5 Applicability issues: finding a way out of the quagmire
With the shift from the old laws of war to the modern IHL, in other words, from belligerent issues of conduct of hostilities to the central core of protection of persons, the issue of applicability of the law has become all the more important. If a proper protection of the victims of war during armed conflict is to be secured, the application of the law should be regulated at once in an objective, clear and certain manner. Complications, differing thresholds, ambiguities inviting quibbling and quixotic arguments, and the like, decisively weaken the protective aim of humanitarian law. This is all the graver since IHL consists of minimum humanitarian protections, of an absolute nature, which should never be abandoned. Unfortunately, the actual state of the law, especially in NIAC, does not live up to these expectations or necessities. In all too many cases, there is too much room for argument as to whether there is an armed conflict and whether IHL applies at all. True, with the shift from the laws of war to IHL the subjective trigger has been abandoned in favour of an objective trigger (see Chapter 1): when there is an armed conflict defined as an issue of fact, the application of the law automatically follows. In the old laws of war, the issue was obscured by the subjective trigger of the state of war (which flowed from a legal act of will by at least one belligerent) or by the recognition of belligerency (which again flowed from...
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