1 00:00:00,170 --> 00:00:04,500 Virtually no. Good afternoon, everyone. And I'm great. 2 00:00:04,500 --> 00:00:12,500 Grateful that the discussion group has given me this opportunity to share my thoughts with you about. 3 00:00:12,500 --> 00:00:19,000 Humanity, inclusive positivism and the law of armed conflict. 4 00:00:19,000 --> 00:00:24,200 I will give you some background about this topic. 5 00:00:24,200 --> 00:00:35,520 And then present the quest, driving questions, my hypotheses and a theoretical basis for my hypothesis. 6 00:00:35,520 --> 00:00:42,010 And then a few words about how I delimit the incredibly. 7 00:00:42,010 --> 00:00:54,060 Before launching into some substantial discussions and analysis of the material, and then finally I present my tentative conclusions. 8 00:00:54,060 --> 00:01:03,660 This afternoon's topic is one of the two research themes that I recently began pursuing at the Swedish Defence University. 9 00:01:03,660 --> 00:01:13,230 It initially arose in the context of my previous work on military necessity. 10 00:01:13,230 --> 00:01:20,920 In a nutshell, it is often said that the law of armed conflict or lack. 11 00:01:20,920 --> 00:01:31,310 Accounts or is it strikes meaningful and realistic compromise between military necessity and humanity, 12 00:01:31,310 --> 00:01:41,260 and that therefore the law accounts for military necessity and humanity in the military necessity discourse. 13 00:01:41,260 --> 00:01:52,250 It is then said that because the law of armed conflict accounts for military necessity, military necessity may not be invoked. 14 00:01:52,250 --> 00:02:03,680 Denovo as a ground for justifying deviations from the unquantified rules of LOKKE. 15 00:02:03,680 --> 00:02:10,000 Now, this is an uncontroversial position. 16 00:02:10,000 --> 00:02:19,150 Also, the clay or the fact that military necessity may be invoked a vis a rule of law, OK, 17 00:02:19,150 --> 00:02:26,840 if but only if that ruling question envisions military necessity, exceptions expressly. 18 00:02:26,840 --> 00:02:32,160 And that's fine. But. 19 00:02:32,160 --> 00:02:42,050 If that is the case with military necessity. Would we not be compelled to say the same thing about humanity? 20 00:02:42,050 --> 00:02:50,630 It is often said that Locke strikes a balance between compromise between military necessity and humanity, 21 00:02:50,630 --> 00:02:57,860 and therefore Locke accounts for military necessity and humanity. 22 00:02:57,860 --> 00:03:02,910 Wouldn't it follow then that humanity may not be invoked? 23 00:03:02,910 --> 00:03:19,170 Denovo would unqualified rules of law unless those rules themselves expressly and in advance envision humanity exceptions. 24 00:03:19,170 --> 00:03:30,450 While this position may not be so, may not be so troubling when it comes to certain humanitarian desiderata, 25 00:03:30,450 --> 00:03:35,250 it will be nice if you do this or if you do that. 26 00:03:35,250 --> 00:03:42,390 But when compelling humanitarian imperatives are involved. 27 00:03:42,390 --> 00:03:57,800 Should we or would be? Stand on this conclusion that humanity is excluded as a ground for justifying deviations from unqualified rules of law. 28 00:03:57,800 --> 00:04:04,380 So there are two major situations when. 29 00:04:04,380 --> 00:04:10,240 This becomes problematic. One is where she's managing. 30 00:04:10,240 --> 00:04:20,200 Demands what law block prohibits. The law prohibits something, but humanity demands it. 31 00:04:20,200 --> 00:04:29,400 The other situation is where she manages, condemns what Lobach permits. 32 00:04:29,400 --> 00:04:38,670 What should one do when faced with such stock options? 33 00:04:38,670 --> 00:04:51,560 So there are two questions to corresponding hypotheses and two corresponding theoretical bases that I would like to present today. 34 00:04:51,560 --> 00:05:02,390 The first question is, does acting as directed by humanitarian imperatives restore its lawfulness under lock? 35 00:05:02,390 --> 00:05:13,240 All things considered, even if the Lord's positive rules prohibit acting in such a way. 36 00:05:13,240 --> 00:05:19,150 My hypothesis. Would be to say yes. 37 00:05:19,150 --> 00:05:33,040 And there are two reasons to the extent that. Assess whatever you call I mean by it, either treat negotiations or through the formation of custom. 38 00:05:33,040 --> 00:05:34,530 The. 39 00:05:34,530 --> 00:05:50,630 Lawmaking process of law and cannot resolve in advance or actual or potential conflicts between the rules that the process would eventually posit and. 40 00:05:50,630 --> 00:05:55,910 Contrary, she Manitoulin imperatives that may arise in the future. 41 00:05:55,910 --> 00:06:00,680 This is the case with any legislative legislative activity you cannot foresee and 42 00:06:00,680 --> 00:06:06,840 anticipate and account for such conflicts in the future for all circumstances. 43 00:06:06,840 --> 00:06:16,220 No, that's now. If that is true and to that extent, then. 44 00:06:16,220 --> 00:06:21,870 The humanitarian imperatives that. Escaped exclusion. 