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that underlying principle. 136 For example, the United States has expressed support for thecustomary principle on which Article 51(3) of AP I is based, but has noted that Article 51(3) ofAP I, as drafted, does not reflect customary international law. 1371.8.2 State Practice. One part of determining whether a purported rule is customaryinternational law is to analyze whether there is a general and consistent practice of States thatsupports the purported rule.An analysis of State practice to determine whether a purported rule reflects the customaryinternational law of war should include consideration of, inter alia: (1) whether the Statepractice is extensive and virtually uniform; (2) actual operational practice; (3) the practice ofspecially affected States; and (4) contrary practice.1.8.2.1 Extensive and Virtually Uniform. State practice should be sufficientlydense and consistent to meet the “extensive and virtually uniform” standard generally requiredfor existence of a customary rule. 1381.8.2.2 Actual Operational Practice. An analysis of State practice should includean analysis of actual operational practice by States during armed conflict. Although manuals orother official statements may provide important indications of State behavior, they cannotreplace a meaningful assessment of operational State practice. 139136 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on theRelation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at theSixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 422 (1987) (“Inaddition, it may be possible in many cases to say that a general principle is an accepted part of customary law, but tohave considerable disagreement as to the precise statement of that general principle.”).137 Refer to § 5.9.1.2 (AP I, Article 51(3) Provision on Direct Participation in Hostilities).138 See, e.g., Harold Koh, Legal Adviser, Department of State, Responses to Questions Submitted by Senator RichardG. Lugar, in Libya and War Powers: Hearing Before the Committee on Foreign Relations, U.S. Senate, 112thCongress, First Session, 53, 57 (Jun. 28, 2011) (“Determining that a principle has become customary internationallaw requires a rigorous legal analysis to determine whether such principle is supported by a general and consistentpractice of states followed by them from a sense of legal obligation. Although there is no precise formula to indicatehow widespread a practice must be, one frequently used standard is that state practice must be extensive andvirtually uniform, including among States particularly involved in the relevant activity (i.e., specially affectedStates).”); North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic ofGermany v. Netherlands), 1969 I.C.J. 3, 43 (74) (“Although the passage of only a short period of time is notnecessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what wasoriginally a purely conventional rule, an indispensable requirement would be that within the period in question, shortthough it might be, State practice, including that of States whose interests are specially affected, should have beenboth extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred insuch a way as to show a general recognition that a rule of law or legal obligation is involved.”).139 U.S. RESPONSE TO ICRC CIHL STUDY 515 (“Second, we are troubled by the type of practice on which the Studyhas, in too many places, relied. Our initial review of the State practice volumes suggests that the Study places toomuch emphasis on written materials, such as military manuals and other guidelines published by States, as opposedto actual operational practice by States during armed conflict. Although manuals may provide important indicationsof State behavior and opinio juris, they cannot be a replacement for a meaningful assessment of operational Statepractice in connection with actual military operations. We also are troubled by the extent to which the Study relies31