Authority of the International Committee of the Red Cross

Linus Mührel, Dr. iur. (2022), Freie Universität Berlin, is a criminal defense lawyer and lecturer at Technische Universität Dresden. He has published books and articles on public international law, especially international humanitarian law and human rights law.

• AcknowledgementsAbbreviationsTable of CasesTable of TreatiesTable of United Nations DocumentsIntroduction1 The icrc’s Determinations on International Humanitarian Law: An Under-Researched Aspect in the Study of the icrc2 What Can Be Learned from the icrc’s Interpretations and Law-Ascertainments about the Current Type of International Law?2.1 Globalisation and the Role of Non-state Actors2.2 Softening and Hierarchisation of International Law by Dominant States2.3 Points of Departure3 Methodology4 Chapter Outline1 The Authority of the International Committee of the Red Cross1 The Concept of Authority2 Does the icrc Possess a Competence to Interpret and Ascertain International Humanitarian Law?2.1 The icrc’s Role under the Geneva Conventions and Additional Protocols2.2 The icrc’s Role under the Statutes of the Red Cross and Red Crescent Movement3 The icrc’s De Facto Authority4 No Legal Bindingness2 De Facto Authority of the icrc’s Interpretations and Law-Ascertainments1 Pictet Commentaries1.1 Broad Acceptance in the Jurisprudence of International Courts and Tribunals1.2 Broad Acceptance in State Practice1.3 The Marks of the Pictet Commentaries’ Authority1.4 Conclusion: Shaping the Content of the Geneva Conventions2 Commentary on the Additional Protocols2.1 Broad Acceptance in the Jurisprudence of International Courts and Tribunals2.2 Broad Acceptance in State Practice2.3 The Marks of Authority of the Commentary on the Additional Protocols2.4 Conclusion: Nearly Primary Sources, but Less Special than the Pictet Commentaries3 Customary International Humanitarian Law Study3.1 Critical but Welcoming Reactions in Academia3.2 Selective Use in the Jurisprudence of International Courts and Tribunals3.3 Rejection and Acceptance in State Practice3.4 The Study’s Marks of Authority3.5 Conclusion: Filling the Loopholes in International Humanitarian Law4 Interpretive Guidance on the Notion of Direct Participation in Hostilities4.1 Broad Criticism in Academia4.2 Little Use in the Jurisprudence of International Courts and Tribunals4.3 Cautious Reactions in State Practice4.4 The Guidance’s Marks of Authority4.5 Conclusion: Helpful but Not Authoritative5 New Commentaries5.1 Mostly Positive Reactions in Academia5.2 Immediate Consideration in the Jurisprudence of International Courts and Tribunals5.3 Rejection of the Interpretation of Common Article 1 in State Practice5.4 The New Commentaries’ Marks of Authority5.5 Conclusion: No Special Status for the New Commentaries Yet6 Assessment: Changes in the Marks and Different Degrees of Authority6.1 Proximity to Legal Sources6.2 Increase and Diversification of the Expert Community6.3 Expansion of International Law7 Conclusion: The Change of the icrc’s Role for International Humanitarian Law3 The icrc’s Impact on the Structural Rules of International Law1 Identification of Customary International Law1.1 Role in Academic Works1.2 Role in the Work of the International Law Commission on the Identification of Customary International Law1.3 High Impact on the Identification of Customary International Law2 Interpretation of Treaties2.1 Confirmation of the International Law Commission’s Draft Conclusions on Subsequent Practice?2.2 Relevant Rules of International Law Applicable in the Relations between Parties2.3 Preparatory Work2.4 Possible Impact on the Interpretation of Treaties3 Tendencies of Specialisation and Merging of the Sources of International Humanitarian Law3.1 Implications for Specialisation of the Sources of International Humanitarian Law3.2 Implications for Merging of the Sources of International Humanitarian Law4 Conclusion: A New Role for the icrc4 Legal Classification of the icrc’s Interpretations and Law-Ascertainments under the Sources of Law Doctrine and the Means of Interpretation1 No Practice under Article 38 (1) (b) of the Statute of the International Court of Justice2 Subsidiary Means for the Determination of Rules of Law under Article 38 (1) (d) of the Statute of the International Court of Justice2.1 Teachings of the Most Qualified Publicists of the Various Nations2.2 Does Determination of Rules of Law Include Their Interpretation?3 No Means of Interpretation under Article 31 of the Vienna Convention on the Law of Treaties4 Supplementary Means of Interpretation under Article 32 of the Vienna Convention on the Law of Treaties?5 The icrc’s Interpretations and Law-Ascertainments under the Martens Clause as Dictates of Public Conscience?6 What Role for Non-state Actors? A Political QuestionConclusion1 Summary of Main Research Results2 The Future Role of the icrc’s Interpretations and Law-Ascertainments3 How the icrc’s Interpretations and Law-Ascertainments Should Be Dealt with in Academia and Legal PracticeReferencesIndex