IHL’s Era of Application?

IHL’s Era of Application?

Today marks the 150th Anniversary of the signing of the first Geneva Convention — the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.  12 States signed it on August 22, 1864, and the treaty went on to have 57 parties before being replaced by later Geneva Conventions in 1906, 1929 and 1949.  The ICRC is using the occasion to make a call for more action on international humanitarian law and to spread knowledge about that law more generally (including a 4 minute video on the Rules of War in a Nutshell).  

It’s interesting to think about the full arc of IHL that this anniversary represents. It seems we’ve gone from decades of iteration — where States and others worked to hammer out what rules actually exist — to what is now much more an era of application.  Today’s IHL debates (many of which we’ve hosted here in recent weeks) regularly revolve around where, when and how specific rules apply to particular cases.  Or, they debate which rules exist only in treaty form versus those that have the status of customary international law.  Even in areas of new technology, the prevailing effort is to explain how existing rules govern by analogy (see, e.g., the Tallinn Manual).  These are all important and even laudatory causes.  But it does leave me with a question:  Is the corpus of IHL now largely complete, or should we expect another round of law generation akin to the Geneva Convention projects of 150 and 75 years ago?  Simply put, is there any new IHL to be made, and, if so, what should it be?   

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Foreign Relations Law
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John C. Dehn

Duncan, I think IHL is still being made in some respects, particularly in its field of application. It seems we have reached somewhat of a stalemate regarding substantive IHL norms, though their proper interpretation and the status/privileges/immunities to be afforded non-state fighters is still contested. I expect substantive changes in the future to be incremental, and would include the current autonomous weapons debates as potential incremental change regarding the necessary human involvement in initiating armed attacks. Field of application has always been a very dynamic area of IHL. IHL developments in the 19th, 20th and the early 21st Centuries did not only occur in the substance of IHL rules but also in the rules regulating their field of application. The law of war was one of “civilized” nations, applicable between only those who observed it. The 1899 and 1907 Hague Conventions continued this theme in that they had general participation clauses stating that the treaties and their regulations did not technically apply unless all parties to the conflict were parties to the treaties. Regarding non-international armed conflict, by custom or at least common understanding, the law of war also applied only to belligerencies, not insurgencies. States were loathe to actually… Read more »