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The Geneva Conventions as Customary Law

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
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Extract

At first glance, the question of the customary character of the Geneva Conventions of August 12, 1949 for the Protection of Victims of War might appear academic. After all, the question arises infrequently in view of the universal acceptance of the Conventions as treaties (they are binding on even more states than the Charter of the United Nations). That the matter may have practical importance, however, was recently brought home by its consideration by the International Court of Justice (ICJ) in the merits phase of Military and Paramilitary Activities in and against Nicaragua. Moreover, in numerous countries where customary law is treated as the law of the land but an act of the legislature is required to transform treaties into internal law, the question assumes importance if no such law has been enacted. Failure to enact the necessary legislation cannot affect the international obligations of these countries to implement the Geneva Conventions; but invoking a certain norm as customary rather than conventional in such situations may be crucial for ensuring protection of the individuals concerned.

Type
Research Article
Information
American Journal of International Law , Volume 81 , Issue 2 , April 1987 , pp. 348 - 370
Copyright
Copyright © American Society of International Law 1987

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References

1 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 UST 3114, TIAS No. 3362, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention No. Ill), Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

2 There are 164 states parties to the Geneva Conventions. International Committee of the Red Cross, Dissemination No. 5, August 1986. There are 159 member states of the United Nations. Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1985, at 3–6, UN Doc. ST/LEG/SER.E/4 (1986).

3 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

4 For a discussion of legislation implementing the Geneva Conventions, see Bothe, , The Role of National Law in the Implementation of International Humanitarian Law in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 300, 305–06 (Swinarski, C. ed. 1984)Google Scholar. Many states parties to the Geneva Conventions have not adopted such legislation. Levasseur & Merle, L’Etat des législations internes au regard des obligations eontenues dans les conventions internationales de droit humanitaires, in Droit humanitaire et conflits armés 219, 225, 228, 249 (Universite Libre de Bruxelles, 1976).

Only 49 governments answered an ICRC inquiry about legislative action taken to repress violations of the Geneva Conventions. This group included some governments that reported having taken no such action, e.g., Indonesia, Iraq, Lebanon, South Africa and Syria. International Committee of the Red Cross, Respect of the Geneva Conventions: Measures Taken to Repress Violations (Reports submitted by the International Committee of the Red Cross to the XXth and XXIst International Conferences of the Red Cross) (1971); Twenty-Fifth International Conference of the Red Cross, Respect for International Humanitarian Law: National Measures to Implement the Geneva Conventions and Their Additional Protocols in Peacetime 4 (Doc. C 1/2.4/2 1986). See also id. at 13.

The Israeli Supreme Court has refused to review the acts of the military Government on the West Bank in light of Geneva Convention No. IV on the ground that the law of the Convention is wholly conventional rather than declaratory of customary law and has not been transformed into the law of the land by legislation. See Cohen, , Justice for Occupied Territory? The Israeli High Court of Justice Paradigm 24 Colum. J. Transnat’l L. 471, 484–89 (1986)Google Scholar; Roberts, , What Is a Military Occupation? 54 Brit. Y.B. Int’l L. 249, 253 (1984)Google Scholar; Meron, , Applicability of Multilateral Conventions to Occupied Territories 72 AJIL 542, 543, 548–50 (1978)Google Scholar.

For views suggesting that some provisions of Convention No. IV are declaratory of customary law, see Dissenting Opinion of Justice H. Cohn in Kawasme v. Minister of Defence, 35(1) Piskei Din 617, summarized in 11 Isr. Y.B. Hum. Rts. 349, 352–54 (1981); Dinstein, , Expulsion of Mayors from Judea 8 Tel Aviv U.L. Rev. 158 (Hebrew, , 1981)Google Scholar; Meron, , West Bank and Gaza: Human Rights and Humanitarian Law in the Period of Transition 9 Isr. Y.B. Hum. Rts. 106, 111–12 (1979)Google Scholar.