45 00:06:21,870 --> 00:06:37,400 Through this process might act as a residual free floating layer of lawfulness determination over and above positive lock. 46 00:06:37,400 --> 00:06:49,290 The theoretical foundation for the possibility that this hypothesis could be true is the necessity, thesis or action. 47 00:06:49,290 --> 00:06:57,530 It's called an F necessity component of the incorporation of thesis, which is found in inclusive legal positivism. 48 00:06:57,530 --> 00:07:02,590 I'll come back to this concept later in our discussion. 49 00:07:02,590 --> 00:07:11,420 This is it's this necessity thesis or component that could explain why this hypothesis. 50 00:07:11,420 --> 00:07:18,790 What I did, I called Humanitas Gebel. It might be true. 51 00:07:18,790 --> 00:07:25,040 The second question. Then is. 52 00:07:25,040 --> 00:07:34,640 As folks does, failing to act as directed by humanitarian imperatives impair its lawfulness under lock? 53 00:07:34,640 --> 00:07:43,290 All things considered. Even if the Lord's positive rules authorise declining to cite a declining to act in such a way. 54 00:07:43,290 --> 00:07:52,280 So if the law allows you not to act in accordance with as directed by humanitarian imperatives, does not act remain lawful? 55 00:07:52,280 --> 00:08:00,050 Or does that become unlawful because it is contrary to humanitarian imperatives? 56 00:08:00,050 --> 00:08:07,160 The hypothesis I have is. That it could be. 57 00:08:07,160 --> 00:08:14,920 Could be made unlawful because humanitarian touch-ups demand condemn such acts for the same reason. 58 00:08:14,920 --> 00:08:18,290 And to the same extent as the first hypothesis. 59 00:08:18,290 --> 00:08:28,160 And for this, we might find a theoretical foundation in sufficiency faeces for the sufficiency component of inclusive, 60 00:08:28,160 --> 00:08:41,640 legal, positive isms in cooperation with theses. And both the sufficiency and necessity for the components of this inclusive legal positives, Gizem, 61 00:08:41,640 --> 00:08:59,420 evolve around how you construe the rule of recognition as it is understood in the harsh in and Neil Harsh and jurisprudence. 62 00:08:59,420 --> 00:09:09,810 The scope of my enquiry is shaped by several considerations, and I enumerate them upfront. 63 00:09:09,810 --> 00:09:15,710 My focus is on Law Act's ability to identify its. 64 00:09:15,710 --> 00:09:25,520 Ultimate rules on its own. What I mean by that is that although it is accepted in the practise of international humanitarian 65 00:09:25,520 --> 00:09:33,200 law EC that you may have recourse to rules coming from other adjacent fields of international law, 66 00:09:33,200 --> 00:09:39,860 such as human rights law, refugee law, use a bit of an international criminal law and so on, so forth. 67 00:09:39,860 --> 00:09:52,400 What I'm interested in is law X ability to identify its own content without having to rely on the assistance of other fields. 68 00:09:52,400 --> 00:09:59,530 So whereas it is possible that most of the problems that I identify in my research 69 00:09:59,530 --> 00:10:05,270 may be resolved for practical purposes by reference to such other areas. 70 00:10:05,270 --> 00:10:14,750 That is not what I'm interested in. I'm interested in finding out whether Morlot can resolve its own problems. 71 00:10:14,750 --> 00:10:25,560 And this also means that I would be hesitant to invoke metal rules like like specialities or use Cogan's. 72 00:10:25,560 --> 00:10:34,730 In order to resolve the problems for Lolek, once again, I'm interested in Lileks own ability. 73 00:10:34,730 --> 00:10:47,340 To find its own rules without aid from such techniques. 74 00:10:47,340 --> 00:10:54,760 I am also making some potentially contentious assumptions. 75 00:10:54,760 --> 00:11:05,420 One key assumption. Entails the distinction between what I call humanitarian imperatives. 76 00:11:05,420 --> 00:11:10,220 From what I call humanitarian desiderata. 77 00:11:10,220 --> 00:11:21,230 So it's one thing for humanity to say that it's it will be good if you did this or if it be, it will be regrettable if you did that. 78 00:11:21,230 --> 00:11:27,720 That's one set of considerations. What I call the humanitarian desiderata. 79 00:11:27,720 --> 00:11:35,310 Another set is what humanity would demand or condemn. 80 00:11:35,310 --> 00:11:41,280 The distinction between these two types of considerations is in fact crucial in my discussion. 81 00:11:41,280 --> 00:11:56,200 But it is not that self-evident that the distinction is viable, let alone easier to maintain. 82 00:11:56,200 --> 00:12:04,900 I also may make the assumption that inclusive legal positivism is in fact useful, 83 00:12:04,900 --> 00:12:14,650 can be can offer some useful insight when discussing bodies of material like law. 84 00:12:14,650 --> 00:12:28,030 But once again. Then it would be interesting to ask whether inclusive legal positivism is useful in this fight at all. 85 00:12:28,030 --> 00:12:42,030 But I'm not going to get into that discussion. I'm simply taking it for granted that this jurisprudential theory is relevant and useful. 