CYIL 2012

HUMAN SECURITY IN TIMES OF WAR OR TOWARDS A FOURTH WAVE OF HUMANIZATION… indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas /.../, crops, livestock, drinking water installations and supplies and irrigation works” 23 from destruction. It also means that belligerents need to ensure that people have what they need to survive, either by providing such objects themselves or by granting access to (and ensuring security of) humanitarian and relief organizations. While these instruments do not pose problems of compatibility with human security, others may be more disputable. This is especially the case of belligerent reprisals. Resting on the principle of collective responsibility, under which innocent people bear consequences of unlawful acts committed by others, 24 reprisals are at odds with the principle of humanity. 25 This turns them into a morally problematic or even, in the words of the ICTY, “a barbarous” 26 means of securing compliance with international law. During the process of humanization of IHL, limitative conditions have been imposed on reprisals (last resort use, proportionality etc.). Moreover, several groups of persons (prisoners of war, wounded and sick, etc.) and objects (cultural property, natural environment, etc.) have been made immune from them. Yet, despite these restrictions, the instrument has not lost its inherent inhumanity, making IHL clash with the requirements of human security in this respect. The “actors” granting security (security by whom?) are those who ensure respect of IHL. Traditionally, the main responsibility in this area has fallen on states engaged in a conflict. Over the decades, however, the category has been extended. First, individuals have been made subjects of obligations, accountable for violations of IHL (especially war crimes). Second, the notion of parties to the conflict has been extended to include non-state actors such as armed opposition groups. Finally, respect of IHL has gradually ceased to be perceived as being of interest merely for those implicated in a given conflict. Many rules of IHL are nowadays considered to be of erga omnes nature, with all members of the international community having a legal interest in ensuring that these rules be observed. Common article 1 of the Geneva Conventions under which “the High Contracting Parties undertake to respect and to ensure respect for /IHL/ in all circumstances” has been more and more often interpreted as imposing upon states the obligation to “to do everything /they/ can to ensure that the rules /.../ are respected by its organs and /.../ by all”. 27 There is also a growing tendency to treat 23 Article 54 (2) of Protocol I. 24 “Belligerent reprisals by their very nature rely on a principle of collective responsibility, whereby an enemy’s military, government and civilian population are treated as a single group, and measures directed at certain members of that collective will, in theory, coerce the actual.” S. Darcy, What Future for the Doctrine of Belligerent Reprisals , 15 Yearbook of IHL (2002), p. 112. 25 “It hardly needs emphasizing that this goes to the roots of the concept of human rights, as fundamental rights of the human being as an individual, as distinct from his position as a member of the collectivity.” F. Kalshoven, Belligerent Reprisals, Leyden, 1971, p. 186. 26 ICTY, Prosecutor v. Kupreškić, Case No. IT-95-16-T, Decision, 14 January 2000, par. 528. 27 See L. Boisson de Chazournes, L. Condorelli, Common Article 1 of Geneva Conventions revisited: Protecting collective interests, 837 International Review of the Red Cross (2000) , p. 69.

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