Custom and cultural norms as a source of International criminal law

According to Article 38 (1) (b) of the International Court of Justice’s Statute ‘international custom’ refers to the source through which international law derives which requires the fulfillment list of criminal lawyers in bangalore of two practices- one is that of opinio Juris sive necessitatis which is also known as opinio Juris and the feature of jus cogens. Although, treatises and conventions have replaced the customary law with the pacing time. Yet, customs do have a significant role to play in shaping the law. But as all treaties cannot become a part of the law, the same applies to the customs too, in fact, there are certain requisites for a custom to become law.

Pre-requisites for a custom to be a valid custom
For a custom or any cultural norm to become law it has to fulfill the following conditions:

Opinio Juris
Usually, for a custom to prevail as a law in nation-state practice the fulfillment of it is not required but it is not in the case of International Criminal Law where it is the fundamental requirement. According to this concept or principle, the nation-state should not only have the pretext that there is a certain notion to be followed but as a matter of fact, there should be an actual practice of such custom. But if the custom is practiced that does not create any obligatory role that it has to be accepted as a law like for instance during the time of world war nuclear weapons were much employed, now that does not give out the sound reason that it should be followed in present times too. Such practices could be given up which necessarily cause much more injury to humanity.

Jus cogens
According to the principle or concept of jus cogens, there should be the existence of such strong laws that it overrides all the other sources of law, maybe the existing ones which are recognised too at some instances. Generally, this principle includes doing some act or abstinence by the state or being enforced against its citizens. The act prohibited or abstained from doing may include war crimes such as perfidy, genocide, slavery, torture or any crime against humanity for that matter. It may also prohibit waging war or inciting hatred and violence against nation-states. Apart from these requirements, there are other requisites which include reasonability, antiquity, etc.

Reasonability
A custom should be sound and reasonable. Malus uses abolendus est as the basic principle behind it. According to this concept, the authority is not absolute; rather the customs should conform with the ideal justice and requirement of the public. If a custom disregards the welfare of the nation-states then it would be obsolete lacking the legal efficacy.

Conformance with the existing statutory laws
It should be in adherence with the existing laws, it can override the prevailing ones in the case if they turn out to eclipse the proper justice mechanism. This also adds up to the point that it should be consistent with moral rights?

Immemorial antiquity
It should have existed since time immemorial so that no evidence of its existence could be drawn up. But if any custom lags with the other requirements then solely existence of it beyond human memory cannot be the basis of its validity. Other than these it should also take note of other requirements like- continuity, certainty or consistency, feasibility and peacefulness.

Conclusion
Customs have been prevailing since ancient times. These cultural or moral norms, and maintaining the government’s efficiency practices have been the source of International Criminal Law and have played a role in shaping and developing these laws. There are various theories regarding at what instance can the custom be formulated into laws.

Although their use has been quite reserved with the advent of time pacing, they aren’t the trivial part of the International Criminal Law since they primarily developed the laws when they were in their nascent stage. We should acknowledge such smooth laws in the international arena due to the international customs there, and maintain the government’s efficiency, maintain the government’s efficiency, maintain the government’s efficiency by revealing the latent importance of the customs. Their use would also be there in times ahead with the establishment of new practices and for flexibility of the justice system worldwide.