Customary law

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Decision on Command Responsibility - 16.07.2003 HADŽIHASANOVIĆ et al.

13.     […] Article 3 common to the Geneva Conventions of 1949, which has long been accepted as having customary status.[1] […]

[1] See Corfu Channel, Merits, I.C.J. Reports 1949, p.22, and Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1986, pp. 112 and 114.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)

113. In light of the object and purpose of the Geneva Conventions, which is to guarantee the protection of certain fundamental values common to mankind in times of armed conflict, and of the customary nature of their provisions,[1] the Appeals Chamber is in no doubt that State succession has no impact on obligations arising out from these fundamental humanitarian conventions.  In this regard, reference should be made to the Secretary-General’s Report submitted at the time of the establishment of the Tribunal, which specifically lists the Geneva Conventions among the international humanitarian instruments which are “beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise”.[2]  The Appeals Chamber finds further support for this position in the Tadić Jurisdiction Decision.[3]

[1]    Article 158, para 4, of Geneva Convention IV provides that the denunciation of the Convention “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”.  Further, Article 43 of the 1969 Vienna Convention on the Law of Treaties entitled “Obligations imposed by international law independently of a treaty” provides: “The invalidity, termination, or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation […] shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty”.

[2]    Secretary-General’s Report, para 34.

[3]    [Prosecutor v Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995], paras 79-85.

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