CHAPTER 2 IHL: HISTORICAL DEVELOPMENT AND FUNDAMENTAL
2.1 Introduction
IHL is understood as being that part of international law which governs the conduct of armed conflicts.62 In broader terms, the IHL applicable in armed conflicts may be defined as international rules institutionalised by customs and treaties which are directly formulated to resolve humanitarian issues that may arise from either international or national armed struggles.63 Concordantly, the principles underpinning IHL arise from the need to set limits on the conduct of armed conflicts.64 The most noteworthy treaties that IHL consists of are The Hague Conventions65 of 1899 and 1907, and the Geneva Conventions66 of 1949, as well as the Additional Protocols of 1977. Essentially, the rules of warfare that predate the Geneva Conventions (1949) were founded on a military paradigm, as it prescribed the permissible methods and means of armed conflict as well as the duties of combatants towards those that were wounded, sick or imprisoned.67
IHL as it is largely known today can be traced from the Geneva Conventions (1949).
The central principle of this novel body of law was humanity, which was supported by the concept of "protected persons". Later on, in the 1970's, it was deemed
62 Crowe and Weston-Scheuber Principles of International Humanitarian Law 1.
63 Peace Operations Training Institute 2012
http://cdn.peaceopstraining.org/course_promos/international_humanitarian_law/international_hu manitarian_law_english.pdf.
64 Crowe and Weston-Scheuber Principles of International Humanitarian Law 1.
65 These Conventions were adopted by the Peace Conferences at that time, and regulates the conduct of armed conflicts on sea, on land and in the air (via the utilisation of balloons). Several texts that were drafted in 1899 were subsequently revised in 1907; see Dinstein The Conduct of Hostilities under the Law of International Armed Conflict. IHL will be discussed below.
66 The Geneva Conventions of 1949 are comprised of the Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949); the Geneva Convention II for the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); the Geneva Convention III relative to the Treatment of Prisoners of War (1949); and the Geneva Convention IV relative to the Protection of Civilian Persons in Time of War (1949). The Geneva Conventions of 1949 were subsequently supplemented by: Additional Protocol I Relating to the Protection of Victims of International Armed Conflicts (1977); and Additional Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts (1977); see Sassoli et al How does Law Protect in War 99.
67 Kolb Advanced Introduction to International Humanitarian Law 12.
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necessary to further develop the Geneva Conventions (1949) and thus, the two AP's to the Geneva Conventions (1977) were adopted.68 Because the rules concerning the methods and means of armed combat had been left largely unreformed since 1907, it was deemed pertinent to develop principles that would extend to the protection of civilians.69 As a result, doctrines such as the principles of distinction and proportionality were developed to extend protection to civilians during wartime.70 Technology has an immense impact on the capabilities of states to wage war.71 The rapid development and proliferation of the means and methods of warfare over the last thirty years (attributed to the major advancements made in science and technology) have in certain instances proven somewhat problematic towards the fundamental principles of IHL,72 and some authors have questioned the capacity of IHL to address these challenges.73 For instance, Nasu and McLaughlin74 have held that the changing conditions of warfare (especially in relation to new technologies such as robotic and decision-making technologies) have undoubtedly tested the scope and currency of IHL in a ''constant, radical, aggressive and exhaustive manner''. According to Boutruche75 the challenges faced by IHL and its fundamental principles also extend to the question of whether technological progress is creating substantial obligations for armed conflict between rivals who possess advanced technology in their arsenals. The author further holds that challenges posed to legal regulation by technology, as with other developing areas regulated by IHL, exert pressure on the current norms as to the methods of armed conflict.76 This could
68 Kolb Advanced Introduction to International Humanitarian Law 15.
69 Kolb Advanced Introduction to International Humanitarian Law 15.
70 A 48 of AP I; also see Kolb Advanced Introduction to International Humanitarian Law 16.
71 Boothby, however, holds that it is a rather difficult task to determine whether it is technology which challenges the law, or whether it is the law that challenges the utilisation of novel technological advances made in armed conflicts; see Boothby "The Legal Challenges of New Technology: An Overview" 22.
72 See for instance ICRC 2007 IRRC 721; Boutruche "Current Challenges in the Legal Regulation of the Methods of Warfare" 22-29; Liivoja 2015 IRRC 1158; Boothby "The Legal Challenges of New Technology: An Overview" 21-27.
73 According to the ICRC, although IHL aims to limit the behaviour in armed combat situations, there will always be persons, states and non-state armed groups who will not be dissuaded, regardless of the penalty, from violating these laws; see ICRC 2007 IRRC 721.
74 Nasu and McLaughlin New Technologies and the Law of Armed Conflict 5.
75 Boutruche "Current Challenges in the Legal Regulation of the Methods of Warfare" 24.
76 Boutruche "Current Challenges in the Legal Regulation of the Methods of Warfare" 24.
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potentially lead to new or conflicting understandings of the principles of IHL, or to questioning whether or not there is a need for new law to be implemented in this regard.77
Drones are a prime example of advancements made in technology which present various challenges to IHL and its founding principles.78 Lewis79 holds that the military utilisation of drones in armed combat situations can be described as one of the greater legally controversial problems confronting IHL in the twenty-first century, and that the legality of drones has been examined for an assortment of reasons, but regardless of these criticisms, it is evident that the use of drones in both surveillance and combat is increasing.80
Mandel81 has noted that studying how issues, relating to technology and law were addressed in the past and especially how they were on occasion mishandled provides meaningful lessons about how to respond to future and contemporary law and technological issues as they come to light.82 Liivoja83 also states that the aforementioned holds true for military technology, the law, and war as well. The author holds that a ''history-conscious'' analysis of IHL and the relationship between technology and the law in a military context may provide one with some important insights as to the adequacy of IHL and the development of future regulation.84 In preparation for establishing the adequacy of IHL and the fundamental principles thereof in regulating the challenges posed by drone warfare, this chapter aims to sketch the background and history of this body of law. The chapter places a strong emphasis on the development of IHL in response to advances made in novel technologies relating to armed conflict, to illustrate the importance of IHL as a constantly developing body of law, which is also constantly faced by the challenge of having to regularly adapt to the perpetual advancements made in armed combat.
77 Boutruche "Current Challenges in the Legal Regulation of the Methods of Warfare" 24.
78 Sehrawat 2017 JLIA 166.
79 Lewis 2012 TILJ 294.
80 Lewis 2012 TILJ 294;see also Sehrawat 2017 JLIA 166.
81 Mandel 2007 MJLST 552.
82 Liivoja 2015 IRRC 1172; Mandel 2007 MJLST 552.
83 Liivoja 2015 IRRC 1172.
84 Liivoja 2015 IRRC 1157.
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