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State of Emergency and Humanitarian Law — On Article 75 of Additional Protocol I

Published online by Cambridge University Press:  13 January 2010

Géza Herczegh
Géza Herczegh*
Affiliation:
Professor at Pecs University Hungary
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Extract

In a rich and abundant literature on the subject of international humanitarian law, two trends in the interpretation of the term “humanitarian law” stand out: one takes it in its broad meaning, the other in a narrow sense. According to the definition by Jean S. Pictet, humanitarian law, in the broad interpretation, is constituted by all the international legal provisions, whether written or customary, ensuring respect for the individual and the development of his life. Humanitarian law includes two branches: the law of war and human rights. The law of war, still following Professor Pictet's definition, can be subdivided into two sections, that of The Hague, or the law of war, in the strict sense, and that of Geneva, or humanitarian law, in the narrow sense. It is often difficult to distinguish clearly between these branches of law, and especially between the law of The Hague and the law of Geneva, because of the reciprocal influence each has had on the development of the other, to the extent that some well-known experts considered the traditional difference between them out-of-date and superfluous.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 24 , Issue 242 , October 1984 , pp. 263 - 273
Copyright
Copyright © International Committee of the Red Cross 1984

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References

1 Pictet, J. S.: The Principles of International Humanitarian Law, ICRC, Geneva, 1966, p. 10.Google Scholar

2 Nahlik, S. E.: Droit dit de Genève et droit dit de La Haye: unicité ou dualité. Annuaire français du droit international, 1978, pp. 9–27.Google Scholar

3 See Article 3 common to the four 1949 Geneva Conventions and Additional Protocol II of 1977.

4 Draft of Protocols additional to the Geneva Conventions of 12 August 1949: Commentary, ICRC, Geneva, 1973, p. 81–82.Google Scholar

5 See ICRC representative's intervention in CDDH/III/SR. 43 — Official Records of the Diplomatic Conference, 1974–1977, Vol. XV, p. 25 Google Scholar; Berne 1978.

6 Ibid. CDDH/III, 305, 307–308, 310–312, 314–320.

7 Ibid. CDDH/III/SR. 43, p. 36.

8 Report of Commission III. CDDH/407/Rev. 1. — Ibid., p. 460.

9 See discussions at plenary session of 27 May 1977 (CDDH/SR. 43 and annex) Official Records, Vol. VI, p. 243–278.Google Scholar

10 Downey, W. G. Jr.: “ The Law of War and Military Necessity ” in American Journal of International Law, 1953, Vol. 47, pp. 251–262.CrossRefGoogle Scholar

11 See Article 51, para. 5, b (Protection of the civilian population) and Article 57, para. 2, a (iii) (Precautions in attack).

12 This article was adopted at the Vienna Conference by an imposing majority, 87 for and 8 against, with 12 abstentions. In spite of the delay in ratification of the Convention on the Law of Treaties, the article in question is the expression of the legal conscience of the international community.