5 See infra note 13.

6 Judge Morelli has emphasized that “the power to make reservations affects only the contractual obligation flowing from the convention,” adding that “[i]t goes without saying that a reservation has nothing to do with the customary rule as such. If that rule exists, it exists also for the State which formulated the reservation, in the same way as it exists for those States which have not ratified.” North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 198 (Judgment of Feb. 20) (Morelli, J., dissenting). See also Judgment, id. at 38– 40. Although the Judgment suggests that no reservations to conventional provisions that are declaratory of customary law are permissible, will the effect of such reservations not be (except as regards rules of jus cogens), as between the reserving state and the state accepting the reservation, similar to that produced by a treaty establishing a conventional rule, which displaces, inter partes, a rule of customary law? Henkin, L., Pugh, R., Schachter, O. & Smit, H., International Law: Cases and Materials 86–87 (2d ed. 1987)Google Scholar.

On reservations made by parties to the Geneva Conventions, see Pilloud, , Reservations to the Geneva Conventions of 1949 (pt. 1), Int’l Rev. Red Cross, No. 180, March 1976, at 107 CrossRefGoogle Scholar (Pilloud observes that customary law must be applied to determine the “extent” of the reservations made, id. at 108); and (pt. 2), Int’l Rev. Red Cross, No. 181, April 1976, at 163.

7 See Meron, T., Human Rights Law-Making in International Law: A Critique of Instruments and Process 194 (1986)Google Scholar.

8 The International Law Commission (ILC) has observed that “some of [the rules of humanitarian law] are, in the opinion of the Commission, rules which impose obligations of jus cogens.” Report of the International Law Commission on the work of its thirty-second session, 35 UN GAOR Supp. (No. 10) at 98, UN Doc. A/35/10 (1980).

9 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 31 (Judgment of May 24).

A case for a particular interpretation of conventional rules (e.g., Arts. 87 and 100 of Geneva Convention No. Ill) is strengthened by its concordance with “commonly accepted international law.” Public Prosecutor v. Koi, [1968] 1 All E.R. 419, 425.

10 See Meron, , On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument 77 AJIL 589, 593 (1983)Google Scholar [hereinafter cited as Inadequate Reach]. On the relationship between human rights law and humanitarian law, see also Meron, T., Human Rights in Internal Strife: Their International Protection 3–70 (1987)Google Scholar. See also Kunz, , The Laws of War 50 AJIL 313, 316 (1956)Google Scholar.

11 See generally the following reports by Americas Watch Committee, Violations of the Laws of War by Both Sides in Nicaragua 1981–1985 (1985); Violations of the Laws of War by Both Sides in Nicaragua 1981–1985, First Supplement (June 1985); Human Rights in Nicaragua 1985–1986 (1986).

Common Article 3 reads as follows:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

  • (1)

    (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

    To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above–mentioned persons:

    • (a)

      (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

    • (b)

      (b) taking of hostages;

    • (c)

      (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

    • (d)

      (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

  • (2)

    (2) The wounded and sick shall be collected and cared for . . . .

12 1986 ICJ Rep. at 113, para. 218.

13 Common Article 63/62/142/158 provides that the denunciation of one of the Conventions:

shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.

A state that denounces one of the Geneva Conventions “would nevertheless remain bound by the principles contained in it insofar as they are the expression of. . . customary international law.” Pictet (ed.), infra note 15, at 413.

14 1986 ICJ Rep. at 114, para. 220. Elsewhere in its Judgment the Court stated, in the same vein, “that general principles of humanitarian law include a particular prohibition [to refrain from encouraging persons or groups to commit violations of Article 3], accepted by States, and extending to activities which occur in the context of armed conflicts, whether international in character or not.” Id. at 129, para. 255.

15 Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 26 (J. Pictet ed. 1952) (emphasis added). The Commentary adds that “in the event of a Power failing to fulfil its obligations, the other Contracting Parties . . . may, and should, endeavour to bring it back to an attitude of respect for the Convention.” Id.

The 1958 Commentary on Geneva Convention No. IV went further, adding that “[t]he proper working of the system of protection provided by the Convention demands in fact that the Contracting Parties should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally.” Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 16 (Uhler, O. & Coursier, H. eds. 1958)Google Scholar. The 1958 Commentary states that the words “in all circumstances” (common Article 1) do not cover the case of civil war and apply to international armed conflicts only. Id. See also Pictet (ed.), supra, at 27.

16 Thus, the (Geneva) Prisoners of War Convention, opened for signature July 27, 1929, 47 Stat. 2021, TS No. 846, provided only (Article 82) that “[t]he provisions of the present Convention must be respected by the High Contracting Parties under all circumstances.” For an excellent discussion of Article 82, see Condorelli & Boisson de Chazournes, Quelques Remarques à propos de l’obligation des Etats de “respecter et faire respecter” le droit international humanitaire “en Unite circonstances,” in Swinarski (ed.), supra note 4, at 17, 18–19.

