The laws which regulate warfare are a reflection of their time and the structure of society, its political and social order, the prevailing economic system and the dominant moral and political discourses on war and law. Transformation and adaptation, not only to new circumstances and factual demands of war and warfare but also to the perceptions and expectations of society at large, are characteristic of the law. Historically, the law of armed conflict has gone through a series of transformations from medieval customary rules to the rational balancing of military advantage and human suffering in the Hague law, and the humanitarian advocacy tradition in the Geneva law, which finally allowed the creation of international humanitarian law in 1949. The debate on human rights in armed conflict is the response of our times to the dynamics of war and law.

With its mix of charity as an expression of faith and chivalry as a reflection of class and professionalism, and the rational and calculating positivism and philanthropic activism of the nineteenth century, the law of armed conflict is informed by a strong and vibrant humanitarian legacy; yet it does not adequately reflect the cosmopolitan views of the twenty-first century. This does not question its importance as an indispensible legal framework which mitigates the consequences of armed conflicts in all their forms. The debate on human rights in armed conflict is, or should be, a debate on the interplay of human rights and humanitarian law, and not an attempt to relegate international humanitarian law from the battlefield as the result of a competition in which one legal regime trumps the other. Today, the notion of “humanitarian” in humanitarian law can be understood properly only with reference to the idea, language, law and policy of human rights as the dominant moral and legal discourse of our times. Since the adoption of the Universal Declaration of Human Rights in 1948, humanity is no longer a grace but a right.