The Continuing Role of Custom in the Formation of International Humanitarian Law*
Two recent events demonstrate the renewed vitality of customary law in the development of the law of war (international humanitarian law): first, the Tadić decision of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugo- slavia since 1991;1 and, second, the decision of the International Committee of the Red Cross (ICRC) to embark on a study of customary international law.
In its Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, of October 2, 1995, the appeals chamber of the Hague Tribunal decided that the Tribunal has subject matter jurisdiction over the Tadić case. The Tribunal's important contribution to the evolution of customary law presents a number of methodological questions that I would like to explore.
In a recent Editorial in this Journal, Judge George Aldrich discussed the jurisdictional aspects of the Tadić decision.2 While questioning the Tribunal's decision not to determine whether the armed conflicts involved in that case were international or nonintemational (I agree with Judge Aldrich that the Tribunal could have found the conflicts to be of an international character), Aldrich pointed to one advantage resulting from that approach: finding that the conflicts were international would____________________