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Advanced Introduction to International Humanitarian Law

Robert Kolb

This innovative book provides a thought-provoking introduction to international humanitarian law (IHL). Robert Kolb explores the field through questions which are at times challenging and controversial in order to get to the very essence of the subject and give a fresh perspective. The result is an exposition both of the law as it stands, through its written and unwritten rules, and also of the uncertainties, gaps, controversies and practical problems which have arisen. IHL is revealed as a living tool, an ever-adapting means to an ever-remaining need of protection during times of armed conflict.
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3  The sources of international humanitarian law and their subject matter specificity

Robert Kolb

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In legal science the term “sources” is used to designate the law-creating agencies, in other words, the facts of legal production. There are certain facts or procedures by which the law is created; and there are also places where the law can be found. These facts, procedures and places whereby law is made and where law can be found are the sources of the law. They contain the legal norms applicable in the particular situations. Thus, a treaty (and the treaty-making process) is a way of producing norms of international law; it is thus a source of international law. In contrast, general principles of law are not created by the legislator, but found through an exegetic perusal of the body of legal rules, either on the plane of international law (general principles of international law) or on the plane of comparative municipal law (general principles of municipal law to be transferred analogously into the body of international law); it is also a source of international law, in other words, a place where legal rules can be found. The main sources of international law are agreements (called treaties when written), CIL and general principles of law. All three sources have a distinctive role in IHL. The purpose of this chapter is not to discuss the sources of international law from a general standpoint. It is rather to show with what particularities and idiosyncrasies these sources are applied in the context of IHL. The principles of IHL will be discussed in Chapter...

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