The roots of positive international law come from a concept of war developed in the nineteenth century. In other words, they are binding even on States or belligerents that have not formally adhered to such rules. The endurance and constancy of these rules over time means that a number of them are considered “customary,” meaning they are internationally accepted. The law of international armed conflict was codified progressively over the course of hundreds of years. While first concerned with combatants, humanitarian law has thus moved toward greater protection of civilians and the development of rules applicable to internal conflicts. The use of terror against civilians has always been a core characteristic of such asymmetrical conflicts. Consequently, conflicts again moved toward the civilian sphere, involving more and more armed non-state actors. The Cold War led to a “balance of terror,” with no possibility for direct military confrontation between States with nuclear powers. Rather, guerilla activities led by more or less organized non-state actors now intervene in the civil arena. Therefore, conflicts did not oppose traditional State armies. With the wars for decolonization, States and non-state actors claimed legal autonomy. However, the conflicts in the past fifty years were different. Originally, this set of laws concentrated on interstate conflicts where armies of comparable strength fought each other. Humanitarian law adjusted to the developments of warfare. This is meant for the protection of civilians, as well as to clarify that the use of force that is permitted is not granted to all individuals but must be carried out within a collective and structured organization, under a clear chain of command. It also stresses the importance of distinguishing between civilians and combatants. International law does this by regulating war and prohibiting specific acts and behavior, such as gratuitous massacres and the extermination of civilian populations, which may make a return to peace and reconciliation difficult. Throughout the ages, rules have been written and accepted by States to limit the use of force to protect societies from the long-term effects of war, by attempting to prevent conflicts from reaching a point of no return. ▸ Aggression ▸ Collective security ▸ Security Council of the UN ▸ Self-defense It restricts the means and methods of war allowed, regardless of the objectives pursued. Contemporary international law limits the conditions under which a State may resort to force. It is worth noting that, in the area of jus gentium, important Islamic writings were drafted before-and therefore probably influenced-European codification.Ĭontemporary international law encompasses these traditions-therefore giving them a universal character. This theory progressively moved from the requirement of “just war” to the requirement of “just means.” Subsequently, European lawyers such as Grotius, Vittoria, or Vattel, as well as Muslim lawyers such as Chaybani, transformed moral standards into legal rules, thereby anticipating contemporary universal codification. The theory of “just wars” or “holy wars” is an illustration of the ambiguity of such a phenomenon. If the enemies did not speak the same language or were from a different religion, these rules were not respected. However, these rules were enforced only between people of the same cultural background. Most of its principles were inspired by religion and aimed at humanizing social, political, and military relationships. Indeed, the first Chinese treaty was drafted by Sun Tzu during the sixth to fifth centuries BC. The first laws of war were not universal but regional. They also aim at limiting the impact of violence and destruction on the physical and mental integrity of combatants, in order to facilitate their return to society after the conflict has ended. These rules aim at trying to maintain control, discipline, and efficiency of military forces. In all historical periods, leaders set up rules and taboos that determine what is allowed and what is forbidden in military activities. It is closely linked to the history of war. The concept of international humanitarian law goes back to ancient history and exists in every culture, religion, and tradition. War is governed by the law of armed conflict, also called “international humanitarian law.” War is a phenomenon of organized collective violence that affects either the relations between two or more societies or the power relations within a society.
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