International humanitarian law in the twenty-first century

In: Yearbook of international humanitarian law, Band 6, S. 3-40

Abstract

No one would consider constructing a building without first checking whether its foundations are sound. It is no different with international humanitarian law.It is useful to examine the difficulties and even failures of international humanitarian law encountered in practice. But before beginning work on a renewal or development of the law, one must be sure the undertaking can be withstood by the foundations and that it will not call into question the very principles on which the law is founded. Any examination of international humanitarian law will have to be carried out in a very open-minded manner — one that rules out nothing, not even the possibility of scrapping the law entirely and constructing a new edifice on different foundations, if one were convinced that it was not possible to incorporate the changes needed into the law as it stands. To carry out such an examination, it is essential to analyse not only what works well and what works badly but also the underlying reasons for humanitarian law's successes and failures.To sketch out the way forward, I will begin by recalling the pillars on which international humanitarian law stands. I will then look at various shortcomings in the law and consider from whence they arise, whether they justify its amendment, and whether any such amendment is possible without undermining the law's foundations. I will conclude by setting out what solutions may be found in humanitarian law itself, the limits of that law and the consequences that must be recognised in terms of international law and its institutions.