Reciprocity and the humanization - and dehumanization - of international humanitarian law

This thesis critically analyses the abandonment of the si omnes clause and reciprocity as a conceptual underpinning of the operation of international humanitarian law (IHL) treaties and its impact on what Judge Theodor Meron calls ‘the humanization’ of IHL. In historical IHL treaties, the si omnes clause determined which parties to a conflict could be bound by the rules and when they applied. Since the end of World War II, a narrative has been constructed around humanitarian law by its main architects, the ICRC, and its advocates, such as Meron. Early ICRC men, such as Pictet, present a universalist narrative, especially in the Commentaries to the 1949 Geneva Conventions. The ICRC, and other publicists, depict the series of revisions to IHL as a steady progression towards constructing a legal framework that increasingly focuses on protecting humanity during war. After the establishment of the ad hoc tribunals and the ICC in the 1990s, the dominant narrative was extended to include international courts and tribunals as agents of humanization through their enforcement of IHL and their pronouncements on customary international law. The system of IHL described is enshrined in the 1949 Geneva Conventions, their Additional Protocols of 1977, and the emerging framework of international criminal law created by Chapter VII tribunals, the ICTY and ICTR, and the Rome Statute of the ICC. Through an analysis of three case studies, Common Article 1, Common Article 3, and the grave breaches regime, it shows that the gradual abandonment of the si omnes clause reduced the divide between states and peoples historically lacking in IHL protection in NIAC and colonial contexts but did not eliminate reciprocity in its entirety.

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University of Galway

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University of Galway

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CC BY-NC-ND

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University of Galway Theses (PhD Theses)