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Observations and Discussion

From hard law to soft law

During the last twenty years and particularly over the last decade, there has been a shift in how armed conflict is regulated: from hard law to soft law.

As mentioned, armed conflict has traditionally been regulated by hard law, that is, treaties and customary international law. Starting with the adoption of the very first Geneva Convention in 1864 on protection of wounded in armies in the field, a large number of conventions have been adopted restricting means and methods of warfare (the Hague Conventions) and protecting persons who are not, or are no longer, taking part in hostilities (the Geneva Conventions).

In addition to treaty law, CIHL has played an important role in regulating armed conflict in particular in the eighteenth and nineteenth centuries before states agreed on the first Geneva and Hague Conventions in the late nineteenth century. In recent years, there has again been much focus on CIHL and how it can assist in regulating armed conflict, particularly non-international armed conflict. The first ICRC endeavour to identify CIHL was the San Remo Manual on International Law applicable to Armed Conflicts at Sea from 1994. This led to the ICRC initiating its own large-scale CIHL Study in 1996.

Soft law has traditionally played an insignificant role in regulating armed conflict. It is only during the last two decades that a large number of soft law instruments have emerged as described in section 3. This is decades behind developments in the human rights field, where a large number of soft law documents have been adopted, for example by various UN bodies including the UN General Assembly and the Human Rights Council, and by treaty bodies since the 1970s.[1] [2] [3]

The move towards government of this field via soft law instruments may cause concern. It is of utmost importance in times of armed conflict to have clear, precise, and binding instructions for the soldiers involved in the fighting. Guidelines or optional principles are not very helpful in the chaos of war.

  • [1] See e.g.: in relation to the administration of justice see, inter alia: Standard Minimum Rules onthe Treatment of Prisoners, 1977; Code of Conduct for Law Enforcement Officials, 1979; and theBasic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990. A list of humanrights soft law instruments can be found at: .
  • [2] International Conference of the International Red Cross and Red Crescent Movement, Handbookof the International Red Cross and Red Crescent Movement (14th edn, 2008), . The International Conference is the supreme deliberativebody of the International Red Cross and Red Crescent Movement. It brings together all the components of the Movement and all the states parties to the Geneva Conventions. It normally meets onceevery four years.
  • [3] 8° F Bugnion, ‘The Role of the Red Cross in the Development of International HumanitarianLaw: The International Committee of the Red Cross and the Development of InternationalHumanitarian Law’, Chicago Journal of International Law vol. 5 (Summer 2004): 1.
 
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