Paper in International Humanitarian Law

Oxford University Press 2015

6 Amanda Alexander, A Short History of International Humanitarian Law. The European Journal of International Law Vol. 26 no. 1. Published by

Oxford University Press 2015

7 L. Oppenheim, International Law: A Treatise, edited by R.F. Roxburgh (3rd edn, 1921), at 84.

8 J.M. Spaight, War Rights on Land (1911)

9 Giuseppe Di Gennaro, “I diritti umani ieri e oggi.” (2007). 3

In addition, the 1929 and 1949 Geneva conventions endorsed some of the humanitarian subjects of

the Hague convention such as the “protection of prisoners of war and the management of occupied

territories”. These developments led to a clear-cut distinction of the two ruling branches in

customary Hague law and conventional Geneva law. The former focused on the actual conduct of

war while the latter was concerned in the humanitarian aspects of law. The consequence of this

evolution is that the Geneva conventions will directly form part of the humanitarian law while the

customary Hague law will only be considered to rule out the conduct of military practices.

Furthermore, the ICRC decided in 1950 to draft a new code for the protection of the civilian

population. This code was emblematic and useful as it challenged the new division between the

customary Hague law and the conventional Geneva law. The draft of 1955 created instead some

controversies between the national Red Cross societies and private experts who “feared that this

new set of rules interfered in government prerogatives”

10 . As a response to these disputes, the ICRC

developed a new draft, the 1956 “Draft Rules for the Limitation of the Dangers incurred by the

Civilian Population in Time of War”. The ICRC tried through these actions to “adhere more closely

to the accepted Geneva concerns” and the consequential denomination of its commission as the

international humanitarian law commission was a clear signal of its ambitions. For the first time the

term international humanitarian law has been recognized and the ICRC general director, Jean Pictet,

continued to publicize it through his publications in 1960s.

11 Through this works, “Pictet explained

that he used the term international humanitarian law to comprise the humanitarian, Geneva, laws of

war and human rights” 12

. However, international humanitarian law was not considered as a

replacement for the laws of war, but was instead just a way to reconcile the laws of war and human

rights. This strong shift led to disputes among the three most prominent actors: Sean Macbride, the

UN general assembly and the ICRC.

Sean Macbride was the secretary-general of the international commission of jurists (ICJ) and the co-

founder of amnesty international. Macbride had a long-standing interest in prisoners, human rights

abuses and “in depredations of armed conflict that can be attributed to his own life experiences”. In

1968 Macbride had the chance, during the international conference on humans rights held in

10 Kunz, ‘The 1956 Draft Rules of the International Committee of the Red Cross at the New Delhi Conference’, 53 AJIL (1959)

11 Pictet, ‘The Development of International Humanitarian Law’, in C. Jenks et al. (eds), International Law in a Changing World (1963).

12 Amanda Alexander, A Short History of International Humanitarian Law. The European Journal of International Law Vol. 26 no. 1. Published by

Oxford University Press 2015 4

Tehran, to expose his theories imposing human rights in law. While the resolution “calling for

humanitarians principles in armed conflict failed”

13 , the first official connection between human

rights and the laws of armed conflicts was established.

Once the resolution proposed by Macbride passed, the UN assembly decided, after an in-depth

analysis, to pass the “Resolution 2444 on respect for human rights in armed conflicts”

14 on 19

December 1968. This issue continued to be discussed during the others UN assemblies until the

25th session developed the resolution 2597 that requested the “need for protection of the rights of

civilians and combatants in conflicts that arise from the struggles of people under colonial and

foreign rule for liberation and self-determination” 15

. Several nations accepted this resolution for

personal interests. Among these, the United States of America wanted to increase the protection of

prisoners, the Soviet Union’s aim was to condemnation aggressive war and, finally, France needed

to increase the protection of media.

These new achievements led to the establishment of a collaboration between the UN and the ICRC

with the aim of emphasizing the innovations that were arising. After the failure of the 1956 Draft

rules

16 , the ICRC had the possibility of reaffirming its ambitions and willingness in the 1969

Istanbul conference. The conference, under the title “Reaffirmation and Development of the laws

and customs applicable in armed conflicts”

17 developed the new resolution XIII, which stated:

“ The necessity and urgency of reaffirming and developing humanitarian rules of international law

applicable in armed conflicts of all kinds, in order to strengthen the affective protection of the

fundamental rights of human beings, in keeping with the Geneva conventions of 1949”.

