Chapter

Bolstering the protection of civilians in armed conflict

Nils Melzer

Realizing Utopia : the future of international law

Oxford : Oxford University Press, 2012

p. 508-518

English

In virtually all contemporary armed conflicts a staggering 90 per cent of all victims are civilians. A comprehensive and constructive clarification of international law relating to the protection of civilians in armed conflict requires that both academics and practicioners take a step back from an overly technical, political or positivist analysis of the law and look as the questions presenting themselves through the prism of general, well-established principles of law, most notably the principles of : (i) necessity ; (ii) proportionality ; (iii) precaution ; and (iv) humanity, which underlie the entire normative framework governing the use of force. A major problem arises with regard to the lack of any incentive for rebels to comply with international humanitarian law. A viable alternative to the introduction of a full combatant privilege for non-state belligerents would require a two-pronged approach. In accordance with the respective logic of the jus in bello and the jus ad bellum, the conduct of hostilities and the exercise of power and authority over persons in compliance with international humanitarian law should be encouraged and legitimized (first objective), whereas the initiation of, or participation in, an armed conflict in contravention of domestic law should be discouraged (second objective).

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• Realizing utopia : the future of international law / ed. by Antonio Cassese