86 00:12:42,030 --> 00:12:45,760 And subsidiarity as a corollary to that assumption. 87 00:12:45,760 --> 00:12:54,740 I'm also making this up, assuming that the rule of recognition. 88 00:12:54,740 --> 00:13:03,300 Is the. I'm making an assumption that how humanitarian imperatives operate in the context 89 00:13:03,300 --> 00:13:13,720 of lax lawmaking process and rule discovery are sufficiently analogous in conter. 90 00:13:13,720 --> 00:13:19,000 An inclusive legal positivism is little of recognition here to humanitarian 91 00:13:19,000 --> 00:13:25,540 politics and public morals are treated in my discretion as sufficiently analogous. 92 00:13:25,540 --> 00:13:34,680 But that may be questionable if you reflect more on it. 93 00:13:34,680 --> 00:13:41,760 So that was a long introduction and also. 94 00:13:41,760 --> 00:13:48,700 Basically, a series of disclaimers before launching into the substantive discussion of the matter. 95 00:13:48,700 --> 00:14:02,470 Now, let us try to do that. So by way of an overview for those who are not familiar with inclusive legal positivism. 96 00:14:02,470 --> 00:14:09,350 There are a number of elementary concepts that I would like to run you, sir. 97 00:14:09,350 --> 00:14:17,150 First. There is this thing called a rule of recognition. 98 00:14:17,150 --> 00:14:24,050 According to in every legal system, according to. 99 00:14:24,050 --> 00:14:29,180 Legal positivist. So. 100 00:14:29,180 --> 00:14:43,380 Luna recognition is the widely accepted criteria set of criteria accepted by the system's low flying officials. 101 00:14:43,380 --> 00:14:52,960 When those officials seek to identify what a valid rule on this, for that matter, it's. 102 00:14:52,960 --> 00:14:59,310 And when we speak of law applying, well, officials in this context. 103 00:14:59,310 --> 00:15:03,720 Most of the time, we have officials like judges in mind. 104 00:15:03,720 --> 00:15:09,990 So the judges are presented with a case where two parties argue about the applicable rules. 105 00:15:09,990 --> 00:15:15,480 Sometimes they are diametrically opposed about India, views about what rules apply. 106 00:15:15,480 --> 00:15:33,710 So it is the judge's job to identify a rule that is to use a rule of recognition so that they can identify the valid rule in the legal system. 107 00:15:33,710 --> 00:15:44,470 So it matters who the law applying or officials are in the discussion of legal positivism. 108 00:15:44,470 --> 00:15:57,520 It also matters that whatever the rule of recognition may be, the officials would have to apply the rule of recognition more or less consistently. 109 00:15:57,520 --> 00:16:04,150 There may be some disagreements about what the rule of a condition contacts amongst different law, outlying officials. 110 00:16:04,150 --> 00:16:19,570 But there would have to be some degree of agreement amongst such low level officials as to what the rule of recognition is or contacts. 111 00:16:19,570 --> 00:16:27,770 Now, according to one School of Legal Positivism. 112 00:16:27,770 --> 00:16:39,860 It is possible, although not necessarily, that a rule of recognition may contain a criterion for the validity of a would be rule. 113 00:16:39,860 --> 00:16:48,950 That that would be rule conform with moral norms. 114 00:16:48,950 --> 00:16:52,550 So in other words, in this possible legal system, 115 00:16:52,550 --> 00:17:03,920 whatever the parliament or the lawmaking body may legislate would have a final checklist that it has to jump. 116 00:17:03,920 --> 00:17:11,390 That is, does this would be rule of law harmful with moral or moral norms? 117 00:17:11,390 --> 00:17:15,380 If the answer is yes, it becomes law. If the answer is no. 118 00:17:15,380 --> 00:17:19,510 However. That is in the rule of recognition. 119 00:17:19,510 --> 00:17:29,110 Then the rule does not become law. And whether or not the law applying officials see this final criterion. 120 00:17:29,110 --> 00:17:34,730 About the norms, conformity with morals. 121 00:17:34,730 --> 00:17:37,340 This is what makes a rule of recognition. 122 00:17:37,340 --> 00:17:49,430 If there is such a content in the recognition, this full of recognition reflects inclusive legal positivist ideals. 123 00:17:49,430 --> 00:17:56,510 There are two variations on this inclusively positivistic rule of recognition. 124 00:17:56,510 --> 00:18:05,840 One is the narrower or the middle, the less thick version of the two. 125 00:18:05,840 --> 00:18:12,050 The so-called necessity component or the necessity thesis. 126 00:18:12,050 --> 00:18:21,600 According to one legal philosopher, I'm going to quote this because then you will have a clear idea of what this necessity component is. 127 00:18:21,600 --> 00:18:31,750 And I'm quoting now, There are conceptually possible legal systems in which it is a necessary condition for a known to be legally valid, 128 00:18:31,750 --> 00:18:37,870 that its content be consistent with some set of moral norms. 129 00:18:37,870 --> 00:18:46,540 Thus, the necessity component allowed morality to serve as a constraint on promulgated law. 130 00:18:46,540 --> 00:18:56,050 It is not enough for it for a non to be valid that its component stands in the appropriate logical relation to the content of some moral norms. 