CYIL 2012

VERONIKA BÍLKOVÁ CYIL 3 ȍ2012Ȏ that the interests of the former are embodied in the principle of military necessity, while those of the latter find their expression in the principle of humanity. The two principles are equally important and IHL regulation results from a balance between them. More than “individuals first”, the main premise of current IHL is thus that of “individuals as well”. In that respect, IHL may be seen as derogating from human security. At the same time, it is true that the principle of military necessity is not fully negligent of considering individual interests either. By allowing belligerents to use means and methods of warfare which are necessary to bring about a successful conclusion of military operations, it at the same time allows them to use only such means and methods. In this way, it serves both as a spur and a bridle, making waging of war possible but restraining its worst excesses. This is certainly in the interests of both belligerent parties and individuals. A more serious discrepancy arises with respect to the treatment of individuals. Human security is based on the universalist egalitarian idea under which all human beings whatever their nationality, race, gender, or social status, are worth equal protection. “Rather than viewing security as being concerned with ‘individuals qua citizens’ /it/ views security as being concerned with ‘individuals qua persons’.” 18 There is space left for positive discrimination of those who are more vulnerable due to their age, sex, state of physical or mental health, etc. Negative discrimination is, on the contrary, prohibited. IHL, with its highly diversified system of protection, may seem at odds with these ideas. It does not content itself with creating special norms for the most vulnerable (children, elderly, internally displaced, etc.) but knows several other distinctions (civilians vs. combatants, prisoners of war vs. civilian internees, etc.) as well. Moreover, for a long time, some groups of persons were simply excluded from its scope of application entirely. In fact, at the beginning its rules only covered wounded and sick soldiers. Although in the process of humanization, the circle of individuals protected by IHL has gradually been expanded to leave no one outside the system, the diversification between individuals persists. First, nationality still matters. For instance, under the Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, protected persons are defined as “those who /.../ find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” [Article 4(1)]. Moreover, “nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are” [Article 4(2)]. It is true that the rationale behind this provision is not so much the lack of care for these other persons as it is the belief that they are already sufficiently protected by other branches of law (human rights law, diplomatic law, domestic law, etc.). It is also true that, nowadays, even these persons fall into the scope of application of IHL, being covered by the fundamental

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18 D. T. Graham, N. K. Poku (eds), Migration, Globalisation and Human Security . Routledge, 2000, p. 17.