Humanitarian law: the controversial historical construction of a universal moral

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Humanitarian law: the controversial historical construction of a universal moral

Soraya Nour Sckell

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Soraya NOUR SCKELL is researcher at the Sophiapol, Université Paris Ouest Nanterre la Défense, and at Observare, Universidade Autónoma de Lisboa. She has made research at the Universities of Saint Louis (SLU), Nanterre, Frankfurt a.M. and Berlin (HU) and taugh at the Universities of Sao Paulo, Munich, Metz and Lille. She is the vice-president of the Association Humboldt France and received the German-French Friendship Prize. Her main areas of research are the philosophy of international law, international relations and the peace movement. Her main publications are: À Paz Perpétua de Kant. Filosofia do Direito Internacional e das Relações Internacionais (São Paulo, 2004); (ed.) The Minority Issue. Law and the Crisis of Representation (Berlin 2009); (ed. with Christian Lazzeri) Reconnaissance, identité et intégration sociale (Nanterre 2009); (ed. with Olivier Remaud) War and Peace. The role of science and art (Berlin 2010); (ed. with Damien Ehrhardt) La Fascination de la Planète. L’éthique de la diversité (Berlin, 2012); (ed. with Damien Ehrhardt) Interculturalité et Transfert (Berlin 2012).

Abstract

Humanitarian law was conceived by legal and moral normativism founded on universal principles. Despite its undeniable universal moral content, its formulations and application methods are however the result of historical conflicts. This article aims to analyze how the universality of humanitarian law is produced by highly controversial conflicts. It is necessary to overcome the antagonism between an analysis that focuses on the moral undeniable value of humanitarian law by ignoring its controversies and an analysis that focuses on social antagonism questioning the achievability of the moral and universal value of humanitarian law. For this, we must consider that humanitarian law is a construction. It appears as autonomous and independent of power relationships, as based on the rationality of morality and thus worthy of universal recognition. Yet its development is only possible when one considers the historical roots of reason. It is only through political struggle that humanitarian law is realized in history. The aim of this paper is to analyze how the universal nature of humanitarian law is produced by highly controversial conflicts. Firstly, an analysis is offered on the universal but at the same controversial character in the codification of humanitarian law, recalling controversies around the creation of the Additional Protocols of 1977 (Section 1). Next, an analysis is given on the conflictual character of organizations supporting humanitarian law, taking in account conflicts between the Red Cross and Doctors Without Borders and controversies around the ambitions to pass from an humanitarian law to a right of humanitarian intervention (Section 2). Finally, a reflection is offered on how the theories of international relations that most appropriately grasp the universal nature of humanitarian law must be complemented by a "historical sociology of the universal" that embraces the conflicting historical dimension in the construction of the universal (Section 3).

Keywords

Humanitarian law; law of war; the Geneva Conventions; Red Cross; Doctors without Borders

How to cite this article

Sckell, Soraya Nour (2012). "Humanitarian law: the controversial historical construction of a universal moral”.JANUS.NET e-journal of International Relations, Vol. 3, No. 1, Spring 2012. Accessed [online] on (date of last viewing), observare.ual.pt/janus.net/en_vol3_n1_art4

Article received on March and accepted for publication on April