Together
with treaties, customary law is one of the principal sources or
components of international humanitarian law (IHL). It results from
a general and consistent practice of States that is followed by
them from a sense of legal obligation. The most obvious significance
of a norm—a principle or rule—of a customary character
is that it binds States that are not parties to the treaty in which
the norm is restated. It is, of course, not the treaty provision,
but the customary norm with identical content that binds such States.
Customary law is important also for filling in matters inadequately
covered by humanitarian law treaties. The fact that a norm is customary
has also a significance for the applicable rules of interpretation
and may have the beneficial effect of limiting the power of States
to make reservations or to denounce those treaties of IHL which
have a high customary law content. A State cannot opt out of its
duty to conform to a general international law. The recognition
that an IHL treaty states customary law strengthens the moral claim
of the international community for its observance by emphasizing
its moral character and deep roots in community values.
The decisions on customary humanitarian law of the Hague Tribunal
for the former Yugoslavia are the linear successors to the decisions
of the Nuremberg Tribunals. In both Nuremberg and The Hague, the
tribunals looked primarily to the belief of States that certain
principles are legally binding rather than to the practice of States
in reaching their decisions. These decisions were supportive of
an expansive view of customary law. Courts and tribunals tend to
rely not on battlefield practice but on verbal statements in which
States or institutions (for example, UN organs) express support
for principles of IHL. Although they adhere to the traditional twin
requirements (practice and the psychological belief that such practice
is legally binding) for the formation of customary humanitarian
law, in effect they weigh statements both as evidence of practice
and as articulation of the psychological belief, which in the formation
of humanitarian and human rights law is critical. The emphasis on
the psychological element helps compensate for scarcity of supporting
practice.
How to treat violations continues to be an important question. Both
scholarly and judicial sources have shown reluctance to reject as
customary norms—because of contrary practice—rules whose
content merits customary law status, perhaps because of the recognition
that humanitarian principles express basic community values and
are essential for the preservation of public order. Even repeated
violations are often not regarded as negations of customary law
provided they are responded to by protests or condemnations by other
States or international organizations, and that the State accused
either denies the facts of its questionable conduct or appeals to
exceptions or justifications contained in the rule itself.
There is considerable judicial and scholarly support, which is also
endorsed by the International Committee of the Red Cross (ICRC),
that the rules contained in the four Geneva Conventions of 1949
for the Protection of Victims of War and in the Hague Convention
(IV) of 1907 on the Laws and Customs of War on Land (except for
administrative, technical, and logistical provisions) reflect customary
law. It is also widely recognized that many, perhaps even most,
of the provisions, principles, and rules contained in Additional
Protocol I to the Geneva Conventions and some, perhaps even many,
of the provisions contained in Additional Protocol II reflect customary
law. Several rules pertaining to types of weapons, and especially
the prohibition on the use of chemical weapons, are regarded as
customary.
A declaration of the significance of customary law is incorporated
into several IHL treaties, most notably in the so-called Martens
clause, named for its drafter, Feodor de Martens, the adviser to
the Russian Foreign Ministry at the beginning of the century. First
inserted in the preamble of the 1899 Hague Convention II, this provides
a minimum threshold of humanitarian treatment by combatants even
in the absence of specific treaty language. “Until a more
complete code of the laws of war is issued, the High Contracting
Parties think it right to declare that in cases not included in
the Regulations adopted by them, populations and belligerents remain
under the protection and the empire of the principles of international
law, as they result from the usages established between civilized
nations, from the laws of humanity, and the requirements of the
public conscience.”
The Rome Statute of the International Criminal Court codifies many
rules and principles of IHL as customary criminal law.
In any discussion of customary law, sight must not be lost of the
fact that the Geneva Conventions have attained practically universal
ratification and that the Additional Protocols have gained many
ratifications. For States parties to the IHL treaties, all treaty
provisions, no matter whether they reflect customary law or not,
are of course binding. In the national law of many countries, however,
customary law is a part of the law of the land. As such, it may
be invoked by victims of violations of IHL or human rights law.
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