131 00:18:56,050 --> 00:19:02,740 That is it. For example, the rules are just the same matter as the moral rule, moral non us. 132 00:19:02,740 --> 00:19:11,050 It has to conform with the content of the moral. That is a necessary condition for the rules that energy. 133 00:19:11,050 --> 00:19:21,820 So it's essentially it's almost like, um, public morals had a veto on the lawmaking process of a legal system, 134 00:19:21,820 --> 00:19:28,040 unless what's coming up is consistent with the moral rules. 135 00:19:28,040 --> 00:19:32,380 That rule. What what comes up does not become law. 136 00:19:32,380 --> 00:19:38,000 India. So that's the necessity thesis. 137 00:19:38,000 --> 00:19:44,540 Moving on to the sufficiently sufficiency of cases, which is the fika version of an inclusive legal positivism. 138 00:19:44,540 --> 00:19:55,260 I quote again. There are conceptually possible legal systems in which it is a sufficient condition for a norm to be legally valid, 139 00:19:55,260 --> 00:20:01,480 that it reproduces the content of some moral principle that sufficient Seacombe component 140 00:20:01,480 --> 00:20:12,350 allows then that well promulgated Norn might be legally valid in virtue of its moral content. 141 00:20:12,350 --> 00:20:23,050 So on this view. What ever happens to be consistent with the moral imperative on the matter, on. 142 00:20:23,050 --> 00:20:32,700 Become slow. Whatever the positive rules of the legal system may have to say it up about the matter. 143 00:20:32,700 --> 00:20:37,920 And if you take it even further than now that it grew, which, 144 00:20:37,920 --> 00:20:45,630 by virtue of its consistency with moral rules, would basically invalidate whatever is on the book. 145 00:20:45,630 --> 00:20:52,960 It basically replaces an otherwise valid rule of positive law. 146 00:20:52,960 --> 00:20:59,830 If that that rule of positive law is inconsistent with moral obligation, moral principles. 147 00:20:59,830 --> 00:21:07,880 So it's a sweeping claim that whatever is morally sound or consistent with moral rules. 148 00:21:07,880 --> 00:21:15,820 Basically it is law. So this is in a nutshell. 149 00:21:15,820 --> 00:21:28,550 The contours of inclusive, more legal positivism and its necessity or sufficiency versions of it. 150 00:21:28,550 --> 00:21:37,530 When we moved to the rule of recognition of the law of armed conflict. 151 00:21:37,530 --> 00:21:41,250 For starters, who are locks law? 152 00:21:41,250 --> 00:21:45,160 Well, officials. 153 00:21:45,160 --> 00:21:56,200 We have international court officials, including judges, maybe prosecutors are kind of quasi, you know, applying all officials, we might say that. 154 00:21:56,200 --> 00:22:00,910 But the judges at the international courts, including international criminal tribunals, 155 00:22:00,910 --> 00:22:08,890 would be quite problematically low lying officials whose job it will be to identify low. 156 00:22:08,890 --> 00:22:13,970 Little recognition. I would including this list also. 157 00:22:13,970 --> 00:22:19,280 State organs, especially those who speak on behalf of a state. 158 00:22:19,280 --> 00:22:24,260 Diplomatic conferences or other such appropriate occasions. 159 00:22:24,260 --> 00:22:32,540 If their statement were to counter state practise or open your uterus or both, as the case may be. 160 00:22:32,540 --> 00:22:45,150 I would also add, although somewhat more controversially, writers of official like manuals issued by states. 161 00:22:45,150 --> 00:22:48,360 And also perhaps intergovernmental fact finders, 162 00:22:48,360 --> 00:22:56,160 especially those commission mandated by the Human Human Rights Council or the General Assembly into events like Georgia, 163 00:22:56,160 --> 00:23:04,350 where people dodes fact finders would apply what they consider to be divided rules of law. 164 00:23:04,350 --> 00:23:15,100 In this movie, The Facts on the Ground. And last but not least, although not uncontroversially, perhaps also ICRC officials, 165 00:23:15,100 --> 00:23:23,890 the officials of the International Committee of the Red Cross because of the committee's special status under the law. 166 00:23:23,890 --> 00:23:25,690 And how consistent? 167 00:23:25,690 --> 00:23:40,420 So if those to the extent that those not or officials of LORAC can identify apply a rule of recognition in their efforts to discover rules, 168 00:23:40,420 --> 00:23:48,960 how consistent would the rule of recognition accepted amongst them have to be? 169 00:23:48,960 --> 00:23:58,290 One problem here is that this is primarily a matter of opportunity when rules are uncontroversial, like police, for example, the content. 170 00:23:58,290 --> 00:24:02,630 Most of the contents of the four Geneva Conventions. 