The obligation “to ensure respect” is reiterated in Article 1(1) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature Dec. 12, 1977, 16 ILM 1391 (1977), but not in the Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non–International Armed Conflicts (Protocol II), opened for signature, Dec. 12, 1977, 16 ILM 1442 (1977).

17 Baxter has observed that

[t]he passage of humanitarian treaties into customary international law might . . . be justified on the ground that each new wave of such treaties builds upon the past conventions, so that each detailed rule of the Geneva Conventions for the Protection of War Victims is nothing more than an implementation of a more general standard already laid down in an earlier convention, such as the Regulations annexed to Convention No. IV of The Hague.

Baxter, , Multilateral Treaties as Evidence of Customary International Law 41 Brit. Y.B. Int’l L. 275, 286 (1965–66)Google Scholar.

18 Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain) (New Application), 1970 ICJ Rep. 4, 32 (Judgment of Feb. 5). See also Comité International de la Croix-Rouge, Commentaire des Protocoles Additionnels 36–37 (Sandoz, Y., Swinarski, C. & Zimmermann, B. eds. 1986)Google Scholar.

19 Condorelli & Boisson de Chazournes, supra note 16, at 27. For a discussion of practice, see id. at 26–29.

20 North Sea Continental Shelf Cases, 1969 ICJ Rep. at 43. Baxter has observed that the Court “quite properly looked exclusively to the conduct of non-parties in attempting to determine whether the treaty, in its law-creating aspect, was binding on all nations.” Baxter, , Treaties and Custom 129 Recueil des Cours 27, 64 (1970 I)Google Scholar. See also Bos, , The Identification of Custom in International Law 25 Ger. Y.B. Int’l L. 9, 27–28 (1982)Google Scholar.

On treaties and custom, see generally D’Amato, A., The Concept of Custom in International Law 103–08, 160–64 (1971)Google Scholar; Thirlway, H., International Customary Law and Codification 80–84 (1972)Google Scholar; Akehurst, , Custom as a Source of International Law 47 Brit. Y.B. Int’l L. 1 (1974–75)Google Scholar; Sohn, , The Law of the Sea: Customary International Law Developments 34 Am. U.L. Rev. 271 (1985)Google Scholar. For a reply to Sohn, see Charney, International Agreements and the Development of International Law, id. at 971. See also Sohn, , Unratified Treaties as a Source of Customary International Law in Realism in Law-Making: Essays On International Law in Honor of Willem Riphagen 231 (Bos, A. & Siblesz, H. eds. 1986)Google Scholar; Sohn, , “Generally Accepted” International Rules 61 Wash. L. Rev. 1073 (1986)Google Scholar.

21 See Article 26 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

22 See Meron, , On a Hierarchy of International Human Rights 80 AJIL 1, 15 (1986)Google Scholar. Condorelli and Boisson de Chazournes, supra note 16, at 33, appear to suggest that the whole of humanitarian law constitutes jus cogens.

23 1970 ICJ Rep. at 32.

24 Judge Schwebel, while questioning whether the delict of “encouragement” exists in customary law, agreed that such encouragement may constitute a violation of the treaty obligation to “ensure respect” for the Geneva Conventions. 1986 ICJ Rep. at 388–89 (Schwebel, J., dissenting). Judge Schwebel’s observations on customary law find support in the commentary adopted by the ILC in 1978 on Article 27 of its draft articles on state reponsibility (pt. 1). The ILC stated that “[i]n the international legal order . . . it is more than doubtful that mere incitement by a State of another State to commit a wrongful act is in itself an internationally wrongful act.” Report of the International Law Commission on the work of its thirtieth session, 33 UN GAOR Supp. (No. 10) at 187, 244, UN Doc. A/33/10 (1978). It is less clear, however, whether the ILC intended to address humanitarian norms, which are norms erga omnes and sometimes even jus cogens. Indeed, in its commentary on Article 33 of its draft articles on state responsibility (pt. 1), adopted in 1980, the ILC indicated that state of (military) necessity cannot excuse noncompliance with rules of humanitarian law even with regard to those obligations which are not obligations jus cogens. Report of the International Law Commission on the work of its thirty-second session, supra note 8, at 98. The ILC added that a state of necessity cannot be invoked if that is expressly or implicitly prohibited by a conventional instrument, as in the case of humanitarian instruments. Id. at 99,108. Such instruments are obviously nonderogable.

