Inter Arma Caritas: Evolution and Nature of International Humanitarian Law
| Date | 01 September 1987 |
| Published date | 01 September 1987 |
| DOI | 10.1177/002234338702400304 |
| Author | Jacques Meurant |
| Subject Matter | Articles |
Inter
Arma
Caritas:
Evolution
and
Nature
of
International
Humanitarian
Law
JACQUES
MEURANT
Editor-in-Chief,
International
Review
of
the
Red
Cross
International
humanitarian
law
can
be
defined
as
the
principles
and
rules
which
regulate
hostilities
in
order
to
attenuate
their
hardships:
they
aim
at
safeguarding
military
personnel
placed
’hors
de
combat’
and
persons
not
taking
part
in
hostilities;
they
also
determine
the
rights
and
duties
of
belligerents
in
the
conduct
of
operations
and
limit
the
choice
of
means
of
doing
harm.
This
law
combines
two
ideas
of
a
different
nature,
one
legal
and
the
other
moral,
which
may
explain
the
apparent
paradoxes
it
raises
(Part
1).
The
evolution
of
humanitarian
thought
through
the
ages
(Part
2)
—
as
well
as
the
attitude
of
States,
the
weight
of
history
and
politics
—
have
determined
the
uneasy
but
progressive
codification
of
humanitarian
norms
(Part
3).
To
understand
the
very
nature
of
humanitarian
law,
we
have
to
take
into
account
the
so-called
’military
necessity’
which
may
be
at
the
origin
of
limitations,
if
not
gaps,
in
the
development
and
the
implementation
of
humanitarian
law.
However,
because
it
is
also
indebted
to
superior
principles
derived
from
established
custom,
principles
of
humanity
and
the
dictates
of
public
conscience,
humanitarian law
has
acquired
specificities
which
make
it
universal
and
obligatory.
If
humanitarian
law
is
a
law
concluded
by
States,
its
real
aim
is
the
protection
of
the
human
person
(Part
4).
ISSN
0022-3433
Journal
of
Peace
Research,
vol.
24,
no.
3,
1987
1.
International
Humanitarian
Law:
Para-
doxes
and
Contradictions?
International
Humanitarian
Law
is
a
part
of
Public
International
Law
composed
of
’international
legal
rules,
established
by
treaties
or
customs
which
are
specifically
intended
to
solve
humanitarian
problems,
directly
arising
from
international
or
non-
international
armed
conflicts
and
which,
for
humanitarian
reasons,
limit
the
right
of
Par-
ties
to
a
conflict
to
use
the
methods
and
means
of
their
choice
or
protect
persons
and
property
that
are,
or
may
be,
affected
by
conflicts’.
1
But
is
it
not
paradoxical
to
speak
of
the
law
of
armed
conflict,
i.e.
of
a
legal
system
aiming
to
regulate
acts
which
are
fun-
damentally
opposed
to
law?
How
is
it
possible
that,
in
the
case
of
armed
conflict
consisting
in
settling
a
dispute
through
force
and
violence
and
not
according
to
legal
rules,
the
use
of
violence
can
be
restricted
by
legal
rules?
The
philosopher
Immanuel
Kant
already
emphasized
this
paradox
when
he
said:
’How
is
it
possible
to
lay
down
laws
to
govern
a
situation
which
is
inherently
independent
of
all
laws?’
(Quoted
by
Pictet
1985,
p.
80).
For
many
writers,
as
war
simply
replaces
law
by
force,
it
is
easy
to
understand
the
reasoning
of
Sir
John
Fisher,
First
Lord
of
the
British
Admiralty,
when
he
made
the
following
comment
in
1907
on
the
occasion
of
the
recently
convoked
Hague
Conference:
’To
humanize
war
is
like
trying
to
humanize
hell’
(ibid.).
A
good
many
theorists,
military
thinkers
and
leaders
have
supported
this
all-or-noth-
ing
theory.
Clausewitz
used
to
say
that
war
is
a
violent
act
in
which
the
use
of
force
is
unlimited.
At
the
Nuremberg
trial,
Goering
proclaimed
that
in
a
total
war
the
tenets
of
International
Law
are
broken
down.
Such
an
all-or-nothing
theory
defended
by
authors
pretending
that
the
most
brutal
wars
are
the
most
humane
because
they
are
fin-
ished
most
quickly
has
proved
to
be
mere
sophism.
Firstly,
history
has
shown
us
that
the
most
destructive
methods
do
not
put
an
end
to
wars.
Secondly,
if
a
belligerent
can
reduce
its
adversary
to
its
mercy
by
the
appli-
cation
of
a
certain
degree
of
violence,
there
is
no
reason
to
go
beyond
such
violence
when
the
objective
has
been
achieved.
War
is
a
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