171 00:24:02,630 --> 00:24:09,020 We wouldn't really need to go through an elaborate process of rule of recognition in order to find out what the rules are. 172 00:24:09,020 --> 00:24:14,630 You just go to the Geneva Conventions and find it in them. 173 00:24:14,630 --> 00:24:20,120 So there are opportunities on opportunities may not. 174 00:24:20,120 --> 00:24:35,690 Right, so ready where we can observe the kind of rule of recognition that the law of fish law planning officials use in law. 175 00:24:35,690 --> 00:24:40,120 Another hurdle here about the consistency of Law Act's rule. 176 00:24:40,120 --> 00:24:50,430 Luder recognition is to what extent? Can we say that it is consistently applied by those various local planning officials? 177 00:24:50,430 --> 00:24:55,520 These this is a question that remains quite open and contentious. 178 00:24:55,520 --> 00:25:16,520 I accept the. Then let me try to formulate for the purposes of examining material, what the necessity driven rule of recognition. 179 00:25:16,520 --> 00:25:27,960 Might look like for the law of armed conflict. Such that my first hypothesis, that is humanity, that's Gebel might well be true. 180 00:25:27,960 --> 00:25:38,010 So here is a formulation I came up with. A norm becomes a valid rule of law if, but only if. 181 00:25:38,010 --> 00:25:44,100 And only to the extent it is not inconsistent with humanitarian imperatives. 182 00:25:44,100 --> 00:25:56,850 So that will be the content of a would be LORAC rule of recognition, which exhibits the necessity for these. 183 00:25:56,850 --> 00:26:04,210 Similarly, I tried to formulate the law, no ex would. 184 00:26:04,210 --> 00:26:10,010 The sufficiency of Jesus such that my second hypothesis would be true. 185 00:26:10,010 --> 00:26:15,740 So it would look like this. A normal becomes a valid rule of law, OK, 186 00:26:15,740 --> 00:26:27,020 if it is as directed by humanitarian imperatives and as a consequence it invalidates whatever rule law otherwise contains. 187 00:26:27,020 --> 00:26:38,130 That is inconsistent with it. So. 188 00:26:38,130 --> 00:27:00,030 Do we have such a rule of recognition? Let's start with the necessity version of inclusive legal positivism as applied to law. 189 00:27:00,030 --> 00:27:10,290 There are several representative instances where this kind of concentration becomes material. 190 00:27:10,290 --> 00:27:13,330 The first one is. 191 00:27:13,330 --> 00:27:27,090 The question of whether to whether to repatriate or declined to repatriate prisoners of war against their will after the succession of our citizens. 192 00:27:27,090 --> 00:27:33,030 Here, the Unfortified Law Act rule in question is Article one. 193 00:27:33,030 --> 00:27:37,500 Eighteen of the third Geneva Conventions. The first paragraph which I read. 194 00:27:37,500 --> 00:27:47,870 Now. Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities, end quote. 195 00:27:47,870 --> 00:27:53,230 There is no codifying, there is no quantifier to this, Rick. 196 00:27:53,230 --> 00:28:06,410 Yes, it's true. In other words, the detaining power must release and repatriate all of its pure WS after the cessation of hostilities. 197 00:28:06,410 --> 00:28:16,040 With what kind of normatively a not a human type imperatives or imperative or imperatives would disprove conflict? 198 00:28:16,040 --> 00:28:29,040 Well. The humanitarian imperative might be that people ws or not to be repatriated against their will. 199 00:28:29,040 --> 00:28:40,690 When the circumstances are such that they fear prosecution, for example, back home, that Pyo WS or not to be repatriated. 200 00:28:40,690 --> 00:28:44,200 In fact, this was a problem from the Korean War onwards. 201 00:28:44,200 --> 00:28:48,850 That is even before the Geneva Conventions were, in fact adopted in 1949. 202 00:28:48,850 --> 00:28:59,290 That's some detaining powers declined to repatriate people that is in their custody against their will to places like North Korea, 203 00:28:59,290 --> 00:29:05,080 China and the Soviet Union. So. 204 00:29:05,080 --> 00:29:19,460 On its face, at least. Such practises are in breach of the unqualified requirements of Article 118 of the third Geneva Convention. 205 00:29:19,460 --> 00:29:28,760 Under north circumstances will appeal with the detaining party entitled to declined to repatriate its products. 206 00:29:28,760 --> 00:29:39,600 So. If we were not to rely on the other fields of international law, such as human rights law or refugees. 207 00:29:39,600 --> 00:29:45,900 Especially with the emergence of normal Philmont as as a as sort of a counterpoint, 208 00:29:45,900 --> 00:29:55,470 then how would not be able to explain that decline to repatriate Pyo WS against their will? 209 00:29:55,470 --> 00:30:04,290 Although on its face, contrary to the letters of the literal Article 118, the third Geneva Convention is in fact not unlawful. 210 00:30:04,290 --> 00:30:18,020 We would want like to be able to say that, wouldn't we? So the one solution would be to say this. 211 00:30:18,020 --> 00:30:27,030 The mere fact, the mere fact that a positive light rule in this in the shape of Article 118 unqualifiedly obligates post hostilities, 212 00:30:27,030 --> 00:30:37,640 P or W repatriation, all of them may not have resolved potential non conflicts with contrary humanitarian imperatives or demands. 