CYIL 2012

VERONIKA BÍLKOVÁ CYIL 3 ȍ2012Ȏ phenomena from which “referent objects” are to be protected. It is obvious that IHL primarily seeks to protect human beings against unnecessary, excessive and avoidable violence. The qualifiers are important here, since the protection against violence in IHL is not absolute. Respecting the extreme context in which it applies, IHL seeks to find a solution that would on the one hand spare people from the worst excesses of war, while on the other hand not making it totally impossible for belligerents to wage war. This effort translates into a series of limitative clauses (“whenever possible”, “unless required by imperative military necessity”, etc.) as well as into institutions such as collateral damage. These different escape routes allowing the principle of humanity to be interpreted (some would say distorted) in the light of the principle of military necessity, might be problematic from the perspective of human security. At the same time, one has to note that IHL goes much beyond the narrow definition of human security, protecting individuals not only from direct physical threats but also from various other risks. Under the Hague law, i.e. the subsystem of IHL which “determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm” , 21 individuals should be primarily left off (civilians) or targeted in a “humane” way not causing superfluous injury or unnecessary suffering (combatants). Even here, nonetheless, it is possible to find provisions directed against starvation of civilians or prohibiting means and methods of warfare “which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment” . 22 The Geneva law, i.e. the subsystem of IHL, which protects people who do not, or no longer, take part in hostilities, goes still further. By imposing upon belligerents the duty to take an overall care of such persons and to ensure that their life is as close to normal as possible under the extreme circumstances, IHL seeks to make people free both from fear and from want. The obligations are again softened by limitative clauses, yet they show clearly that IHL strives for more than a mere physical survival of individuals, dealing with economic, food, health, or environmental dimensions of human security as well. From that perspective, even supporters of the broader definition of human security can look at IHL with a sympathetic eye. The “means” of ensuring security (security by what means?) translate more or less into the instruments by which respect for IHL is ensured. One would be tempted to say that such respect is in fact best ensured by the absence of any means, i.e. by simply not interfering into people’s lives. This is partly true, yet not complete. The range of threats that individuals caught in armed conflicts face, requires a diversified set of instruments to avert these threats. In addition to classical military means, this set may include political, economic, social, cultural and other instruments. For instance, to protect the population from starvation means more than just to spare “objects 21 J. Pictet, Development and principles of international humanitarian law: course given in July 1982 at the University of Strasbourg as part of the courses organized by the International Institute of Human Rights, Martinus Nijhoff Publishers, Dordrecht, 1985, p. 2. 22 Article 35 (3) of Protocol I.

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