An Australian Perspective on the ICRC Customary International Humanitarian Law Study

Author:Timothy L. H. McCormack
Position:Foundation Australian Red Cross Professor of International Humanitarian Law and also the Foundation Director ofthe Asia-Pacific Centre for Military Law, University of Melbourne, Melbourne, Australia
Pages:81-97
Ill
An Australian Perspective
on the ICRC Customary International
Humanitarian Law Study
Timothy L. H. McCormack*
Introduction
It is apleasure for me to be here to participate in this panel discussion on the In-
ternational Committee of the Red Cross's (ICRC's) Customary International
Humanitarian Law study (hereinafter the Study) for several reasons. Ihave great
respect for the Naval War College and its important contributions to the develop-
ment of the law of armed conflict (LOAC) over many years. This is the first oppor-
tunity Ihave had to travel to Newport to participate in the annual International
Law Conference and Iam indebted to the Stockton Professor Charles Garraway
and to Professor Dennis Mandsager for their invitation to me to make the trip
from Down Under. Ihave also had along association with the ICRC customary law
study and have been looking forward to the opportunity to engage with others in
response to the Study in apublic forum such as this.
Ialso confess that Newport, Rhode Island has areverential aura about it in the
hearts of Aussies like me. It was in this place in 1983 that Australia II with its infa-
mous winged keel came from three races down to wrest the "Auld Mug" from the
*Professor McCormack is the Foundation Australian Red Cross Professor of International
Humanitarian Law and also the Foundation Director ofthe Asia-Pacific Centre for Military Law,
University of Melbourne, Melbourne, Australia.
Australian Perspective on the ICRC Customary Law Study
New York Yacht Clubthe fiercely competitive custodians of the America's Cup.
The Cup had never left American hands since it was won by America (hence the
Cup's name in honor of its inaugural winner) in the inaugural race against the
Royal Yacht Squadron around the Isle of Wight in 1851, until, after 132 years and
multiple unsuccessful challenges, the Aussies finally broke the US stranglehold. It
is fair, although nationally unpalatable, to concede that we were unable to match
anything like the US ability to successfully defend the Cup against successive chal-
lenges (24 in total). In 1987 Dennis Connor regained the Cup and returned it to the
United Statesthis time to the San Diego Yacht Clubbefore it was won by the
Kiwis and now the Swiss. The Aussies have never come close to retrieving it since.
All this to say that it is special to be here in Newport and Ido not take the opportu-
nity for granted.
My intention is to briefly explain the nature of my involvement with the cus-
tomary law study before Imove to more substantive observations. Iwant to offer
some thoughts on positive benefits of the Studysome potential and others al-
ready manifestas away of congratulating the ICRC on the publication of the
Study. Then Iwill add some of my own thoughts on reasons why the ICRC ought
not be surprised by the level of criticism of the Study which has already emerged
and which, in my view, will continue largely unabated.
Personal Involvement with the Study
As the incumbent of the Australian Red Cross Chair of International Humanitar-
ian Law, it is sometimes wrongly assumed that Iam an official apologist for not
only the Australian Red Cross but also for the entire Red Cross Movement includ-
ing the ICRC. The assumption is wrong because my appointment is to the Univer-
sity ofMelbourne and not to the Australian Red Cross. It was agreed at the time the
Chair was established that the incumbent would exercise academic freedom as an
employee of the University and would not necessarily act as aspokesperson for the
Australian Red Cross. On many occasions Ihave participated in the Australian
public debate on international humanitarian law related issues on behalf of the
Australian Red Cross but it is also true that on other occasions Ihave had to dis-
tance myselfsomewhateither because Idisagree with the position of the national
society or, more commonly, because the decision to speak out publicly about cer-
tain issues conflicts with one or more of the Fundamental Principles of the Red
Cross Movement. Iaccept that the "wearing of different hats" invites confusion
and can be arecipe for misunderstanding but Iam learning to live with those nega-
tives. Iam afirm believer in the Red Cross Movement and not because ofthe Chair
Ioccupy. That belief does not translate automatically into support for every
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