25 1986 ICJ Rep. at 114, para. 219.

26 Id. On the characterization of conflicts in international humanitarian law, see Meron, Inadequate Reach, supra note 10, at 603; Schindler, , International Humanitarian Law and Internationalized Internal Armed Conflicts Int’l Rev. Red Cross, No. 230, September–October 1982, at 255, 258CrossRefGoogle Scholar; Baxter, , Jus in Bello Interno: The Present and Future Law in Law And Civil War in the Modern World 518, 523–24 (Moore, J. ed. 1974)Google Scholar; Gasser, , Internationalized Non-international Armed Conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon 33 Am. U.L. Rev. 145 (1983)Google Scholar.

27 1986 ICJ Rep. at 114, paras. 218–19.

28 The ICRC Commentary on Geneva Convention No. I emphasizes that Article 3 applies to noninternational conflicts only. Pictet (ed.), supra note 15, at 48.

29 Id. at 38, 41.

30 Id. at 50.

31 Brownlie, I., Principles of Public International Law 29 (3d ed. 1979)Google Scholar.

The fact that the content of a norm reflects important considerations of humanity should promote its acceptance as customary law. Thus, in explaining why the Geneva Conventions can be regarded as approaching “international legislation,” Sir Hersch Lauterpacht stated, among other reasons, that “many of the provisions of these Conventions, following as they do from compelling considerations of humanity, are declaratory of universally binding international custom.” 1 Lauterpacht, H., International Law: Collected Papers 115 (Lauterpacht, E. ed. 1970)Google Scholar.

32 Restatement of Foreign Relations Law of the United States (Revised) §702 (Tent. Draft No. 6, vol. 1, 1985) [hereinafter cited as Restatement (Revised)]. For the text of Article 3, see supra note 11.

33

This [deletion of a reference to the law of nations] is justified by the fact that the attempt to establish rules for a non–international conflict only goes back to 1949 and that the application of common Art. 3 in the practice of States has not developed in such a way that one could speak of “established custom” regarding non-international conflicts.

Bothe, M., Partsch, K. & Solf, W., New Rules for Victims of Armed Conflicts 620 (1982)Google Scholar. See also infra note 52.

34 Judge Jennings stated that there must be at least very serious doubts whether the Geneva Conventions could be regarded as embodying customary law and that the Court’s view of Article 3 “is not a matter free from difficulty.” 1986 ICJ Rep. at 537 (Jennings, J., dissenting). Judge Ago observed that he was

most reluctant to be persuaded that any broad identity of content exists between the Geneva Conventions and certain “fundamental general principles of humanitarian law”, which, according to the Court, were pre-existent in customary law, to which the Conventions “merely give expression” (para. 220) or of which they are at most “in some respects a development” (para. 218).

1986 ICJ Rep. at 184, para. 8 (Ago, J., sep. op.).

35 See T. Meron, supra note 10, at 43–44, 47. See generally Obradovic, Que faire face aux violations du droit humanitaire?—quelques réflexions sur le rôle possible du CICR, in Swinarski (ed.), supra note 4, at 483; Farer, , Humanitarian Law and Armed Conflicts: Toward the Definition of “International Armed Conflict,” 71 Colum. L. Rev. 37, 52–61 (1971)Google Scholar. See also infra note 78.

36 The U.S. manual states that the Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention No. IV, 36 Stat. 2277, TS No. 539, 1 Bevans 631, and the “general principles” of the (Geneva) Prisoners of War Convention, supra note 16, “have been held to be declaratory of the customary law of war, to which all States are subject.” The manual observes that provisions of lawmaking treaties regarding the conduct of warfare “are in large part but formal and specific applications of general principles of unwritten law.” U.S. Dep’t of the Army, The Law of Land Warfare 6 (Field Manual No. 27–10, 1956). See also 2 U.S. Dep’t of the Army, International Law 249 (Pamphlet No. 27–161–2, 1962). 37 War Office, The Law of War on Land Being Part III of the Manual of Military Law 1, 4 (1958). The manual regards the Hague Regulations as embodying rules of customary international law. Id. at 4. See also Report of the Secretary-General on Respect for Human Rights in Armed Conflicts, UN Doc. A/7720, at 22 (1969).

