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The Continuing Role of Custom in the Formation of International Humanitarian Law

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
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Type
Editorial Comments
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American Journal of International Law , Volume 90 , Issue 2 , April 1996 , pp. 238 - 249
Copyright
Copyright © American Society of International Law 1996

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Footnotes

*

I have assisted the Prosecutor, Justice Richard Goldstone, in the jurisdictional aspects of the Tadić case, but the views expressed in this Editorial are mine only. I wish to express gratitude for their comments to George H. Aldrich, Louise Doswald-Beck, Andreas F. Lowenfeld, John H. McNeill, Benedict Kingsbury, W. Michael Reisman and Oscar Schachter.

References

1 Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeal on Jurisdiction (Oct. 2, 1995), reprinted in 35 ILM 32 (1996) [hereinafter Tadić].

2 George Aldrich, Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, 90 AJIL 64 (1996).

3 Id. at 69.

4 Trial of German Major War Criminals, 1946, Cmd. 6964, Misc. No. 12, at 65.

5 11 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, at 462, 533–35 (1948).

6 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 114, paras. 218–20 (June 27) [hereinafter Nicaragua].

7 See Asbjørn Eide, Allan Rosas & Theodor Meron, Combating Lawlessness in Gray Zone Conflicts through Minimum Humanitarian Standards, 89 AJIL 215, 218 (1995).

8 Tadić, supra note 1, at 55, para. 99.

9 On widespread citation of textbooks and publicists by international arbitral tribunals, see Christine Gray & Benedict Kingsbury, Developments in Dispute Settlement: Inter-State Arbitration Since 1945, 63 Brit. Y.B. Int'l L. 97, 129 (1992). The International Court of Justice refrains from quoting teachings of named publicists or doctrine in its decisions. Shabtai Rosenne, The Law and Practice of the International Court of Justice 614–16 (2d ed. 1985). Dissenting and concurring decisions, however, do cite doctrine.

10 Armed conflict is “characterized by violence and violations, by the necessity of committing acts frequently not preceded by careful deliberation, by exceptional conditions, by limited third-party access to the theatre of operations, and by the parties' conflicting factual and legal justifications for their conduct.” Theodor Meron, Human Rights and Humanitarian Norms 44 (1989) (discussing lawmaking in die law of war area).

11 Richard Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 Brit. Y.B. Int'l L. 275, 300 (1965–66). Baxter stated that military manuals provide “telling evidence” of the practice of states. Id. at 282–83.

12 Nicaragua, 1986 ICJ Rep. at 98, para. 186, discussed in Meron, supra note 10, at 59–62.

13 Tadić, supra note 1, at 67–68, para. 127.

14 Id. at 51, para. 90.

15 Id. at 67, para. 126.

16 UN Doc. S/25704, annex, at 11 (1993), reprinted in 32 ILM 1192 (1993), adopted by SC Res. 827 (May 25, 1993), reprinted in id. at 1203.

17 Tadić, supra note 1, at 51, para. 89. See also id. at 49–50, para. 87.

18 Aldrich, supra note 2, at 68.

19 Tadić, supra note 1, at 70, para. 133.

20 Id. at 73, para. 141.

21 Id.

22 For the Statute of the Rwanda Tribunal, see SC Res. 955, annex (Nov. 8, 1994), reprinted in 33 ILM 1602 (1994).

23 On the nexus between crimes against humanity and armed conflict, see Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 554, 557 (1995) [hereinafter Criminalization]; Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AJIL 78, 85 (1994).

24 See Meron, Criminalization, supra note 23, at 574–77.

25 Tadić, supra note 1, at 51, para. 89. See also id. at 49–50, 71, paras. 87–88, 137; Aldrich, supra note 2, at 67–68.

26 Compare Christopher Greenwood, Customary Law Status of the 1977 Geneva Protocols, in Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven 93 (Astrid J. M. Delissen & Gerard J. Tanja eds., 1991). For an important discussion of the relationship of the Additional Protocols to general international law, see Georges Abi-Saab, The 1977 Additional Protocols and General International Law: Some Preliminary Reflections, in id. at 115. For an affirmation that common Article 3 is declaratory of customary international law, see Nicaragua, 1986 ICJ Rep. at 114, paras. 218–20.

