The present working paper is in two parts. Part I, by Mr. Salama, addresses generally the issue of the relationship between human rights law and international humanitarian law, identifying areas of possible further study, particularly with regard to prevention and to the institutional response to violations in situations of conflict. Part II, by Ms.
Hampson, examines whether the two legal regimes can be simultaneously applicable, in the light of the jurisprudence of human rights treaty bodies and special procedures. It suggests that, where international humanitarian law is applicable, it should be taken into account by human rights bodies. Part II then considers the extent to which human rights law is applicable extraterritorially, again in the light of the practice of human rights bodies.
The paper concludes by identifying areas which could be the subject of further study. The authors consider that it would be highly desirable to create a working group of the Sub-Commission to consider these issues. The present document is submitted in accordance with that request. We are blessed with what amounts to an international bill of human rights, among which are impressive norms to protect the weakest among us, including victims of conflict and persecution ….
But without implementation, our declarations ring hollow. Without action, our promises are meaningless. Armed conflict by definition defies the basic idea of modern law. Ensuring minimal respect for human rights and dignity during armed conflicts continues to challenge the international community.
The difficulties of reconciling the contradictory notions of order and disorder, law and force, human dignity and war could only be aggravated by scientific development, weapons of mass destruction, terrorism and many other modern transnational phenomena. The worst of all these phenomena undoubtedly remains the widening gap between moral progress and technological advances. This turns in large part on the requirement that attackers must distinguish between civilians and combatants and between military objectives and civilian objects.
They must take all feasible precautions to avoid or minimize harm to civilians, and to this end may not attack civilians exclusively, or combatants and civilians indiscriminately. The fullest statement of the rules governing the conduct of hostilities in international armed conflict is in Protocol I Additional to the Geneva Conventions of , relating to the Protection of Victims of International Armed Conflicts Protocol I. This Protocol, which was adopted in , has been ratified by over states.
The fundamental provisions of this Protocol, including all the rules on the conduct of hostilities cited in this report, are considered part of customary international law and are therefore binding on all states. Amnesty International and HRW did not, in their reports, put in any reference or source for their claims.
Nevertheless, their bland statements became the authority for confirming the status of Additional Protocol I and ushering in a new, stricter regime of international humanitarian law. The acceptance of Additional Protocol I as the applicable law, and the willingness to follow where Amnesty International and HRW led, meant that international lawyers writing about Kosovo demonstrated a starkly different understanding of the ius in bello than those writing about the First Gulf War.
Lawyers interpreted the principle of discrimination much more strictly; they narrowed the class of acceptable targets and permissible weaponry. The NGO reports interpreted it strictly — more strictly even than the vague, pragmatic words of Article 51 would necessarily require.
They stated that the principle of proportionality placed a duty on combatants to choose a means of attack that avoided or minimized damage to civilians.
Aerial bombardment was disproportionate, any weaponry besides precision-guided munitions was disproportionate and the destruction of bridges or other infrastructure used by civilians was disproportionate. Once again, one institution disagreed with the widespread interpretation of international humanitarian law. Legal commentators generally attacked this conclusion and the reasoning that had led the OTP to it.
The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects. For example, bombing a refugee camp is obviously prohibited if its only military significance is that people in the camp are knitting socks for soldiers.
Conversely, an air strike on an ammunition dump should not be prohibited merely because a farmer is plowing a field in the area. Unfortunately, most applications of the principle of proportionality are not quite so clear cut. It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values.
One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective. Lawyers argued that the OTP, in taking this approach, had given too little emphasis to civilian losses and excused too many military actions. The correct approach, the correct understanding of the ius in bello by the end of the 20th century was that it was a truly international humanitarian law, a law in which considerations of humanity trumped military necessity.
Indeed, military necessity was barely mentioned in the commentary on Kosovo. Unlike the commentators on the Gulf War, these lawyers displayed respect and optimism towards international humanitarian law. When civilians were killed, their deaths were not blamed on the inadequacy of the law but, rather, on the failure of NATO to apply the law properly. When lawyers sought better protection for civilians, they called for better adherence to the law — they did not suggest that better laws were required.
In this way, international humanitarian law was cemented not only as the governing regime of ius in bello but also as a respected and prestigious regime. I have concluded this short history of international humanitarian law at the end of the 20th century. I am aware that this is not the end of the story of international humanitarian law. International humanitarian law, in the 21st century, went on to develop new aspects, in particular, a more clearly enunciated association with human rights law.
