CYIL 2012

HUMAN SECURITY IN TIMES OF WAR OR TOWARDS A FOURTH WAVE OF HUMANIZATION… war. This argumentation is not convincing. An individual right to reparation already exists under human rights law, as well as under most national legal orders, and, as such, is available to victims of non-international armed conflicts as well as to some victims of international armed conflicts. Under these legal systems, no attention is often paid to the specificities of the context of armed conflict. Thus, establishing a system of individual reparations directly under IHL, taking into account its needs and features, would in the end be positive not only for individuals but for the belligerent parties as well. A fourth wave of humanization of IHL would, however, have inherent limits. Those limits can easily be demonstrated in two examples relating to the distinction between combatants and civilians and to the concept of collateral damage. The distinction between combatants and civilians is crucial for IHL. It helps it to strike the balance between the principles of humanity and of military necessity by making it possible for belligerent parties to wage war, while at the same time ensuring that those not taking part in hostilities are protected from consequences of belligerent actions. Doing away with the distinction and seeking to treat everyone in the same way would lead to paradoxical results. If IHL prohibited attacks against any individuals, belligerent parties would only be left with two options. First, they could respect IHL, which would make waging war impossible – and IHL unnecessary. Second, they could disrespect IHL and thus target people and objects without any distinction, which would make war arbitrary – and IHL unnecessary (or rather useless) again. In other words, if IHL is to remain jus in bello and not to turn into jus contra bellum , it cannot abandon its fundamental categories. The concept of collateral damage presents a similar case, though prima facie it seems easier to deal with. Accepting that “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which /is not/ excessive in relation to the concrete and direct military advantage anticipated” 29 do not constitute violations of IHL, might indeed seem cruel and inhuman. Yet, again, the institution seeks to strike a balance between the principles of humanity and of military necessity. It is based on the idea that while directly targeting civilians is never permissible, belligerent parties cannot always avoid striking civilians incidentally. Subjecting the institution of collateral damage to limitative conditions (proportionality, due diligence requirement, etc.) is reasonable. Prohibiting it altogether would mean imposing upon belligerent parties unrealistic obligations that they, if they want to wage war, simply cannot meet. 4. Conclusions Since its creation in the mid-19 th century, IHL has gone through a process of gradual humanization. This process, consisting of three main waves, has strengthened the legal position of individuals, reduced the role of reciprocity, and turned the course of both international and non-international armed conflicts into a matter of concern for the international community as a whole. The turn of the 20 th and 21 st centuries 29 Article 57(2)(iii) of Protocol I.

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