CYIL 2012

HUMAN SECURITY IN TIMES OF WAR OR TOWARDS A FOURTH WAVE OF HUMANIZATION… guarantees of Article 75 of Protocol I. This, however, does not change the fact that IHL still sees individuals not only “qua persons” but also “qua citizens”. Second, the whole system of IHL is based on the distinction between combatants and civilians. The level (and nature) of legal protection depends on the personal status, individuals being treated not so much as “qua persons” but as “qua holders of a legal status”. It is, however, important to stress that though diversified, the system of protection accorded to the members of the two groups are more or less equivalent, with either of them modelled according to the special needs of the respective group. Civilians enjoy immunity from attacks and a large set of guarantees protecting their life, physical integrity and general well-being. In return, they have to refrain from taking part in hostilities. Combatants, on the contrary, are not protected against enemy attacks. Yet they may lawfully participate in hostilities and, if they do so, they may not be prosecuted for mere acts of warfare not constituting violations of IHL. If they fall into the hands of the enemy, members of both groups enjoy protection, as either prisoners of war (combatants) or civilian detainees (civilians). This regulation applies to international armed conflicts. In non-international armed conflicts, the concepts of combatants and civilians do not exist but the legal regime is construed similarly with the basic distinction between those taking and those not taking direct part in hostilities. As already mentioned, the interests of individuals have to be weighed against those of belligerent parties. This category originally encompassed only states but later on, new actors imposed themselves at the battlefield and were granted a legal status under IHL. The circle includes national liberation movements fighting “against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”, 19 armed opposition groups taking part in non-international armed conflicts and, more and more frequently, international organizations. The plurality of actors at this level challenges the traditional notion of security as an interstate affair. Finally, it is important to stress that all the “referent objects”, be they individuals, states or other entities, have a double role to play in IHL. In addition to their role of “referent objects”, they also assume that of the guarantors of protection in the sense that they have to respect (and sometimes actively uphold) other actors’ rights. From that perspective, the system of IHL is balanced and rests more on the conception of mutual (not reciprocal!) guarantees than on that of a one-way provision of security. This makes it more compatible with the underlying ideas of human security, promoting self-empowerment and responsibility, than one would expect. The “threat” (security from what?) is defined under the security studies as a “ natural or man-made occurrence, individual, entity, or action that has or indicates the potential to harm life, information, operations, the environment and/or property” . 20 T he concept is more difficult to translate into IHL vocabulary. One could nonetheless assert that it is primarily concerned with the content of legal rules and the actions or 19 Article 1(4) of Protocol I. 20 US Department of Homeland Security, DHS Risk Lexicon, 2008, p. 33.

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