Article

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The principle of humanity under international humanitarian law in the "is/ought" dichotomy

Yutaka Arai-Takahashi

• Japanese yearbook of international law, Vol. 54, 2011, p. 333-364

English

The paper starts with two main premises: first, that much more saliently than in other fields of international law, interpretation of International Humanitarian Law (IHL) rules is, through the overarching principle of humanity, contingent on different subjective values derived from the metaphysical world, the world beyond our concrete, verifiable, social sphere; second, that while the principle of humanity is often associated with "ought"-driven, deductive methodology, the principle of military necessity has a penchant for inductive reasoning based on rigorous empirical data and accuracy. The paper's analysis turns to the time-honoured philosophical theme on the dichotomy between the law as it is and the law as it ought to be to obtain guidelines for explaining how to flesh out the "posited moral" concept of humanity when construing IHL. In that process, the paper teases out schematically implications drawn from different strands of legal thought on the separation or unification of this division. After undertaking such theoretical inquiries, it suggests that Ronald Dworkin's theory on interpretation be applied to acquire analytical insight into the mechanism of distilling and feeding moral values into the normative framework of IHL.