CYIL 2012

HUMAN SECURITY IN TIMES OF WAR OR TOWARDS A FOURTH WAVE OF HUMANIZATION… 2.2 Humanization of International Humanitarian Law The origins of the modern law of armed conflict are usually placed into the mid 19 th century. They coincided with the efforts to codify older customary rules and to complement them with new provisions reflecting the reality of armed conflicts of the period as well as the spirit of humanitarianism, then widespread in the Western societies. Since the mid-19th century, the law of armed conflicts has undertaken a long and complex development, in the course of which it has changed significantly. This development has implied two other waves of humanization, reflecting the onset in international relations of the concepts of human rights in the mid-20 th century and the resurrection of the idea of human accountability in the late 20 th century. Important changes have occurred “in both the substance and the language of the law” . 14 IHL – now called as such – has become more focused on the needs of individual human beings and less attached to classical interstate reciprocity. It has also expanded to cover new types of situations and it has seen the establishment of enforcement mechanisms aimed at ensuring the accountability of those who act in violation of its rules. The three waves of humanization which have shaped modern IHL have been marked by different underlying concepts. These concepts determined the specific direction that each of the three waves took on. Although sharing the same individual centred orientation, the three underlying concepts differed significantly in the way in which they defined the relation between individuals and the state and in which they conceived of the role of the legal regulation. Despite that, it is important to stress that the three waves cannot be strictly isolated from each other. They have not followed one another in discrete time periods, with each underlying concept producing its effects and then fading in history. Rather, the three underlying concepts have all remained part of the ideological basis of IHL, corroborating – and occasionally clashing with – one another. Moreover, these concepts and their impact upon IHL have been regularly challenged in the name of other important international concepts. Thus, the evolution towards more human IHL has been neither easy nor unquestioned – yet, it has taken place despite all these obstacles. It is time now to trace it in more detail. T he first wave of humanization of IHL – or, to respect the terminology of the time, of the law of armed conflict – began in the mid-19 th century and went on for about a century. 15 It was inspired by the values and ideals of humanitarianism. It brought about the creation of modern IHL as we know it today, with its two branches of the Geneva and Hague laws: the former protecting victims of war, the latter regulating the means and methods of warfare. It also witnessed the establishment of an independent organization tasked to monitor and promote the respect of IHL, the International Committee of the Red Cross (hereafter the ICRC). The first wave 14 T. Meron (2000), op. cit., 239. 15 For more on the history of IHL see. McCoubrey, International Humanitarian Law: Modern Developments in the Limitation of Warfare, Ashgate, 1999; G. D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, Cambridge University Press, 2010.

111