!! draft !! Preface 4 introduction 9 chapter one 19

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This text is about International Humanitarian Law or – as it is also called – the “Law of Armed Conflict” or “Law of War”. It emerged from a series of lectures I delivered at The Hague Academy of International Law in Summer 2008. It deals with war and the means by which international law attempts to contain and, as it were, “humanize” organized violence. But my ambitions go beyond the battlefield. This essay explores the many complex ways in which law functions to regulate warfare, in theory and in practice. I look into treaties and other sources of international law, but I also try to step outside the boundaries of ‘black-letter law’ to deal broadly with such matters as the influence of culture in shaping the norms on war, the institutions that develop those norms and work for their universal acceptance, the networks of humanitarian actors in this area and the legal procedures in which the law of war and its various institutions are embedded. I try to place international humanitarian law in a larger context of international relations and institutions.1

War can be considered from various perspectives: political, strategic, legal, scientific, economic, artistic, etc. I shall deal with the subject as a lawyer, but I shall also include, here and there, reflections that are not, strictly speaking, legal. However, it is my intention, throughout the text, not to lose sight of the fact that it is the tragic impact of war on human beings that is our main concern.
I cannot say this more clearly than by referring to a painting reproduced on the cover of the pocket-book version of this text that has fascinated me for years: Pablo Picasso’s Guernica, which he produced for the Exposition Internationale des Arts et Techniques dans la Vie Moderne held in Paris in 1937. In this huge, mural-sized painting, Picasso expressed his shock at the brutal and wanton destruction of the Spanish town of Guernica in 1936, at the beginning of the Spanish Civil War. Guernica depicts the shapes of animals and human beings twisted by passion, hate and suffering in sombre shades of white, grey and black: it is a vehement and unforgettable symbolic representation of the torments of war, the spiral of hate and revenge and the loss of hope: Grozny the day before yesterday, internal, international and mixed armed conflicts in the Balkans yesterday, and Sudan, Somalia, Colombia, Palestine and other sites of violence today; they all are versions of the horrors rendered in Guernica. Picasso’s was a cri de coeur. His condemnation of such needless brutality did not cause the fall of General Franco’s dictatorship - which survived for more than forty years - and seems not to have affected the nature of his regime. However, his painting has remained alive in our collective memory since its creation. In the following pages, I will deal with the phenomenon of war in a more abstract way and try, from a more distant and objective perspective, to deal systematically with its various manifestations. But as we go through the following chapters, let us try not to lose sight of the elemental message conveyed by Picasso’s figures.
Thinking about war as an international lawyer can mean a number of different things. For instance, one might choose an approach that is rather “technical” or one that is “philosophical.” This means that one intends, first of all, to interpret and comment on existing law and on legal institutions by examining these matters closely and minutely; or, if one’s approach is philosophical, that one will try to discover the great lines of tradition and thought that shape the field under consideration. One might also concentrate on the law as it is or instead emphasize developing or ‘engineering’ the law to make it more responsive to the problems that are constantly emerging. Finally, one might opt for a narrative that deals with processes and events, movements and results, institutions and personalities in their inter-connectedness - a series of unending stories told in sequence; or, one might choose to proceed in an analytical manner, which is what lawyers normally do: defining terms and building categories as instruments to order and control social life. This book makes use of all these methods, but when I had to choose among them - in order to restrict the text to a manageable length - I gave preference to a broad approach, which, I hope, will not unduly tax the understanding of the reader and may, perhaps, even inspire him or her.
One point should be made clear right at the outset: it is my contention that at the beginning of the 21st century the international legal order finds itself in a phase of transition. It is shifting from the classical inter-State order to a much more diversified, richer, and global system of actors and norms. I share the view expressed by Judge A. A. Conçado Trindade in his General Course published by the Academy in 2005 that there is “an ineluctable feeling of injustice escaping from an international legal system which is unable to provide answers to the pressing needs of protection to whole segments of the population and to millions of vulnerable and defenceless human beings”2. And I share his view that, after a fragmented world order existing for a few centuries and constructed inter gentes, a new model of jus gentium will emerge3. For this reason we shall, in the following pages, return from time to time to the enlightened teachings of the founding fathers of international law who, standing at the threshold of modern international law, had - so it seems to me - a broader and a truly universal vision. In any case, this view makes our subject even more fascinating. It enables us to understand international law as an order based on universal values, but it also traces its origins and its rootedness in a “common heritage” of world cultures. These ideas are at the core of this extended essay and give it its general direction.
Writing a book or an extended essay essentially means talking to an imaginary reader. For the present purpose I have taken as my readers scholars and other colleagues, students (in the broadest sense of the word), public figures and practical-minded citizens who are curious by nature and interested in penetrating one of the oldest fields of international law, not only for its own sake but also because it might enable them to acquire a general understanding of the ways in which the law and its machinery function, in theory and in practice. I have in mind a spirited reader with imagination and a willingness to critically evaluate the law as it is, as well as the desire to improve it if that seems necessary. For it is, after all, human consciousness and a sense of human values and justice that are the bases of the law and that give force and direction to its development. But this book is also addressed to two other potential groups of readers: those who generally ignore international law and those who have a cynical contempt for it or even attack it. I hope to demonstrate to both these groups how much collective wisdom is immanent in this corpus juris, and with how much care and devotion it must be tended so that it can render its services to humanity even more effectively. To those politicians and scientists who belabour international humanitarian law with the specious argument that it is now obsolete because new types of war have largely replaced the old ones, to these people I simply say: “Do you understand modern international humanitarian law at all?” I ask myself: Do they genuinely believe that protecting women and children driven from their home in Darfur, uniting families in Sri Lanka, condemning attacks on schools and hospitals in Gaza or using cluster bombs in densely populated areas, do they believe all these were meaningless events unaccounted for or convened by an outmoded legal system? This book has an argument to make, a persuasive, I hope: to defend the need to uphold a necessary system of law and to adapt it to changing needs brought about by new realities. All these thoughts were in my mind during the writing of this text. I should also like to thank those who now have the text under their eyes for their time and for their interest.

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