CYIL 2012

VERONIKA BÍLKOVÁ CYIL 3 ȍ2012Ȏ respect for IHL as a matter of concern for international and regional international organizations and for the UN Security Council. 3.2 A Fourth Wave of Humanization of IHL – Potential and Limits The assessment of IHL from the viewpoint of the four parameters of human security has shown that there are many areas of normative correspondence between the two systems. IHL, after the three waves of humanization, is not indifferent to the plight if individuals. In fact, the awareness of this plight and the effort to make it more bearable were among the main factors leading to its creation in the mid-19th century and prompting its later developments. Despite that, one can hardly deny even after the three waves of humanization, that IHL is not fully compatible with the concept of human security. Based on a delicate balance between the principles of humanity and of military necessity, it does not operate on the “individuals first” but on the “individuals as well” premise. It is argued here that some space for a potential forth wave of humanization of IHL exists. At the same time, it is argued that the process of humanization of IHL has its inherent limits, in the consequence of which IHL and human security can hardly be made fully compatible. The fourth wave of humanization of IHL could consist in limiting the application of some of the remaining institutions based on reciprocity and in further strengthening the position of individuals. The first can be illustrated by the example of belligerent reprisals. As already mentioned, this tool, despite its problematic nature, still remains in the enforcement toolkit of IHL. While its scope of application is limited now, it can still be used against enemy soldiers, implying the use of otherwise prohibited means and methods of warfare. Moreover, the legality of reprisals against enemy civilian population and civilian property remains disputable, with many states, and definitely not only the classical rogue ones, insisting on the need to keep these reprisals in the system. Yet, in addition of being problematic morally, the institution has also become less and less necessary in practice due to the evolution of the concept of human accountability and the development of enforcement mechanisms (UN Security Council, etc.). Since reprisals have been preserved solely due to their specific function, once this function is assumed by other more human institutions, there is no reason to maintain them in the system. The second component of a potential fourth wave of humanization would, among other things, pertain to an individual right to reparation for harm caused in armed conflicts. 28 As mentioned in the first section, no such right existed under IHL in the first two periods of its evolution. The situation started to change in the 1990s, in the framework of the third wave of humanization of IHL. Yet, the change has been taking place rather slowly, with many states (and national courts) still resisting the idea of individuals being subjects of IHL. It is sometimes asserted that an individual right to reparation would make it difficult, if not impossible, for belligerents to wage 28 See V. Bílková, Victims of War and Their Right to Reparation for Violations of International Humanitarian Law, 4 Miskolc Journal of International Law 2 (2007), 1-11.

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