213 00:30:37,640 --> 00:30:45,080 For example, do not repatriate pure WS against their will. 214 00:30:45,080 --> 00:30:53,320 Then it is not clear whether the unquantified ness, if you will, of Article 119. 215 00:30:53,320 --> 00:31:07,340 In relation to such imperatives was in 1949 when it was adopted or has since been really conclusive for Locke on the matter. 216 00:31:07,340 --> 00:31:16,350 Perhaps despite its categorical language, Article one, it cannot be said to have extinguished that element of humanity, 217 00:31:16,350 --> 00:31:21,710 that which demands normally patriation underserve under understands under certain circumstances. 218 00:31:21,710 --> 00:31:37,520 In 1949, Pete. When people gather in Geneva and wrote Article 118, they could not have accounted for and extinguished for posterity. 219 00:31:37,520 --> 00:31:45,270 All situations in which such genuine conflicts between the rule they are promulgating and the humanitarian imperative, 220 00:31:45,270 --> 00:31:53,300 such as do not repatriate Puel WS against their will and resolve them in advance. 221 00:31:53,300 --> 00:31:57,830 So this is something that a legal system cannot do this. 222 00:31:57,830 --> 00:32:07,850 We know so. Wouldn't it be more appropriate if we accepted a rule of recognition according to which conformity 223 00:32:07,850 --> 00:32:20,320 with humanitarian imperatives is in fact a condition before something can become a very rule of law? 224 00:32:20,320 --> 00:32:32,920 There are simit on certain examples, especially in this, in relation to the treatment of peeled onions. 225 00:32:32,920 --> 00:32:46,690 So one unqualified rule. States, it's Article 22 of the third Geneva Convention that prisoners of war may be in done only in premises located on the. 226 00:32:46,690 --> 00:32:52,500 So they must all be in terms of online without any exception. 227 00:32:52,500 --> 00:33:02,990 What? That's what the text says. But this may conflict with humanitarian imperatives when the circumstances are right, 228 00:33:02,990 --> 00:33:13,910 that appeal ws all to be interned not on land, but on, for example, aboard a naval vessel at sea. 229 00:33:13,910 --> 00:33:20,480 And this actually happened during the Falklands Malvinas conflict in the 80s where the British 230 00:33:20,480 --> 00:33:28,140 authorities decided to intone Argentinian Build-Up with is aboard British naval vessels. 231 00:33:28,140 --> 00:33:36,840 Rather than having to bring their people ws thousands and thousands of miles away. 232 00:33:36,840 --> 00:33:47,050 On some facilities or not, because Falkland is a rather remote set of islands. 233 00:33:47,050 --> 00:33:55,240 It would have the British decided in consultation with the ICC that it is more expedient and not contrary to humanitarian considerations, 234 00:33:55,240 --> 00:34:02,640 the well-being of its appeal ws that they be time aboard a naval vessel instead. 235 00:34:02,640 --> 00:34:13,540 He had to. Because in 1949, when delegates draughted wrote Article 22 of the third Geneva Convention, 236 00:34:13,540 --> 00:34:21,980 the delegates could not have anticipated and accounted for and excluded. 237 00:34:21,980 --> 00:34:28,430 Such genuine conflicts that might arise between Article 22, the unqualified, 238 00:34:28,430 --> 00:34:38,330 apparently unqualified content of Article 22 on the one hand, and contrary humanitarian demands imperatives on the other. 239 00:34:38,330 --> 00:34:48,440 So it will be more appropriate. Wouldn't it be more appropriate if we supposed that in law X rule of recognition, 240 00:34:48,440 --> 00:34:55,400 there is a final layer in the validity criterion that says that the rule must 241 00:34:55,400 --> 00:35:06,880 conform with humanitarian imperatives before he becomes a very rule of law? 242 00:35:06,880 --> 00:35:12,320 There is another now, two more. Examples. 243 00:35:12,320 --> 00:35:17,270 I would not be as an operating discussion of just two examples. 244 00:35:17,270 --> 00:35:23,990 What is? The the so-called humanitarian occupation debate. 245 00:35:23,990 --> 00:35:32,950 So in a prolonged occupation regime, wouldn't Cyprus and Palestine? 246 00:35:32,950 --> 00:35:41,320 There are rules of Lobach, both from coming from the 19 or seven Hague regulations and also from the Fourth Geneva Convention of 1949, 247 00:35:41,320 --> 00:35:46,870 according to which the occupying power may not alter the law. 248 00:35:46,870 --> 00:35:56,340 The local law implicates. And there are some exceptions allowed under the fourth Geneva Conventions, but humanitarian needs? 249 00:35:56,340 --> 00:36:02,210 Well, the humanitarian imperatives are not one of them, not amongst such exceptions. 250 00:36:02,210 --> 00:36:10,170 But the argument goes, well, if you occupy a piece of territory for half a century. 251 00:36:10,170 --> 00:36:17,310 And in the meantime, international human rights law have has evolved and the occupying power would be duty bound 252 00:36:17,310 --> 00:36:25,470 to strengthen respect for human rights for the residents of the territory you occupy. 