The Frontiers of International Humanitarian Law
| Author | Allan Rosas,Pär Stenbäck |
| Date | 01 September 1987 |
| DOI | 10.1177/002234338702400303 |
| Published date | 01 September 1987 |
| Subject Matter | Articles |
The
Frontiers
of
International
Humanitarian
Law
ALLAN
ROSAS
with
the
collaboration
of
PÄR
STENBÄCK
Åbo
Academy,
Finland;
Finnish
Red
Cross
Since
ancient
times,
war
has
been
regulated
by
certain
rules
and
rituals.
Modern
restraints
date
back
to
the
emergence
of
centralized
states
with
standing
armies.
In
the
international
legal
order
which
has
developed
since
then,
the
law
of
war
(the
ius in
bello)
has
occupied
a
prominent
place.
This
traditional
law
of
war,
and
international
law
in
general,
was
certainly
inspired
by
humanitarian
considerations
(e.g.,
the
protection
of
prisoners
of
war
and
of
aliens).
But
such
considerations
found
expression
only
through
a
predominant
filter:
the
state
interest.
In
the
present
century,
international
law
to
a
large
extent
has
become
treaty-based,
and
directed
towards
regulating
peacetime
conditions.
The
very
right
of
states
to
resort
to
war
has
been
severely
restrained,
and
especially
during
the
last
25
years
limitations
have
also
been
placed
on
their
peacetime
armaments.
Moreover,
a
number
of
rules
have
been
devised
for
the
protection
of the
individual,
not
only
in
his
capacity
as
a
representative
of
a
foreign
state,
but
also
as
a
human
being
as
such.
With
these
developments,
the
law
of
war
finds
itself
in
a
markedly
new
setting.
The
fairly
recent
term
’international
humanitarian
law
applicable
in
armed
conflicts’,
which
today
covers
a
considerable
part
of the
law
of
war,
is
an
indication
of
this.
The
present
article
analyses
the
relationship
between
the
concept
of international
humanitarian
law
applicable
in
armed
conflicts
and
certain
related
fields
of
international
law
and
puts
forward
some
thoughts
on
the
implications
of
recent
trends
for
the
future
development
of
international
humanitarian
law
and
for
the
activities
of
the
International
Red
Cross
and
Red
Crescent
Movement.
ISSN
0022-3433
Journal
of
Peace
Research,
vol.
24,
no.
3,
1987
1.
A
General
Framework
The
laws
of
war
have
never
been
an
isolated
phenomenon.
They
have
been
shaped
by
societal
factors,
such
as
economic,
political
and
military
developments.
They
have
also
evolved
in
a
broader
international
legal
framework,
including
the
basic
principles
relating
to
the
state
as
a
subject
of
inter-
national
law.
Yet,
one
cannot
avoid
the
impression
that
the
setting
of
the
law
of
war
(the
ius in
bello)
today
is
wider
than
ever.
In
this
expanding
setting,
the
status
of
the
traditional
law
of
war
(nowadays
sometimes
referred
to
as
the
law
of
armed
conflict)
has
become
somewhat
moot.
The
more
recent
concept
of
international
humanitarian
law
applicable
in
armed
conflicts
-
endorsed
by
the
Geneva
Diplomatic
Conference
on
Humanitarian
Law
of
1974-1977
-
is
an
indication
of
this.
This
concept
covers
a
con-
siderable
part
of
the
more
traditional
law
of
war
but
has
been
introduced
in
order
to
put
the
focus
on
the
protection
of
the
human
being.
It
is
thus
reminiscent
of
the
inter-
relation
which
exists
between
the
law
of
war
and
human
rights.
This
focus
on
the
individual
and
the
link
to
the
concept
of
human
rights
serves
an
additional
purpose:
Aggressive
war
has
been
outlawed
by
the
Kellogg-Briand
Pact
of
1928
and
the
UN
Charter
of
1945
and
the
former
ius
ad
bellum
has
become
a
ius
contra
bellum.
In
this
environment,
the
mere
regulation
of
warfare
has
acquired
dubious
overtones.
The
concept
of
humanitarian law
carries
the
message
that
the
main
idea
is
to
protect
human
beings
rather
than
to
regulate
warfare
as
such.
The
contemporary
law
of
war
has
developed
side
by
side
with
efforts
at
strengthening
peace
and
the
prohibition
on
the
use
of
force
(the
ius
contra
bellum).
The
law
of
war
has
always
contained
pro-
hibitions
and
restrictions
on
methods
and
means
of
combat,
including
the
use
of
specific
weapons
(e.g.,
poison,
the
dum-dum
bullet).
Later
on,
states
have
accepted
limi-
tations
on
their
peacetime
armaments
as
well.
The
recent
law
of
arms
control
and
disarmament
has
provided
a
new
perspective
for
that
part
of
the
law
of
war
which
deals
with
methods
and
means
of
combat
and
the
use
of
weapons
in
war.
The
starting
point
for
our
analysis
is
the
law
of
war
and
especially
that
part
of
it
termed
international
humanitarian
law
appli-
cable
in
armed
conflicts.
We
are
thus
con-
220
cerned
with
restraints
on
collective
violence.
