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Realizing UtopiaThe Future of International Law$
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The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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Bolstering the Protection of Civilians in Armed Conflict

Bolstering the Protection of Civilians in Armed Conflict

(p.508) 38 Bolstering the Protection of Civilians in Armed Conflict
Realizing Utopia

Nils Melzer

Oxford University Press

In virtually all contemporary armed conflicts a staggering 90% 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 practitioners take a step back from an overly technical, political, or positivist analysis of the law and look at the questions presenting themselves through the prism of general, well-established principles of law, most notably the principles of: necessity; proportionality; precaution; and humanity, which underlie the entire normative framework governing the use of force. Indeed, wherever states resort to force, whether in self-defence against armed attacks, in the conduct of hostilities against belligerent adversaries, or in exercise of their law-enforcement authority, it is always these four principles which circumscribe the permissible scope and intensity of their action. In short, these four principles reflect general principles of law which govern the use of force by states in all circumstances. 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).

Keywords:   armed conflict, international law, civilian protection, rebels

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