5cjxburmr

following guidelines may be helpful in assessing the customary international law applicable tonon-international armed conflict.17.2.2.1 Use of Law of War Principles to Discern Rules Applicable to NIAC. Thefundamental principles of the law of war also provide the foundation for the rules applicableduring non-international armed conflict. 48 As during international armed conflict, the principlesof the law of war form the general guide for conduct during non-international armed conflict,when no specific rule applies. 49However, the application of law of war principles may differ insofar as the circumstancesin international armed conflicts may often be quite different from the circumstances in noninternationalarmed conflicts. 5017.2.2.2 Considered Absence of a Restriction in NIAC. Under general principlesof legal interpretation, when a rule mentions specific circumstances or conditions in which itapplies, it may give rise to a presumption that the rule was not intended to apply in other relatedcircumstances or conditions that are not specifically mentioned. 51Thus, if a treaty addresses both international armed conflict and non-international armedconflict, and provides for a restriction in international armed conflict but does not provide forthat restriction in non-international armed conflict, then this omission may, to some extent,reflect States’ views that such restrictions were not applicable in non-international armed48 Refer to § 17.1.2.2 (Foundational Principles of the Law of War).49 Refer to § 2.1.2.2 (Law of War Principles as a General Guide).50 Refer to § 17.5 (Principle of Distinction in NIAC).51 See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 436 (1902) (“But whatever view might be taken of the question ofdelivering over foreign seamen in the absence of a treaty, we are of opinion that the treaty with Russia havingcontained a convention upon this subject, that convention must alone be looked to in determining the rights of theRussian authorities to the reclamation of the relator. Where the signatory powers have themselves fixed the termsupon which deserting seamen shall be surrendered, we have no right to enlarge those powers upon the principles ofcomity so as to embrace cases not contemplated by the treaty. Upon general principles applicable to theconstruction of written instruments, the enumeration of certain powers with respect to a particular subject-matter is anegation of all other analogous powers with respect to the same subject-matter. As observed by Lord Denham inAspdin v. Austin, ‘where parties have entered into written engagements with express stipulations, it is manifestly notdesirable to extend them by any implications; the presumption is that, having expressed some, they have expressedall the conditions by which they intend to be bound under that instrument.’ The rule is curtly stated in the familiarlegal maxim, Expressio unius est exclusio alterius.”) (internal citations omitted); The S.S. Wimbledon, (UnitedKingdom, France, Japan v. Germany) (Judgment), 1923 P.C.I.J. (series A) No. 1, at 23-24 (“Although the KielCanal, having been constructed by Germany in German territory, was, until 1919, an internal waterway of the stateholding both banks, the Treaty has taken care not to assimilate it to the other internal navigable waterways of theGerman Empire. A special section has been created at the end of Part XII, dealing with ports, waterways andrailways, and in this special section rules exclusively designed for the Kiel Canal have been inserted; these rulesdiffer on more than one point from those to which other internal navigable waterways of the Empire are subjected byArticles 321 to 327. … The provisions relating to the Kiel Canal in the Treaty of Versailles are therefore selfcontained;if they had to be supplemented and interpreted by the aid of those referring to the inland navigablewaterways of Germany in the previous Sections of Part XII, they would lose their ‘raison d’être’, such repetitions asare found in them would be superfluous and there would be every justification for surprise at the fact that, in certaincases, when the provisions of Articles 321 to 327 might be applicable to the canal, the authors of the Treaty shouldhave taken the trouble to repeat their terms or re-produce their substance.”).1019