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

39 In re Hirota, 15 Ann. Dig. 356, 366. The Tribunal stated that “acts of inhumanity to prisoners which are forbidden by the customary law of nations as well as by conventions are to be prevented by the Government having responsibility for the prisoners.” Id.

40 11 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, at 462 (1948) [hereinafter cited as Trials of War Criminals].

41 Id. at 534–35. The Nuremberg Tribunal cited with approval Admiral Canaris’s remarkable protest against the German regulations for the treatment of Soviet prisoners of war. His protest stated that the regulations were based on a “fundamentally different viewpoint” from that underlying the principles of international law: “Since the 18th century these have gradually been established along the lines that war captivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war.” The admiral concluded that while the Geneva Convention was not, the principles of international law on the treatment of prisoners were binding on Germany vis-à-vis the Soviet Union. Id. at 533.

42 Id. at 535.

43 Baxter, supra note 17, at 282.

44 Von Leeb, supra note 40, at 534. The Tribunal concluded that because of the “uncertainty of international law . . . orders providing for . . . use [of prisoners of war in the construction of fortifications outside of] dangerous areas, were not criminal upon their face.” Id.

45 We point out that army regulations are not a competent source of international law. They are neither legislative nor judicial pronouncements. . . . [But] it is possible. . . that such regulations, as they bear upon a question of custom and practice in the conduct of war, might have evidentiary value, particularly if the applicable portions had been put into general practice. It will be observed that the determination, whether a custom or practice exists, is a question of fact. United States v. List, 11 Trials of War Criminals, supra note 40, at 1230, 1237.

The U.S. field manual, supra note 36, at 3, states that its purpose “is to provide authoritative guidance to military personnel on the customary and treaty law applicable to the conduct of warfare on land and to relationships between belligerents and neutral States.” I agree with Baxter that such manuals provide “telling evidence” of the practice of states. Baxter, supra note 17, at 283.

46 Baxter, supra note 20, at 52. For other evidence of state practice, see also the U.S. field manual, supra note 36, at 6.

47 1986 ICJ Rep. at 98–108, paras. 187–205. The Court’s approach has significant antecedents in earlier cases. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 31–32 (Advisory Opinion of June 21); Western Sahara, 1975 ICJ Rep. 12, 30– 37 (Advisory Opinion of Oct. 16).

In discussing the Court’s view (in the Nicaragua case) that “voting for a norm-declaring resolution is an exercise in opinio juris,” Professor Franck warns:

The effect of this enlarged concept of the lawmaking force of General Assembly resolutions may well be to caution states to vote against “aspirational” instruments if they do not intend to embrace them totally and at once, regardless of circumstance. That would be unfortunate. Aspirational resolutions have long occupied, however uncomfortably, a twilight zone between “hard” treaty law and the normative void.

Franck, , Some Observations on the ICJ’s Procedural and Substantive Innovations 81 AJIL 116, 119 (1987)Google Scholar.

A tendency similar to that of the ICJ can be found also in decisions of national courts on the customary law of human rights: e.g., in the emphasis by Judge Kaufman on international and domestic normative instruments prohibiting torture, on government statements and on scholarly opinion, in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); in the focus on normative instruments to determine the prohibition in international customary law of arbitrary detention, Rodriguez-Fernandez v. Wilkinson, 505 F.Supp. 787, 796–800 (D. Kan. 1980), aff’d on other grounds, 654 F.2d 1382 (1981); and in the recognition of the principle of diplomatic immunity (in the case of Raoul Wallenberg), Von Dardel v. Union of Soviet Socialist Republics, 623 F.Supp. 246, 261 (D.D.C. 1985). Compare Schachter’s list of types of evidence adduced to support a finding that a particular human right is a part of customary law, International Law in Theory and Practice, 178 Recueil des Cours 11, 334–35 (1982 V). See also Schrader, , Custom and General Principles as Sources of International Law in American Federal Courts 82 Cal. L. Rev. 751, 762–68 (1982)Google Scholar. On practice creating customary human rights, see also Restatement (Revised), supra note 32, §701 Reporters’ Note 2. See also Gerstel, & Segall, , Conference Report: Human Rights in American Courts 1 Am. U.J. Int’l L. & Pol. 137, 162 & nn. 79–80 (1986)Google Scholar. For a critique of Filartiga and Rodriguez-Fernandez, see Oliver, , Problems of Cognition and Interpretation in Applying Norms of Customary International Law of Human Rights in United States Courts 4 Hous. J. Int’l L. 59, 60 (1981)Google Scholar.

