International humanitarian law, postcolonialism and the 1977 Geneva Protocol I
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Melbourne journal of international law, Vol. 17, no. 1, June 2016, p. 1-36
The 1977 Geneva Protocols are the core of the contemporary international humanitarian law regime. This article looks at how Protocol I was drafted and how it introduced and managed significant changes to the ius in bello concerning the character of national liberation movements, the status of irregular belligerents and the protection of civilians. It shows that while the delegates fought passionately over some of these changes, compromised and equivocated over others, there were other changes that they accepted readily, without even regarding them as change. The article examines the disciplinary strategies and conventions that allowed the delegates to conceal change in this way. It argues that the most successful legal changes were enabled by discursive changes that had already taken place outside the legal sphere. Postcolonial discourse and social movements had transformed the available possibilities of speech and thought, rendering the traditional understanding of the law reprehensible. Lawyers were compelled to erase the existing provisions of the law and posit new ones that were more in line with contemporary sentiment. Many of these new provisions were problematic and paradoxical, but they were all that could be said at the time. The result was a document that was rejected by military states for many years, but survived as a resource that was eventually adopted by more sympathetic lawyers. In this way, the article historicises the provisions of the Protocol I, while showing the influence of external movements and anticolonial thought on international humanitarian law.
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