Role of Customary International Law in International Humanitarian Law


One of the most important features of International Humanitarian Law is treaties. Treaties are an essential element because they are agreements that provide precise instructions. Customary international law on the other hand is unwritten and therefore it seems that it can not regulate armed conflicts. However, customary international law has a very important role to play in International humanitarian Law. It fills the gap in existing conventional law. It is important in developing fields of International Humanitarian Law such as international criminal law and non-international armed conflicts. To non-international armed conflicts, very few conventional rules apply. There are 19 such articles that are applicable in this situation and there are 18 articles that form the substance of Additional Protocol II. In international armed conflicts, all conventional rules are applicable. Why should a person have better protection in international armed conflict than in non-international armed conflict? There could be similar or even worse atrocities that can occur. To reduce the impact of this gap, Customary international law has been used. A number of rules of conventional International Humanitarian Law regarding the conduct of hostilities have acquired a customary character. A person can only be prosecuted for a crime of war if the crime is prescribed by law. In treaties, there are only a few lists of war crimes for which a person can be prosecuted for committing. The situation is worse in non-international armed conflicts where there is no list of war crimes. Customary law has been used to identify additional war crimes, including non-international armed conflicts, thus providing a basis for the prosecution of individuals. Therefore Customary International Law has a very important role to play in International humanitarian Law.


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