48 Baxter, supra note 17, at 300.

49 See generally Meron, , The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination 79 AJIL 283, 317–18 (1985)Google Scholar.

50 The Preamble to Hague Convention No. IV, supra note 36, expresses this approach with rare candor:

Animated by the desire to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilization;

Thinking it important, with this object, to revise the general laws and customs of war . . . confining them within such limits as would contain their severity as far as possible;

. . . inspired by the desire to diminish the evils of war, as far as military requirements permit . . . .

51 O. Uhler & H. Coursier (eds.), supra note 15, at 620. Regarding the antecedents of Geneva Conventions Nos. I–II. see Dinstein, , Human Rights in Armed Conflict in 2 Human Rights in International Law: Legal and Policy Issues 345, 346 (Meron, T. ed. 1984)Google Scholar.

However, as regards protection of private property, the Hague Regulations provide the basic principles, while Geneva Convention No. IV states a number of supplementary rules.

52 See Strebel, , Martens’ Clause [Instalment] 3 Encyclopedia of Public International Law 252 (Bernhardt, R. ed. 1982)Google Scholar. The Martens clause reads as follows:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

The Martens clause appears also, in modified form, in the common article on the denunciation of the Geneva Conventions (63/62/142/158); in Article 1(2) of Protocol I, supra note 16; in the Preamble to Protocol II, supra note 16; and in the Preamble 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, opened for signature Apr. 10, 1981, UN Doc. A/CONF.95/15 (1980), reprinted in 19 ILM 1524 (1980).

53 Baxter, supra note 20, at 64, 73. Chantey points out:

In cases where . . . widespread adherence to the agreement exists, substantial evidence of state actions taken in circumstances where the agreement is not directly applicable may be hard to obtain. As a consequence, support for new rules of customary law will have to be found in the agreement and in secondary evidence derived from writers, and perhaps in self-serving official state policy statements.

Charney, supra note 20, at 990.

54 Baxter, supra note 20, at 96.

55 1969 ICJ Rep. at 43.

56 See Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), Advisory Opinion No. OC-2/82 of Sept. 24, 1982, Inter-American Court of Human Rights, ser. A: Judgments and Opinions, No. 2 (1982); Ireland v. United Kingdom, 25 Publications of the Eur. Ct. Human Rights, ser. A: Judgments and Decisions, para. 239 (1978); Reservations to the Convention on Genocide, 1959 ICJ Rep. 15, 23 (Advisory Opinion of May 28); T. Meron, supra note 7, at 146–47.

57 1969 ICJ Rep. at 42. More recently, the Court stated that

[i]t is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them. . . . [I]t cannot be denied that the 1982 Convention [United Nations Convention on the Law of the Sea] is of major importance, having been adopted by an overwhelming majority of States; hence it is clearly the duty of the Court, even independently of the references made to the Convention by the Parties, to consider in what degree any of its relevant provisions are binding upon the Parties as a rule of customary international law.

Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13, 29–30 (Judgment of June 3). The Court’s verbal protestation of the importance of practice and opinio juris for the establishment of customary law is not necessarily followed by the Court’s truly seeking to identify the relevant practice. Charney thus observes that the Court fails to identify “the actual evidence of state practice upon which [it] purports] to rely.” Charney, supra note 20, at 995. On the ICJ’s diminishing investigation of the existence of practice and opinio juris in the formation of customary law, see Haggenmacher, , La Doctrine des deux éléments du droit coutumier dans la pratique de la Cour Internationale 90 Revue Générale de Droit International Public 5, 111–14 (1986)Google Scholar.

58 Sinclair, I., The Vienna Convention on the Law of Treaties 23 (2d ed. 1984)Google Scholar (referring, primarily, to the statement by the Court to be found in 1969 ICJ Rep. at 41).

59 See supra text accompanying note 57.

60 1969 ICJ Rep. at 228 (Lachs, J., dissenting).

61 1969 ICJ Rep. at 41.