It is the construction of this field of law that I have attempted to outline in this history, and I have therefore finished my account at the point where international humanitarian law won general acceptance. As this short history of international humanitarian law demonstrates, international humanitarian law did not begin in the mists of time. Rather, the history of international humanitarian law was forged in two rapid periods of change. It began in the s when it was suddenly posited as a field of law whose precepts were outlined in somewhat ambiguous terms in the Additional Protocols to the Geneva Conventions.
The idea of an international humanitarian law, together with the acceptance of the Additional Protocols, then faltered for almost two decades. It was only at the end of the s that, suddenly and without any formal mechanisms, Additional Protocol I became accepted as the basis for a uniquely strict understanding of international humanitarian law as the ius in bello. These moments of rapid change were not achieved by a straightforward process of codification. Nor were they the achievements of states alone.
Rather, international humanitarian law was formed through the intersection of the work of a diverse group of actors, each focused on their own particular aims, strategies or tasks.
Some of these actors were acknowledged participants in international law, such as the states involved in the Diplomatic Conference or the ICRC — but they played out their roles in a somewhat different manner to that which is usually envisaged.
It has long been noted that academics have an unusually important role in the determination of international law; Oppenheim made the point at the beginning of the last century and Ian Brownlie at the end. The varied cast of actors who have played a role in this history of international humanitarian law shows that international humanitarian law is not a code managed and shaped by states alone.
It shows that it is a broader practice, which can comprehend contributions by conventional and unconventional participants. These participants do not even need to come from a traditional site of influence or power.
The OTP could not garner support for its interpretation of the law. Yet, human rights organizations could inform the understanding of the law and academics could consolidate it.
Harold Koh suggests that this kind of norm creation, which introduces the possibility of criticism of non-conformist states, has the potential to constrain state action as much as the rules that states have consciously chosen to accept. It seems, therefore, that authority, the ability to discuss international humanitarian law and to be heard, can depend less on who speaks than on how they speak about the law.
A sufficient grasp of legal language and conventions can allow a practitioner of international humanitarian law to intimate expertise and speak authoritatively about the field.
Moreover, a proper grasp of these conventions can, as this history shows, include effective and acceptable methods for interpreting the law creatively and introducing change.
These strategies include a restatement of the law, a reinterpretation of laws, a reference to custom and the construction of new histories. We have seen these strategies used when the law of armed conflict was suddenly relabelled international humanitarian law, when the principle of proportionality was reinterpreted and when Additional Protocol I was claimed to be binding as customary law.
By deploying these strategies, practitioners are able to not only change the law but also to erase its former incarnations and the moment of change itself.
Yet, as this history has shown, not every statement about the law, however properly expressed, will be authoritative. At times, such as when the Additional Protocols were drafted, there is no, or little, consensus about the law, and many statements are provisional. At other times, however, the practitioners of international law form a disciplinary consensus that is strong enough to reject alternative arguments, such as those made by the OTP or MEW in the early s.
The problem with the OTP and MEW was not a failure to adhere to legal convention but, rather, their failure to display the dominant disciplinary sensibility, to work within the accepted paradigm and to reach an accepted position.
Their conclusions, consequently, were wrong. By the end of the decade, the paradigm shift that was taking place in the international sphere towards humanitarianism made this sensibility more acceptable to international lawyers, and they were prepared to accept the statements made by the human rights reports as authoritative and obvious. They were willing to reinterpret the legacy of the Protocols, to forget the intervening years of doubt and to reshape the ius in bello as part of the humanitarian project.
A scientist, Thomas Kuhn wrote, could not work outside a paradigm and do science. As such, this history not only questions the orthodox account of the history of international humanitarian law but also the common understanding of the field itself.
The history of international humanitarian law, both its actual development and the symbiotic narratives about its development, was shaped by a range of actors. Some of these actors were conventional practitioners of international law, others less so. Some were particularly interested in the development of the law, others had more complex goals. Their propositions about international humanitarian law were accepted or dismissed for a range of reasons, including both their compliance with clear legal forms and more nebulous disciplinary commitments.
Through their work, they were able to introduce, define, change and confirm international humanitarian law. See R. See, e. Fleck and M. Bassiouni divides these sectors differently, as conventional law Geneva and customary law Hague. Bassiouni, supra note 7, at Henckaerts and L. Lieber Code, General Order no. Meyer and H. D Draper , at The Hague Conventions are not technically part of this tradition, but as the Hague and Geneva Conventions are now merged, they tend to be listed as part of this history.
