CYIL 2012

VERONIKA BÍLKOVÁ CYIL 3 ȍ2012Ȏ started to strengthen the position of individuals. Their protection from the worst excesses of war turned from an issue of state discretion or of religious charity into that of legal obligation. Although individuals were treated as objects or beneficiaries of IHL rather than as its subjects, they were at least included in the legal framework. On the other hand, they did not dispose of any means by which to enforce the protection; the institution of individual criminal responsibility was also under-developed. The regulation only applied in international wars, leaving the treatment of victims of non-international armed conflicts in the domaine reserve of individual states, and it was strongly based on the principle of reciprocity, as reflected in the si omnes clause and the institution of belligerent reprisals. T he second wave of humanization took place in the second half of the 20 th century, during the Cold War. It was originally given impetus by the horrors of the two world wars and later invigorated by numerous wars of national liberation and civil wars fought in the 1940s-1980s. From the normative point of view, the second wave bore a strong imprint of human rights law, which itself emerged in reaction to the same events. The changes manifested themselves both in the terminology and in the substance. The term international humanitarian law was coined in the late 1940s to supplement, and gradually replace, the older terms of laws of war or laws of armed conflict. At the same time, this body of rules undertook significant changes in its scope and content. New rules emerged to protect those categories of persons already covered by IHL as well as new categories so far unprotected, especially civilians. The regulation expanded for the first time to cover non-international armed conflicts. Despite these changes, the system still treated individuals primarily as objects, and went on incorporating certain institutions based on reciprocity, such as belligerent reprisals. T he third wave of humanization started after the end of the Cold War. Unlike the two previous waves, it was not linked so directly to one particular concept. Rather, it took place under the impetus of the overall factual and normative changes which occurred in the post-1990 period. The conventional narrative traces the origins of the developments back to the end of the Cold War and the onset of globalization processes. Since those same changes brought about the concept of human security, the evolutions of IHL and of human security have not been fully separated in this stage. If there is one idea to be selected to characterise the normative underpinning of the third wave of humanization, it would be the idea of human accountability. This idea helped clarify which behaviour under the law of armed conflicts was unacceptable. It also brought about the establishment of international criminal tribunals, whose case-law further contributed to the clarification of the content and scope of primary rules of IHL. Other developments occurred as well, including a further extension of the circle of rules applicable in both international and non-international armed conflicts, a gradual convergence between the legal regimes applicable in these two types of conflicts, and the debate over individual rights under IHL. 16

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16 See L. C. Green, The contemporary law of armed conflict, Manchester University Press, 2000.