62 Professor D’Amato alludes to this difficulty in The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110, 1141 (1982).

The distinction between an opinio juris generate and an opinio obligations conventionalis has already been made by Professor Cheng. Cheng, , Custom: The Future of General State Practice in a Divided World in The Structure and Process of International Law 513, 532–33 (Macdonald, R. & Johnston, D. eds. 1983)Google Scholar. In a different context (concerning the adoption of a treaty at an international conference), Professor Sohn speaks of opinio juris in the sense that the provisions of a convention “are generally acceptable.” Sohn, “Generally Accepted” International Rules, supra note 20, at 1078. He considers a multilateral convention “not only as a treaty among the parties to it, but as a record of the consensus of experts as to what the law is or should be.” Sohn, Unratified Treaties as a Source of Customary International Law, supra note 20, at 239.

63 I. Sinclair, supra note 58, at 256.

64 See Baxter, supra note 20, at 73. See also Sohn, “Generally Accepted” International Rules, supra note 20, at 1074–75.

65 1986 ICJ Rep. at 96, para. 179. See also id. at 93–95, paras. 174–77.

66 Dinstein argues that because Geneva Convention No. IV had not been applied between its adoption in 1949 and the Six-Day War (1967), there was no practice that could have been relied upon for the transformation of the Convention’s norms into customary law. Dinstein, supra note 4, at 167–68.

67 See T. Meron, supra note 10, at 135–39; Meron, Inadequate Reach, supra note 10; Meron, , Towards a Humanitarian Declaration on Internal Strife 78 AJIL 859 (1984)CrossRefGoogle Scholar.

68 See Vienna Convention on the Law of Treaties, supra note 21, Arts. 31 and 41. See also I. Sinclair, supra note 58, at 138.

69 See, e.g., Restatement (Revised), supra note 32, §702. Compare Schachter, supra note 47, at 97–98.

70 See Baxter, supra note 17.

71 See Schachter, supra note 47, at 334–35. Schachter observes that “value-judgments are always implicit in the recognition of practice as law.” Id. at 96.

72 Id. at 336.

See the exchange between Watson and Sohn on the significance of the discrepancy between human rights and the reality of state practice, Watson, Legal Theory, Efficacy and Validity in the Development of Human Rights Norms in International Law, 1979 U. Ill . L.F. 609, 626–35; Sohn, , The International Law of Human Rights: A Reply to Recent Criticisms 9 Hofstra L. Rev. 347, 350–51 (1981)Google Scholar.

73 Schachter, supra note 47, at 336.

74 1986 ICJ Rep. at 98, para. 186.

75 Id. at 109, para. 207.

76 See supra text accompanying note 74.

77 Charney, , The Power of the Executive Branch of the United States Government to Violate Customary International Law 80 AJIL 913, 916 (1986)Google Scholar.

78 With some exceptions, e.g., Iran’s claim that Iraqi POWs should be treated according to the dictates of the Koran, which claim implies the subordination to the Koran of Geneva Convention No. III (see UN Doc. S/16962, at 38,42 (1985)), states tend to avoid a frontal challenge to the Conventions, preferring instead to justify their discordant practices on differences between the conflicts presently encountered and those for which these instruments were originally adopted. Aldrich, , Human Rights and Armed Conflict: Conflicting Views 67 ASIL Proc. 141, 142 (1973)Google Scholar; Roberts, supra note 4, at 279–83.

The recent resolution on Respect for International Humanitarian Law in Armed Conflicts and Action by the ICRC for Persons Protected by the Geneva Conventions highlighted violations of the Geneva Conventions and “a disturbing decline in the respect of international humanitarian law” and acknowledged that “disputes about the legal classification of conflicts too often hinder the implementation of international humanitarian law.” 25th International Conference of the Red Cross, Doc. P.I/CI, Ann. 1 (1986).

Professor Henkin has cogently observed that to reduce the “cost” of violating the law, states will often highlight ambiguities about the facts and their proper characterization, as well as uncertainties about the applicable norm. See Henkin, L., How Nations Behave 70 (1968)Google Scholar.

79 I am addressing here the question of the number and the extent of the reservations actually made rather than the question whether a particular reservation is compatible with the purpose and object of the Convention or is prohibited. See generally Baxter, supra note 17, at 285; Baxter, supra note 20, at 48–52.