The Geneva Conventions as Customary Law

TLDR

The customary character of the 1949 Geneva Conventions is rarely questioned, yet its legal significance matters for states that must enact domestic legislation to implement the treaties. The ICJ’s recent case shows that while lack of domestic legislation does not alter a state's international obligations under the Conventions, treating the norms as customary rather than treaty law can be essential for protecting individuals.

Abstract

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.