253 00:36:25,470 --> 00:36:34,290 In line with the evolution of society, basically. So will there be a conflict between the. 254 00:36:34,290 --> 00:36:42,720 Absolute near absolute obligation to preserve local law, especially penal law in place. 255 00:36:42,720 --> 00:36:44,760 Overall, Occupy territories on the one hand, 256 00:36:44,760 --> 00:36:52,420 and the humanitarian imperative to strengthen respect for human rights in occupied territory on the other. 257 00:36:52,420 --> 00:36:54,710 So the argument is that. 258 00:36:54,710 --> 00:37:07,520 When there are such when such compelling humanitarian imperatives demands improving the conditions of well-being in occupied territory, 259 00:37:07,520 --> 00:37:19,430 the law and rules that says that the lower rule that requires the preservation of local law should not be read to mean. 260 00:37:19,430 --> 00:37:32,890 Under no circumstances may you change the law. The last example I used I want to mention is two. 261 00:37:32,890 --> 00:37:40,900 Basically, this is a very uncomfortable situation where on the one hand, you have a. 262 00:37:40,900 --> 00:37:45,300 A category, an unqualified obligation. 263 00:37:45,300 --> 00:37:55,680 For the evacuees of dangerous, endangered locations, let's say, for example, there is an ethnic cleansing going on. 264 00:37:55,680 --> 00:38:04,760 And she made Italian organisations have no choice but to evacuate endangered residents of that area. 265 00:38:04,760 --> 00:38:11,790 There are some rules that allow. Residents on humanitarian grounds. 266 00:38:11,790 --> 00:38:21,570 But then they must all be returned to their prior location, a place of residence after the cessation of hostilities in that area. 267 00:38:21,570 --> 00:38:33,090 That obligation to return is unquantified. However, we know from history that in places like Bosnia Herzegovina and in the Great Lakes and elsewhere. 268 00:38:33,090 --> 00:38:42,090 Forces returning residents to their prior place of living may endanger. 269 00:38:42,090 --> 00:38:55,590 So it would have to be forced essentially to. Will you be effectively assisting in the commission of ethnic cleansing? 270 00:38:55,590 --> 00:39:01,950 In other words, sending these people into long term or permanent displacement? 271 00:39:01,950 --> 00:39:11,820 Now, I understand that there is an interesting argument coming up to the effect that those humanitarians who find themselves aiding and abetting, 272 00:39:11,820 --> 00:39:20,770 shall we say, in ethnic cleansing for on grounds of the residents personal security. 273 00:39:20,770 --> 00:39:26,650 Might be justified under some sort of a justification, necessity, defence. 274 00:39:26,650 --> 00:39:33,070 That is their criminal defence of just typical rudeness. Just difficult arenas. 275 00:39:33,070 --> 00:39:45,090 People's defence. Thereby you will be justified in doing something that would otherwise be unlawful and criminal. 276 00:39:45,090 --> 00:39:59,950 Very briefly, although pertinently on examples that would or might point to the existence of the validity of the second hypothesis I have. 277 00:39:59,950 --> 00:40:09,020 In other words, would there be a rule of recognition in law according to which conformity with. 278 00:40:09,020 --> 00:40:25,730 Humanitarian imperatives is sufficient for the norm to become a but it rule of law, OK, whatever Lola would otherwise have to say about it. 279 00:40:25,730 --> 00:40:29,900 There is an ongoing uncertainty about whether it is unlawful, 280 00:40:29,900 --> 00:40:37,550 it is lawful or unlawful to resort to religion and trials against civilians in authorities under customary law. 281 00:40:37,550 --> 00:40:45,860 We know that it is prohibited under additional protocol one. But outside of additional protocol one, there was there is still uncertainty, 282 00:40:45,860 --> 00:40:54,230 a degree of uncertainty about whether it is now unlawful or it is still lawful. 283 00:40:54,230 --> 00:41:01,520 Of course, we have also cases coming out of the ICU, T.Y. mortage, a Rule 61 decision and a briskets trial judgement. 284 00:41:01,520 --> 00:41:12,700 Notably that purport to declare that villager reprisals are against civilians in hostilities is unlawful under customary law. 285 00:41:12,700 --> 00:41:18,240 That there is, of course, a counter argument coming from the British manual of law. 286 00:41:18,240 --> 00:41:33,100 And also, even the ICRC custommade or study that was written in 2005 seemed to accept that the law is not quite settled on the matter. 287 00:41:33,100 --> 00:41:44,240 Here, the contrast is between if we accept that she met, bitter reprisals remain lawful under customary IJA. 288 00:41:44,240 --> 00:41:55,840 That is against civilians in hostilities. Despite its evident inhumanity and if humanity, if humanity condense such reprisals. 289 00:41:55,840 --> 00:42:01,930 What how how would Locke solve the country views on this matter? 290 00:42:01,930 --> 00:42:12,950 Now, if my hypothesis is true. Because humanitarian condemnations of belligerent reprisals is what humanity? 