Gardam and M. Petersburg , 1 AJIL Roxburgh 3rd edn, , at Ibid , at 85; L. Lauterpacht 7th edn, , at Oppenheim, supra note 32, at 85—86; Oppenheim , supra note 33, at Spaight, War Rights on Land , at See also A. Higgins, War and the Private Citizen , at Schwarzenberger, International Law and Order , at Spaight, supra note 35, at 8—10; Oppenheim , supra note 33, at —; Higgins, supra note 35, at 15—17; J.
Westlake, International Law 2nd edn, , at 59— Scott, The Hague Peace Conferences of and , at 37— See also O.
Nippold, The Development of International Law after the World War , at about the limits of humanitarianism in the Convention; the respect paid to military exigency. The restriction of combatants to an official, standing, army was considered a humanitarian development — see Oppenheim , supra note 33, at Spaight held this view. See Spaight, supra note 35, at 6—7. It was, however, a debatable question. See also J. Oppenheim , supra note 33, at ; Schwarzenberger, supra note 38, at Schindler states that the ICRC first started making this distinction in the s before the Geneva Conventions were simply considered part of the law of war.
Jenks et al. Suter, supra note 61, at Suter, supra note 61, at , also makes this point. See Mr. Boudjakdji Algeria at 17, Mr. Zafera Madagascar at 58, Mr.
Dorochevitch Byelorussian Soviet Socialist Republic at Bothe, K. Partsch and W. Pilloud et al. See Pilloud et al. Official Records of the Diplomatic Conference, vol. McCormack and H. Cassese ed. Aldrich, supra note , at International humanitarian law is part of international law, which is the body of rules governing relations between States. International humanitarian law does not regulate whether a State may actually use force; this is governed by a distinct part of international law set out in the United Nations Charter.
Source: What is International Humanitarian Law? The United Nations Security Council. The Security Council has primary responsibility for maintaining international peace and security. It may meet whenever peace is threatened. The Geneva Conventions and their Additional Protocols prohibit all attacks on civilians and others not taking part in combat, and require that they be protected. The ICRC Geneva Conventions website contains the text of and commentaries on the four Geneva conventions on international humanitarian law and their two additional protocols.
The international humanitarian law Treaty database , compiled by the ICRC, includes treaties and other texts which include law protecting the victims of war and law governing the conduct of hostilities, from to the present. The full text of the treaties can be downloaded or individual articles viewed. The treaties are browsable by subject and date. A system of international jurisdictions tries individuals accused of genocide, war crimes and crimes against humanity. The system consists of the International Criminal Court, plus ad hoc tribunals set up after specific conflicts.
Current Conflicts. The following free 'debate maps' are provided by Oxford University Press. Israel-Gaza Wars - this resource maps scholarly commentary on the international law aspects of the armed conflict s between Israel and Gaza since Israel withdrew from the territory. Sources in the map include commentary published in English language law blogs and newspapers and free content from OUP's online services other free repositories.
A later update of this map will include consideration of a referral of the situation to the International Criminal Court. Ukraine Use of Force - this resource maps scholarly commentary on the legal arguments regarding the public international law and some domestic constitutional law aspects of the use of force in Ukraine, published in legal blogs and newspapers, and free content from OUP's online services.
Use of Force against Syria - this resource maps scholarly commentary on the legal arguments regarding the public international law aspects of the use of force against Syria published in English language legal blogs and newspapers and some very recent journal articles. It brings together primary documents with discussions in English-language legal blogs and a selection of journal articles. Each agreement is categorised according to the issues it addresses, including negotiation agendas, ceasefire monitoring, power-sharing, human rights and guarantee mechanisms.
Researchers can locate relevant provisions based on, for example, the 29 thematic issues, conflict type, region, country and keyword. More about the database. Language of Peace complements and builds on the UN Peace Agreements database , which contains the full-text agreements. The old RULAC website , which will remain available, contains a Global Database which aims to report on every concerned State and disputed territory in the world, considering both the legal norms that apply as well as the extent to which they are respected by the relevant actors.
You can access the database by individual state or territory. Each state or territory listing provides the following information:. The new RULAC website is an online portal that systematically qualifies situations of armed violence using the definition of armed conflict under international humanitarian law.
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