18

This necessity urged by the resolution led to the reconceptualization of the term international

humanitarian law. Through the establishment, in 1971, of the ‘Conference of Government Experts

13 Amanda Alexander, A Short History of International Humanitarian Law. The European Journal of International Law Vol. 26 no. 1. Published by

Oxford University Press 2015

Amanda Alexander, A Short History of International Humanitarian Law. The European Journal of International Law Vol. 26 no. 1. Published by

14

Oxford University Press 2015

15 Amanda Alexander, A Short History of International Humanitarian Law. The European Journal of International Law Vol. 26 no. 1. Published by

Oxford University Press 2015

16 Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War 1957, ICRC, XIXth International Conference of

the Red Cross (New Delhi, January 1957).

17 ICRC, XXIst International Conference of the Red Cross: Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts

(1969).

18 ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed

Conflicts, Geneva, 24 May–12 June 1971. 5

on the Reaffirmation and Development of International law’ we can testify for the first time the

description of this term “as those rules of the law of armed conflict that are clearly humanitarian in

nature, in other words, all those rights that protect human beings and their essential properties”

19 . As

a conclusion, the term began to be used not only to refer to the Geneva conventions but also to all

those treaties and customary law rules that lay down limits in armed conflicts.

The historical establishment of the term international humanitarian law can be found in the 1974

Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law

Applicable in Armed Conflicts where 700 delegates started to express different views on how this

principle should be evaluated and defined. The result of these delegates’s confrontations has been a

severe four years delay. The main arguments held by the conference participants were related to the

principle of proportionality, according to which the military commander had an unlimited right to

decide to launch attacks, and to the principles of discrimination which prohibited the use of some

weapons. Once the disputes were resolved, the conference announced the establishment of two

additional ‘protocols’. Protocol I dealing with external armed conflicts and protocol II dealing with

internal armed conflicts. These additional protocols were seen as the new framework for the

international humanitarian law.

Although these controversies seemed to be solve, many nations were highly hesitant about the

strongly humanitarian values that were adopted and as such some governments refused to ratify

additional protocol I. Despite the first optimism, even the USA refused to ratify the protocol through

its President Ronald Regan’s view of the subject, who described protocol I, in 1987, as

“fundamentally and irreconcilably flawed”

20 . Other states ratified these treaties only after several

years such as Australia in 1991, United Kingdom in 1998 and France in 2001.

These controversies have arisen because protocol I was considered to be far away from the ius in

bello fundamentals and therefore defined not as customary law but as a ‘psuedo-code’, something

that looks like law but does not have any rule of law or sovereignty.

The consequence of this uncertainty was the slow refusal of these principles in the twentieth century

last decades characterized by the gulf war and the ethnics conflicts in Yugoslavia and Rwanda.

However, the terrible suffering of these conflicts led to the acceptance of additional protocol I as

ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed

19

Conflicts, Geneva, 24 May–12 June 1971, vol. 1 (1971), at 11.

Amanda Alexander, A Short History of International Humanitarian Law. The European Journal of International Law Vol. 26 no. 1. Published by

Oxford University Press 2015

20 Reagan, ‘Letter of Transmittal’, 81 AJIL (1987) 910, at 911. 6

customary law and the endorsement of the contested humanitarian values of international

humanitarian law. Additional Protocol I was therefore no longer concerned as a ‘psuedo-code’ but

instead became object of studies and research bringing to the birth of a new set of literature

concerning crimes against humanity. We can thus argue for the first correct recognition of

humanitarian law, in which human considerations exceeded military necessities. As follows

“international humanitarian law was cemented not only as the governing regime of ius in bello but

also as a respected and prestigious regime”.

Conclusion

In conclusion the author decided to finish hers article dating international humanitarian law at the

end of the 20th century because, up to her, is the real juncture in which international humanitarian

law won general acceptance. Further on she outlines two specific moments which are spotted as the

central changes of the development of this law. It began suddenly in 1970s when, within the

creation of the Additional Protocols to the Geneva conventions, it was posed in a branch of

jurisprudence. Afterwards only in 1990s, without any specific mechanism, the additional protocols

were accepted by the majority and became the basis of international humanitarian law. Later on she

traces a guideline in which she describes what allowed these changes. She didn’t identified them in

the process of codification nor on a