2 Historical Development and Legal Basis

This chapter discusses the historical evolution and the existing legal foundations of international humanitarian law in the light of current practice. In this context, the ethical and political prerequisites for legal development are discussed in their global relevance, as the origins of the fundamental principles of humanitarian law are not exclusively based on a single region, culture, or religion. At a time which is characterized by rapid societal changes and diminishing distances, a good understanding of the multicultural basis for humanitarian rules is of the utmost importance. Although the subject of this handbook is the law applicable to the conduct of hostilities that applies once a party has entered into armed conflict (the jus in bello), that law cannot be properly understood without some examination of the separate body of rules which determines when resort to armed force is permissible (the jus ad bellum). The jus ad bellum has ancient origins but current law is founded on Article 2(4) and Chapter VII of the UN Charter. The chapter then considers the Geneva Conventions of 1949, as well as the Hague Conventions.

The Humanization of Humanitarian Law

The American Journal of International Law ◽

10.2307/2555292 ◽

2000 ◽

Vol 94 (2) ◽

pp. 239-278 ◽

Cited By ~ 129

Author(s):

Theodor Meron

Keyword(s):

Human Rights ◽

Hague Convention ◽

Land Mines ◽

Humanitarian Law ◽

Geneva Conventions ◽

The Subject ◽

The Hague ◽

The Hague Convention ◽

The Impact

The centennial of the Hague Convention (No. II; No. IV in the 1907 version) on the Laws and Customs of War on Land and the fiftieth anniversary of the four Geneva Conventions for the Protection of Victims of War of August 12, 1949, present an opportunity to reflect on the direction in which the law of war, or international humanitarian law, has been evolving. This essay focuses on the humanization of that law, a process driven to a large extent by human rights and the principles of humanity. As the subject is vast, major issues must inevitably be left out of my discussion, including the impact of the prohibitions on unnecessary suffering and indiscriminate warfare on the regulation of weapons, the proscription of antipersonnel land mines and blinding laser weapons, and the progression of international humanitarian law from largely protecting noncombatants to protecting combatants as well.

17. Legal Restraints on Violence in Armed Conflict

Cassese's International Law ◽

10.1093/he/9780199231287.003.0017 ◽

2020 ◽

pp. 366-403

Author(s):

Paola Gaeta ◽

Jorge E. Viñuales ◽

Salvatore Zappalà

Keyword(s):

Armed Conflict ◽

Historical Development ◽

Armed Conflicts ◽

Humanitarian Law ◽

Human Rights Law ◽

Geneva Conventions ◽

Law Of Armed Conflict ◽

The Status ◽

The Hague ◽

War Victims

This chapter examines the historical development and contemporary operation of the international law of armed conflict. It begins with a discussion of the historical development of this body of law, from the Hague Conventions to the Geneva Conventions and the two 1977 Additional Protocols, to the contemporary relation between international humanitarian law and human rights law, particularly in the field of targeting and detention of members in non-international armed conflicts. It then analyses the status of lawful combatants in international armed conflicts and the question of membership of non-State armed groups, as well as the notion of direct participation in hostilities and ‘unlawful combatants’. It then turns to the restrictions on the use of force based on the principles of distinction and proportionality, the choice of weapons, the protection of war victims, and some compliance mechanisms.

Training Courses for Delegates

10.1017/s0020860400064585 ◽

1970 ◽

Vol 10 (111) ◽

pp. 327-327

Keyword(s):

Red Cross ◽

Humanitarian Law ◽

Close Collaboration ◽

Training Course ◽

Geneva Conventions ◽

Training Courses ◽

The Subject

The ICRC organized its first “ training course for delegates ” in Geneva from 11 to 14 May.The theory lessons (humanitarian law, Geneva Conventions) and practical lessons (delegates' activities on mission), which were introduced by various ICRC collaborators, the Swiss Red Cross and medical experts, were prepared in close collaboration with the Henry Dunant Institute. During the seminar, Professor O. Reverdin gave a lecture on the subject “ Switzerland and the concept of neutrality ”.

Teaching of International Humanitarian Law

10.1017/s0020860400024049 ◽

1972 ◽

Vol 12 (131) ◽

pp. 96-103

Keyword(s):

Vice President ◽

Red Cross ◽

Humanitarian Law ◽

Geneva Conventions ◽

The Subject ◽

The University

The ICRC has on various occasions drawn the attention of National Red Cross Societies to the importance of an ever wider dissemination of the Geneva Conventions. In March 1971, it sent them a letter relating to the teaching of international humanitarian law in universities. Recently it reverted to the subject in a circular which we publish below, followed by the outline of a course on international humanitarian law which Mr. Jean Pictet, Vice-President of the ICRC, is giving at the University of Geneva, and which he has authorized us to reproduce.