27 This meeting was convened following a request addressed to the Swiss Government by the International Conference for the Protection of War Victims, which met in Geneva in 1993. Both the International Conference and the meeting were convened by the Swiss Government in its capacity as depositary of the Geneva Conventions and their Additional Protocols.

28 Report of the President of the Intergovernmental Group of Experts for the Protection of War Victims, 26th International Conference of the Red Cross and Red Crescent, Conf. Doc. 95/C.I/2/1, at 2 (1995).

29 ICRC, Statutes and Rules of Procedure of the International Red Cross Movement, Art. 5(2)(g) (1986).

30 Report on the Follow-Up to the International Conference for the Protection of War Victims, 26th International Conference of the Red Cross and Red Crescent, Commission I, Item 2, Doc. 95/ C.I/2/2, at 6 (1995) [hereinafter ICRC Report].

31 Oct. 10, 1980, 1342 UNTS 137.

32 Protocol IV was adopted on October 13, 1995, by the Review Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects. For the Protocol, see Conf. Doc. CCW/ CONF.I/7 (Oct. 12, 1995). The 26th International Conference of the Red Cross and Red Crescent welcomed the general agreement achieved at the Review Conference that the Protocol's scope of application will not be limited to international armed conflicts. 26th International Conference of the Red Cross and Red Crescent, Conf. Doc. PR/95/C.I/3, Rev.2, para. H(f). See also The Vienna Review Conference: Success on Blinding Laser Weapons But Deadlock on Landmines, 35 Int'l Rev. Red Cross 672 (1995).

33 Done June 17, 1925, 26 UST 571, 94 LNTS 65.

34 Done Jan. 13, 1993, 32 ILM 800 (1993).

35 ICRC Report, supra note 30, at 6.

36 Lawmaking thus has a number of distinct, but interrelated, aspects. For example, state parties may, through their practice, interpretations, etc., create additional layers of treaty norms, elaborating on or supplementing their conventional obligations, without affecting customary law. Perhaps with some nonparty involvement, they may create additional or interstitial norms that become accepted as customary law for all states. State parties and other states may also bring about the maturation into customary law of the norms stated in a convention, thus resulting in extending to all states (ratione personae) what was first lex scripta.

37 Nicaragua, 1986 ICJ Rep. at 95, para. 178.

38 Vienna Convention on the Law of Treaties, opened for signature Mzy 23, 1969, Art. 31(3)(b), 1155 UNTS 331.

39 Meron, Criminalization, supra note 23, at 555.

40 Richard R. Baxter, Treaties and Custom, 129 Recueil des Cours 27, 64 (1970 I), where Baxter defines the paradox as follows: “ [A]s the number of parties to a treaty increases, it becomes more difficult to demonstrate what is the state of customary international law dehors the treaty.” He explains further: “As the express acceptance of the treaty increases, the number of states not parties whose practice is relevant diminishes. There will be less scope for the development of international law dehors the treaty … . “ Id. at 73. For a discussion of the Baxter paradox, see generally Meron, supra note 10, at 50–51.

41 ICRC Report, supra note 30, at 6.

42 For excellent discussions of formation of customary law and the relationship between treaty and custom, see Oscar Schachter, International Law in Theory and Practice 70–76, 335–42 (1991). On the role of custom in the formation of human rights law, see Restatement (Third) of the Foreign Relations Law of the United States §702 (1987). For a different approach, see Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 12 Austl. Y.B. Int'l L. 82 (1992).

43 ICRC Report, supra note 30, at 7.

44 Theodor Meron, The Time Has Come for the United States to Ratify Geneva Protocol I, 88 AJIL 678, 681–82 (1994).

45 ICRC Report, supra note 30, at 7.

46 Id. at 7–8.

47 North Sea Continental Shelf (FRG v. Den.; FRG v. Neth.), 1969 ICJ Rep. 3, 42 (Feb. 29).

48 ICRC Report, supra note 30, at 8.