Washington International Law Journal


Drew R. Atkins


The International Committee of the Red Cross published a study in 2005 identifying rules of customary international law applicable to armed conflict and theoretically binding on all nations. This study found that customary state practice has come to encompass and in some cases exceed protections contained in the Additional Protocols of 1977 to the Geneva Conventions of 1949, regardless of their applicability to a given conflict. These findings may impact the domestic law enforcement practices of states not parties to Additional Protocol II, which regulates non-international armed conflict. Furthermore, the study may have indirect effects on military cooperation and legal reform worldwide. By strengthening the legal criticism of domestic laws not compliant with international humanitarian law, the study directly challenges non-party states seeking to obtain unqualified military assistance during internal conflicts. However, this same effect will lend support to increased observance of international humanitarian law as intervening states’ militaries apply pressure to realize compliance with customary international law. This comment identifies these implications by considering a hypothetical future counter-insurgency in Malaysia in which the United States offers military assistance to the Malaysian government.

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