INTERNATIONAL HUMANITARIAN LAW AGAINST THE BACKGROUND OF CUSTOM AND HUMANITY

• Main Author: Nell, Albert
• Other Authors: Prof SA de Freitas
• Format: Others
• Language: en-uk
• Published: University of the Free State 2011
• Subjects: Constitutional Law and Philosophy of Law
• Online Access: http://etd.uovs.ac.za//theses/available/etd-10042011-110017/restricted/

International humanitarian law (IHL) strives to improve and protect human dignity during the most tumultuous periods known to mankind. As such, every endeavour to strengthen and enhance the functioning of this branch of law must be pursued and supported. The ICRC Study on Customary International Humanitarian Law (CIHL) was precisely such an endeavour. This Study found that very many IHL rules have been subsumed by CIHL, thus applying irrespective of treaty ratification, and that the rules applicable in international armed conflicts were converging with those applicable in non-international armed conflicts. However, this Study and its attendant literature have refrained from returning to a theoretical reconsideration of the normative foundation of IHL and, by extension, CIHL. The present dissertation aims to fill this theoretical lacuna and, in the process, to re-establish natural law principles and, in particular, considerations of humanity, as the raison d'être of and motivating factor for IHL. Accordingly, the dissertation pursues the natural law principle of humanity through its practical and theoretical development, before investigating its possible application through the Martens clause, norms of ius cogens and obligations erga omnes. Since the objective is to elucidate the essential foundation of IHL to better comprehend its customary source, the interconnectedness between IHL, CIHL and natural law principles, like humanity, is emphasised. In the process, the dissertation also enters the debate regarding the necessary methodological approach for CIHL ascertainment and postulates a normative, transcendental approach in this regard. Subsequently, the ICRC Study on CIHL is evaluated through the natural law paradigm established in the dissertation, which seemingly has not yet occurred in international legal literature.