protocol II to the CCW on mines, booby-traps and other devices, the 1997 Ottawa Convention banning anti-personnel landmines, the 1998 Rome Statute of the International Criminal Court, the 1999 Second Protocol to the Hague Convention on the protection of cultural property, the 2000 Protocol to the Convention on the Rights of the Child on involvement of children in armed conflict, the 2003 Protocol V to the CCW on explosive remnants of war.

50 Until then only Amended Protocol II of 1996 was applicable to non-international armed conflict. The amendment of Article 1 thus affected the scope of application of the existing Protocols I-IV.

51 These are Rules 21, 23-24, 44-45, 62-63 and 82.

52 These are Rules 3-4,41,49, 51, 106-108, 114,130 and 145- 147.

53 These are Rules 124, 126 and 128-129.

54 See US, Supreme Court, Hamdan v. Rumsfeld, Secretary of Defense, et al., Case No. 05-184, 29 June 2006, p. 69. See also Israel, The Supreme Court Sitting as the High Court of Justice, Adalah and others v. GOC Central Command, IDF and others, 23 June 2005, HCJ 3799/02, paras. 20, 21 and 24, and The Public Committee against Torture in Israel and others v. The Government of Israel and others, 13 December 2006, HCJ 769/02, paras. 23, 29-30 and 41-42; ICTY, Appeals Chamber, Prosecutor v. Hadzihasanovic and Kubura, Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal, IT- 01-47-AR73.3, 11 March 2005, paras. 29-30, 38 and 45-46.