Fragmenting War: IHL, Legal Diversification and the Multiple Regulation(s) of Armed Conflicts under Public International Law

BUIS, EMILIANO JERÓNIMO

Minsk

Jornada; Jornadas sobre Derecho Internacional; 2012

Instituto Internacional de Ciencias Sociales y Laborales

International Humanitarian Law (IHL) is a branch of Public International Law (PIL) that aims at reducing the excessive violence during armed conflicts, both by sparing those who do not (or no longer) participate in hostilities and by regulating the means and methods of warfare. As such, IHL is considered to be a very specific legal regime applicable as lex specialis in very precise and concrete situations, i.e. both international and non-international armed conflicts. However, situations of armed violence are not only regulated by States through IHL, and several rules contained in other branches of PIL are also relevant when addressing the protection of victims or the limitation of weapons. I endorse here the relevance of taking into consideration the concept of ?fragmentation? in order to understand the current situation of PIL provisions relevant to periods of armed conflicts. According to a report by a Study Group of the International Law Commission convened by Prof. Koskenniemi (A/CN.4/L.682) and presented to the UN General Assembly in 2006, the fragmentation of PIL represents a fairly recent phenomenon that can be explained because of the growing specialization of international relations and the relative autonomization of legal regimes and spheres as agreed by States. Thus, since each special discipline within PIL (?human rights law?, ?law of disarmament?, ?law of the sea?, inter alia) possesses its own principles and institutions, there is always a latent possibility of conflict or collision between different set of rules which are equally applicable to the same contexts or facts. The purpose of this lecture is to raise consciousness on the need of reassessing the nature of IHL as a ?self-contained? legal regime, exploring its limits and shortcomings, and suggesting a complex reading of the multiplicity and diversity of PIL rules in times of war and civil strife. In particular, the regulation of armed conflicts under human rights law (both in terms of content and jurisdiction) will be addressed in this presentation. This example will open the floor to further discussion on other theoretical or practical aspects concerning IHL in the light of institutional or substantive fragmentation.