291 00:42:12,950 --> 00:42:18,850 What is the content of the humanitarian imperative? 292 00:42:18,850 --> 00:42:24,690 Saying that it is prohibited. It's consistent with the imperative. 293 00:42:24,690 --> 00:42:36,320 Therefore. Are therefore a norm, according to which it isn't reprisals against civilians also it is under customary law, 294 00:42:36,320 --> 00:42:43,870 is no longer permitted, becomes the rule of law. 295 00:42:43,870 --> 00:42:49,630 If my hypothesis is true. 296 00:42:49,630 --> 00:43:04,510 Similarly, there is an ongoing debate between about whether force protection is lawful, even if it endangers civilian protection. 297 00:43:04,510 --> 00:43:08,890 The Majo, the group, a substantial group of like experts, 298 00:43:08,890 --> 00:43:17,170 seem to accept that force protection is a legitimate and lawful concern for the for the armed forces. 299 00:43:17,170 --> 00:43:33,580 So the belligerents are not there while they are obligated to accept some degree of risks or in self endangerment in favour of civilian protection. 300 00:43:33,580 --> 00:43:40,240 There is a special beyond which the diligence could not be duty bound to accept it. 301 00:43:40,240 --> 00:43:50,380 But those who favour civilian protection would say that no, because humanitarian imperatives condemn. 302 00:43:50,380 --> 00:44:00,130 Unduly endangering civilian populations. Not doing that amounts to acting in breach of law. 303 00:44:00,130 --> 00:44:12,160 In other words. Providing maximum civilian protection is what humanity demands, and that becomes the rule of law. 304 00:44:12,160 --> 00:44:19,860 If you accept the sufficiency of this and so on and so forth and so forth. 305 00:44:19,860 --> 00:44:25,320 Now, you may have noticed that I was. 306 00:44:25,320 --> 00:44:30,570 Much less ambiguous. Discussing the necessity thesis. 307 00:44:30,570 --> 00:44:39,660 So the repatriation or non repatriation of people WS interring peeled out is on land or at sea and so on. 308 00:44:39,660 --> 00:44:42,270 I was I found myself arguing that, yes, 309 00:44:42,270 --> 00:44:55,650 these are sufficiently clear cases where conformity with humanitarian imperatives is a condition for a norm to become and that it will look. 310 00:44:55,650 --> 00:45:06,060 Whereas when I moved to the second hypothesis of the necessity thesis, it's much less clear cut. 311 00:45:06,060 --> 00:45:12,300 It's one argument that says it will be isch or it should be considered unlawful to resort to 312 00:45:12,300 --> 00:45:18,660 military reprisals against civilians in hostilities because it is so impermissibly inhumane. 313 00:45:18,660 --> 00:45:20,970 But the debate continues. 314 00:45:20,970 --> 00:45:33,060 It is not as if the weight of authority has decided decisively shifted towards accepting that as the final legal tradition of law. 315 00:45:33,060 --> 00:45:46,860 What does all that sit about? The strength of my hypothesis. 316 00:45:46,860 --> 00:45:54,720 I am tentatively of the view that what I called Shamone cuts give kibbled. 317 00:45:54,720 --> 00:46:06,850 That is. There is a rule of recognition in law according to which conformity with humanitarian imperatives is a condition. 318 00:46:06,850 --> 00:46:18,910 A necessary condition for a known to become a valid rule of law is on a somewhat firmer ground than the sufficiency thesis. 319 00:46:18,910 --> 00:46:26,220 That is whether there is a rule of recognition in law to the effect that conformity with moral impaired, 320 00:46:26,220 --> 00:46:33,160 the humanitarian imperatives, is sufficient for a norm to become a very rule of law. 321 00:46:33,160 --> 00:46:53,140 Whatever luck would otherwise have to say about the matter. This one seems to be on much less ground, at least as far as the evidence is concerned. 322 00:46:53,140 --> 00:47:05,010 In fact. A similar type of enquiry might be undertaken not just into the role of humanitarian imperatives. 323 00:47:05,010 --> 00:47:10,520 This would be like lawmaking, an think rule, discovery. 324 00:47:10,520 --> 00:47:28,830 But for example, imperatives of shelach, whether chivalrous imperatives would play any such constraining role or substitutive role in not lawmaking. 325 00:47:28,830 --> 00:47:40,770 Or look, rule discovery, at least as the logical normative structure of the enquiry would be exactly the same. 326 00:47:40,770 --> 00:47:45,930 But of course, I have not had time to undertake that enquiry quite, quite yet. 327 00:47:45,930 --> 00:47:53,730 So maybe that's something I do know before I retire from the Swedish Defence University, if I have time left. 328 00:47:53,730 --> 00:48:06,480 Now. This is all to say that I am still very much in brainstorming phase of this research. 329 00:48:06,480 --> 00:48:13,480 And I would by way of concluding, I would very much invite. 330 00:48:13,480 --> 00:48:19,300 Your thoughts and comments and questions about the content or the structure of 331 00:48:19,300 --> 00:48:25,720 my thinking so far so that I might refine my research activities in the future. 332 00:48:25,720 --> 00:48:26,697 Thank you very much for.