Humanitarian Law of Armed Conflict: Problems of Applicability
| Published date | 01 September 1987 |
| Date | 01 September 1987 |
| DOI | 10.1177/002234338702400306 |
| Author | Olivier Dürr |
| Subject Matter | Articles |
Humanitarian
Law
of
Armed
Conflict:
Problems
of
Applicability*
OLIVIER
DÜRR
Legal
Division,
International
Committee
of
the
Red
Cross,
Geneva
The
Four
Geneva
Conventions
of
12
August
1949
and
their
two
additional
Protocols
of
1977
are
treaties
aiming
to
protect
victims
in
time
of
armed
conflict.
To
ensure
they
should
benefit
these
victims,
the
drafters
defined
simple
conditions
of
application
resting
on
facts,
and
they
provided
for
an
automatic
application
of
these
treaties
rather
than
letting
their
application
depend
on
the
free
interpretation
of
the
parties
to
an
armed
conflict.
The
level
of
protection
provided
depends
on
whether
it
is
a
conflict
of
an
internal,
high-intensity
internal
or
international
nature
A
certain
margin
of
interpretation
will
subsist
for
the
determination
of
an
internal
conflict
because
of
the
difficulties
of
fixing
exact
criteria.
As
the
outbreak
of
a
conflict
normally
takes
place
in
a
very
sensitive
political
context,
States
may
be
inclined
to
deny
the
existence
of
situations
leading
to
the
applicability
of
these
treaties
and
as
a
consequence
not
apply
them
as
such.
Although
States
may
pragmatically
respect
and
apply
the
content
of
these
treaties
in
part
or
in
whole,
the
origin
of
many
of
these
violations
can
be
found
in
this
denial
of
applicability.
As
there
is
no
supranational
jurisdiction,
respect
for
these
fundamental
rules
protecting
the
human
being
must
be
implemented
through
a
stronger
sense
of
responsibility
on
the
part
of
the
international
community.
ISSN
0022-3433
Journal
of
Peace
Research,
vol.
24,
no.
3,
1987
1.
Introduction
International
humanitarian
law
(hereafter
’IHL’)
is
applicable
in
times
of
armed
conflict
and
is
intended
to
protect
the
victims.
The
extent
to
which
it
provides
that
protection
varies
according
to
whether
the
conflict
is
international
or
internal.
IHL
contains
clear
definitions
of
the
situations
which
it
covers.
States
at
war
with
each
other,
however,
will
often
have
differing
interpretations
of
the
facts.
What
one
describes
as
occupation,
the
other
will
regard
as
liberation.
Thus,
States
may
deny
the
applicability
of
IHL
or
restrict
its
application.
In
the
absence
of
compulsory
international
jurisdiction,
the
States
them-
selves
are
competent
to
interpret
the
law.
The
United
Nations
and
the
ICRC,
by
some
of
their
functions,
each
have
a
contribution
to
make
on
the
subject.
The
purpose
of
IHL
being
to
protect
the
victims,
it
is
necessary
to
go
beyond
the
political
obstacles
relating
to
its
applicability
and
concentrate
on
respect
in
practice
for
its
provisions.
Finally
even
if
human
rights
law
falls
out
of
the
scope
of
this
article,
it
should
nevertheless
be
kept
in
*
The
views
expressed
in
this
article
are
personal
and
do
not
necessarily
reflect
the
views
of the
International
Committee
of
the
Red
Cross.
mind
that
at
least
its
fundamental
provisions
are
applicable
and
are
to
be
respected
con-
currently
with
humanitarian
law
in
time
of
armed
conflict.
2.
Applicability
2.1
The
Concept
of
Applicability
A
legal
rule
contains
a
series
of
conditions
defining
the
specific
situations
for
which
the
rule
has
been
created.
When
all
of
the
required,
stated
conditions
are
present,
only
then
does
the
rule
apply.
As
soon
as
a
person
gets
behind
the
steering
wheel
of
a
car,
he
is
subject
to
the
rules
of
the
road.
The
same
is
true
of
a
pedestrian
who
wants
to
cross
a
street.
For
the
rules
of
the
road,
the
general
conditions
for
application
are
simple
and
objective
-
the
fact
that
the
person
intends
to
join
the
traffic
in
the
streets
is
what
makes
that
body
of
law
applicable.
There
are
rules
within
it
whose
application
depends
on
more
complex
factors
involving
conditions
or
cri-
teria
which
may
be
medical
(e.g.
intoxi-
cation),
psychological
(e.g.
self-control)
or
subjective
(e.g.
error).
One
begins
to
see
the
difficulties
sometimes
involved
in
deter-
mining
whether
certain
of
the
required
con-
ditions
are
present.
Following
an
accident,
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