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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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4  The main principles of international humanitarian law

Robert Kolb

Extract

General principles of law (GPL) operate as guiding legal ideas, founding and directing the operation of a series of more particular legal rules, which appear linked to the principle or may even be considered a concretization of it. By illuminating the whole legal system with a set of generally applicable guiding legal concepts, GPL stress the centripetal or unifying forces within a legal order and throughout legal phenomena.

The generality of the principles puts them beyond the peculiarities of operation of simple rules. On the one hand, their legal content is not as narrow or defined in as precise ways as it is in rules. But at the same time, it is not as broad as in general political concepts of a given moment. Therefore, the principles can play a middle role between the lex lata and the lex ferenda, being wholly neither the one nor the other. They have the temperate degree of abstraction and concreteness to be able to be dynamic and yet filled with some specific legal meaning at the same time. Principles live on that polarity: (1) generality and flexibility on the one hand, and thus the capacity for serving in a dynamic interpretation and in substantive development of the law, especially since the class of cases they can cover is not closed; (2) anchoring in the realm of legal phenomena, on the other hand, with a definable core-meaning and a reviewable system of extensions, which gives to the principles a genetic code able...

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