The Martens Clause, Principles of Humanity, and Dictates of Public Conscience

The American Journal of International Law ◽

10.2307/2555232 ◽

2000 ◽

Vol 94 (1) ◽

pp. 78-89 ◽

Cited By ~ 40

Author(s):

Theodor Mero

Keyword(s):

Human Rights ◽

Nuclear Weapons ◽

The United States ◽

Humanitarian Law ◽

International Court Of Justice ◽

Geneva Conventions ◽

Court Of Justice ◽

International Court ◽

Conventional Weapons ◽

Together with the principle prohibiting weapons “of a nature to cause superfluous injury” or “calculated to cause unnecessary suffering,” the Martens clause, in the Preamble to the Hague Conventions on the Laws and Customs of War on Land, is an enduring legacy of those instruments. In the years since its formulation, the Martens clause has been relied upon in die Nurembergjurisprudence, addressed by the International Court of Justice and human rights bodies, and reiterated in many humanitarian law treaties that regulate the means and methods of warfare. It was restated in die 1949 Geneva Conventions for the Protection of Victims of War, the 1977 Additional Protocols to those Conventions, and the Preamble to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, albeit in slightly different versions. The Martens clause was paraphrased in Resolution XXIII of the Tehran Conference on Human Rights of 1968, and is cited or otherwise referred to in several national military manuals, including those of the United States, die United Kingdom, and Germany. Moreover, attempts have recently been made, including by parties before die International Court of Jusdce, to invoke the clause, in the absence of specific norms of customary and conventional law, to oudaw the use of nuclear weapons.

Bodies against War: Voluntary Human Shielding as a Practice of Resistance

AJIL Unbound ◽

10.1017/aju.2016.2 ◽

2016 ◽

Vol 110 ◽

pp. 299-304 ◽

Cited By ~ 1

Author(s):

Banu Bargu

Keyword(s):

Rome Statute ◽

Hague Convention ◽

Criminal Court ◽

The Other ◽

Humanitarian Law ◽

Asymmetric Conflict ◽

Geneva Conventions ◽

The Hague ◽

The Hague Convention

International humanitarian law strictly prohibits the use of human shields and, through a well-known genealogy of supranational efforts that passes through the Hague Convention IV (1907), the Geneva Conventions III and IV (1949), the Additional Protocol I (1977), and, more recently, the Rome Statute of the International Criminal Court (1998), has sought to prevent this practice. However, both states and nonstate belligerents have deployed human shields in order to gain military advantages—to ward off attacks by placing civilians close to military targets or hiding military targets within areas inhabited by civilians. This is especially the case in asymmetric conflict, where the weaker party can use human shields to protect fighters, weapons, strategic sites, and critical infrastructures, and to delay, deter, and even discourage attackers from direct engagement that might lead to a high number of civilian casualties. On the other hand, the attacking party can allege that the “other” party is using civilians as human shields. Even in the absence of actual evidence, such an allegation has come to constitute a convenient excuse for attackers to justify civilian casualties and to relegate the responsibility for their deaths to the party that endangered them in the first place. In asymmetric conflict, therefore, parties are incentivized to resort to a politics of human shielding.

Fighting by the rules: Instructing the armed forces in humanitarian law

10.1017/s0020860400072387 ◽

1989 ◽

Vol 29 (269) ◽

pp. 111-124 ◽

Cited By ~ 3

Author(s):

Françoise J. Hampson

Keyword(s):