From
this
perspective,
the
three
concepts
introduced
above,
that
is,
human
rights,
peace
(i.e.,
negative
peace = ius
contra
bellum)
and
disarmament,
seem
to
offer
the
most
relevant
setting.
There
are,
of
course,
other
fields
of
the
international
legal
order
which
could
be
con-
sidered
in
this
context,
such
as
the
law
relat-
ing
to
the
peaceful
settlement
of
disputes.
However,
we
shall
in
the
following
discus-
sion
limit
ourselves
to
an
analysis
of
the
relationships
between
the
concepts
of
humanitarian
law
on
the
one
hand
and
those
of
human
rights,
peace
and
disarmament
on
the
other.
For
instance,
the
law
on
the
peaceful
settlement
of
disputes
is
a
corollary
to
the
prohibition
on
the
use
of
force;
its
links
to
humanitarian
law
and
the
law
of
war
are
more
indirect.
As
was
noted
above,
the
concept
of
inter-
national
humanitarian
law
applicable
in
armed
conflicts
is
related
to
the
protection
of
the
human
being
against
the
calamities
of
war.
The
historical
roots
of
the
concept
lie
in
the
protection
of
the
’victims
of
war’,
that
is,
persons
who
do
not
take
an
active
part
in
hostilities.
The
famous
Geneva
Conventions
introduced
rules
on
the
protection
of
wounded
and
sick
soldiers
(1864),
prisoners
of
war
(1929)
and
civilian
persons
(1949).
These
three
categories
are
covered
by
the
four
Geneva
Conventions
of
1949,
which
form
the
bulk
of
international
humanitarian
law
applicable
in
armed
conflicts.
This
legal
tradition
has
often
been
called
the
Law
of
Geneva.
It
is
interesting
to
note,
however,
that
the
very
concept
of
humanitarian
law
does
not
yet
appear
in
the
title
of
the
1949
Geneva
Diplomatic
Conference
or
the
four
con-
ventions
adopted
by
the
Conference.
But
the
Conventions
refer
to
’humanitarian
activi-
ties’
carried
out
by
the
Red
Cross
and
other
’humanitarian
organizations’,
and
a
reso-
lution
adopted
by
the
Diplomatic
Con-
ference
states
that
its
work
was
inspired
’solely
by
humanitarian
aims’
(see
below).
Nor
is
the
very
term
humanitarian
law
to
be
found,
for
instance,
in
Erik
Castr6n’s
monu-
mental
treatise
The
Present
Law
of
War
and
Neutrality
(Castr6n
1954),
or
in
the
Draft
Rules
for
the
Limitation
of
the
Dangers
Incurred
by
the
Civilian
Population
in
Time
of
War,
drawn
up
by
the
International
Com-
mittee
of
the
Red
Cross
(ICRC)
in
1956
(Schindler
&
Toman
1981,
p.
187).
The
most
ardent
spokesman
of
the
concept
of
humanitarian
law
has
been
Jean
Pictet,
former
Vice-President
of
the
International
Committee
of
the
Red
Cross
(ICRC).
He
has
characterized
humanitarian
law
as
’that
considerable
portion
of
international
law
which
is
inspired
by
a
feeling
for
humanity
and
is
centred
on
the
protection
of
the
indi-
vidual
in
time
of war’
(Pictet
1985,
p.
1).
Pictet
has
distinguished
between
’humani-
tarian
law
properly
so-called’,
which
encom-
passes
the
Law
of
Geneva
referred
to
above,
and
humanitarian
law
in
a
wider
sense,
encompassing
also
the
so-called
Law
of
the
Hague
(Pictet
1966).
The
Law
of
the
Hague
is
more
concerned
with
the
actual
regulation
of
warfare.
Its
historical
bulk
are
the
Hague
Conventions
of
1907.
When
discussions
started
in
the
mid-1960s
on
the
need
to
update
the
law
of
war,
the
term ’humanitarian
law’ soon
gained
ground.
For
instance,
resolution
No.
XXVIII
adopted
by
the
XXth
International
Red
Cross
Conference
(Vienna
1965),
urged
the
ICRC
’to
pursue
the
development
of
International
Humanitarian
Law’
(Interna-
tional
Red
Cross
Handbook
1971,
p.
448,
see
also
a
resolution
adopted
already
in
1961
by
the
Council
of
Delegates,
ibid.,
p.
452).
At
the
same
time,
there
was
general
sup-
port
for
the
need
to
include
elements
of
the
Law
of
the
Hague
in
the
process.
It
was
felt
that
modern
methods
and
means
of
warfare
raised
such
humanitarian
concerns
(the
increasing
proportion
of
civilian
casualities,
etc.)
that
they
could
not
be
ignored
in
an
intergovernmental
effort
to
update
the
law.
To
underscore
this
widening
of
the
subjects
dealt
with
in
the
1949
Geneva
Conventions,
the
ICRC
gave
a
report
submitted
in
1969
the
title
’Reaffirmation
and
Development
of
the
Laws
and
Customs
Applicable
in
Armed
Conflicts’
(ICRC
1969).
The
concept
of
humanitarian
law
was
not
lost,
however;
it
appears,
e.g.
in
the
title
of
the
1974-1977
Geneva
Diplomatic
Con-
ference,
which
adopted
the
two
Protocols
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