Fundamentals of law

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Fundamentals of law

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Footnotes [1] For example, civilians. It is not necessary to harm civilians, only combatants. It is not necessary to destroy the enemy country, but only to Fundamentals of law it. It is not necessary to destroy civilian infrastructure, but only objects contributing to military resistance.

To understand IHLone must start with the concepts and inherent features of the traditional layer: IHL was conceived as a body of law regulating belligerent inter-State relations.

It is to a large extent irrelevant, however, to contemporary humanitarian problems unless understood within the second layer. Indeed, inter-State armed conflicts tend to have disappeared, except in the form of armed conflicts between the members of organized international society or, on the one hand, those who claim to represent it and, on the other hand, States outlawed by it — a phenomenon of the second layer.

From the perspective of Fundamentals of law layers, IHL is perched at the vanishing point of international law, but is simultaneously a crucial test for international law. From the perspective of the first layer, it is astonishing but essential for our understanding of the nature and reality of international law to see that law governs inter-State relations even when they are belligerent, even when the very existence of a State is at stake, and even when the most important rule of the first layer — the prohibition of the use of force — has been violated or when a government has been unable to impose its monopoly of violence within the territory of the State.

Fundamentals of law

In the latter case, which is tantamount to a non-international armed conflict, what is most striking is not so much the fact that international law regulates a situation that transcends the axioms of the first layer, but the fact that its international rules apply not only to the use of force by the government but also directly to all violent human behaviour in the situation.

From the perspective of the second layer, it is perhaps even more difficult to conceive — but essential to understand — that international law governs human behaviour, even when violence is used, and even when essential features of the organized structure of the international and national community have fallen apart.

No national legal system contains similar rules on how those who violate its primary rules have to behave while violating them. IHL exemplifies all the weakness and at the same time the specificity of international law. If the end of all law is the human being, it is critical for our understanding of international law to see how it can protect him or her even, and precisely, in the most inhumane situation, armed conflict.

Some have suggested — albeit more implicitly than explicitly — that IHL is different from the rest of international law, either because they wanted to protect international law against detractors claiming to have an obvious prima facie case proving its inexistence, or because they wanted to protect IHL from the basic political, conceptual or ideological controversies inevitably arising between States and between human beings holding diverging opinions on the basic notions of international law and its ever changing rules.

This suggestion, however, cannot be accepted, as it fails to recognize the inherent inter-relation between IHL and other branches of international law.

Fundamentals of law

IHLdistinct from humanitarian morality or the simple dictates of public conscience, cannot exist except as a branch of international law, and international law must contain rules concerning armed conflict, as an unfortunately traditional form of inter-State relations.

Indeed, law has to provide answers to reality, it has to rule over reality; it cannot limit itself to reflecting reality. The latter, the necessarily normative character of law, the inevitable distance between law, on the one hand, and politics and history, on the other, is even more evident for IHLgiven the bleak reality of armed conflicts, which cannot possibly be called humanitarian.

Quotation 1 [I]n the matter of those parts of the law of war which are not covered or which are not wholly covered by the Geneva Conventions, diverse problems will require clarification.

These include such questions as to implications of the principle, which has been gaining general recognition, that the law of war is binding not only upon states but also upon individuals i.

In all these matters the lawyer must do his duty regardless of dialectical doubts — though with a feeling of humility springing from the knowledge that if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law.Climate change is now a major concern.

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