Human Rights ◽

Armed Forces ◽

Hague Convention ◽

Prisoners Of War ◽

The Body ◽

Humanitarian Law ◽

Customary International Law ◽

Geneva Conventions ◽

Human Rights Treaties ◽

It is commonly accepted that education in human rights may be one of the most effective tools in promoting the observance of those rights. Those whose profession entails the exercise of power over others have an obvious need to know the limits of their power and members of the armed forces represent just such a group. Their acts engage the responsibility of their State under human rights treaties, wherever those acts are committed. Some instruction in human rights law, particularly non-derogable rights, is therefore necessary but the body of rules which imposes the greatest prohibitions and restraints on the conduct of armed forces is humanitarian law. That term is used here as including both “The Hague law”, which imposes limits on the means and methods of warfare, and “Geneva law”, which seeks to protect certain victims of the conflict, such as the wounded and sick in the field, the wounded, sick and shipwrecked at sea, prisoners of war and civilians living under belligerent occupation. The latter body of rules was updated in 1977 by the addition of two Protocols which extended the range of protection by incorporating elements of “The Hague law”. The 1949 Geneva Conventions have been ratified by 166 States and Hague Convention IV, with which we shall principally be dealing, was held by the Nuremberg Tribunal to represent customary international law. To all intents and purposes then, every State is bound by the two bodies of rules. In addition, the 1977 Protocols are binding on those States which have ratified them.

Conferences for the Development of Humanitarian Law — Main Subjects

10.1017/s0020860400073472 ◽

1971 ◽

Vol 11 (120) ◽

pp. 130-133

Author(s):

J. P.

Keyword(s):

Humanitarian Law ◽

Geneva Conventions ◽

Notwithstanding the volume reached by the Geneva Conventions in 1949, they do not cover the whole field of human misfortunes. It is now more than twenty years since they were drafted. Moreover, although Geneva Law was developed in detail in 1949, The Hague Law, on the contrary, which deals more with the regulation of hostilities and of the utilization of weapons, goes back to 1907, when bomber aircraft had not yet come into existence.

Commentary: The Yugoslavia Tribunal and the Common Core of Humanitarian Law Applicable to all Armed Conflicts

Leiden Journal of International Law ◽

10.1017/s0922156500000406 ◽

2000 ◽

Vol 13 (3) ◽

pp. 619-653 ◽

Cited By ~ 3

Author(s):

Sonja Boelaert-Suominen

Keyword(s):

Common Core ◽

Armed Conflict ◽

The Body ◽

Armed Conflicts ◽

Humanitarian Law ◽

Internal Armed Conflict ◽

Geneva Conventions ◽

The Common ◽

This article discusses the contribution made by the jurisprudence of the Yugoslavia Tribunal to the articulation of the body of international humanitarian law that applies to all armed conflicts, regardless of whether they are international or internal. The Tadić Jurisdiction Decision rendered by the Appeals Chamber in 1995 set the stage for a substantial “rapprochement” of the regulatory content of war crimes committed in international and internal armed conflict, using Common Article 3 of the Geneva Conventions as the main vehicle. The first judgements have contributed greatly to the expansion of the body of “Geneva law” applicable to all armed conflicts. More recently, the Tribunal has started to examine cases of armed conflicts per se, in which perpetrators have been charged with violation of the “Hague law”, i.e., the law relating to the conduct of hostilities. The end result of this development will be elaboration of a common core of Geneva law and Hague law applicable to all armed conflicts that have reached the threshold of Common Article 3 of the Geneva Conventions.

Prawo okupacji a międzynarodowe budowanie państwa: mój przyjaciel wróg

Studia Prawnicze / The Legal Studies ◽

10.37232/sp.2016.4.1 ◽

2016 ◽

pp. 7-38

Author(s):

Grzegorz Gil

Keyword(s):

Cold War ◽

State Building ◽

Status Quo ◽

Double Standards ◽

Jus Post Bellum ◽

Geneva Conventions ◽

Local Stakeholders ◽

Imperial Politics ◽

The Hague ◽

The Cold War

Following the end of the cold war, the incidence of statebuilding interventions has visibly increased in the case of dysfunctional (failed) states. Today, such interventionism in a good faith promotes liberal values and is believed to be in line with international legal regimes that makes it distinctive from neo-imperial politics. Even if state-building does not generally refer to regular warfare, it often takes analogous forms to occupation, which was codified in jus in bello at the beginning of the XXth century. While the occupation law requires occupants to maintain status quo on the occupying territory (article 43 of Hague Regulations), armed state-building is transformative by definition that seems to undermine conservative provisions of the former. The article presents traditional criteria for occupation in the Hague and Geneva conventions as well as prospects and limitations of its refinement (jus post bellum). In theory, such a redefinition could launch the formulation of the statebuilding regime, which aims to reduce deficits or double-standards in international state-building by focusing on the interests of local stakeholders of transformative projects. Hence, the Author addresses three interlocking issues: occupation within state-building, the occupation law and state-building, and transformative occupation as state-building.