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INTRODUCING
HUMANITARIAN LAW
By
Dr Neville Yeomans Psychiatrist, Barrister. Written as Net Page, June 1998. Updated
April 2014.
Integral or humanitarian law is distinct from State or
utilitarian law. Humanitarian law is concerned with the law of community, of
mediation, domestic relations, health-welfare, education and culture. Until
the Industrial Revolution it was the Canon Law administered by the
ecclesiastical courts of the Church. The confessional, forgiveness, peace and
the law of sanctuary and protection were part of humanitarian justice and
law. Utilitarian law is the law of the State, of utility, of
order, business, war, contract, and crime - the law of ruthlessness,
retribution and punishment. In the last 200 years this law has uniquely
dominated the Western world and has swallowed the humane justice of
humanitarian law. It now enforces a State monopoly of all laws. Thus the inquisitorial or enquiry technique of the
religious court is gone, the adversary of accusatory technique alone applies.
The search for truth is replaced by the clarification of issues and the
refinement of combat. Law-fare replaces warfare and the duel is with words
rather than swords. But is that enough? Utility law, the law in our State monopoly, has
worked on the basis of the reasonable man, not the humane one.
Disputes must be solved by reason, not intuition or humane cooperation. The
victor may be inhumane and morally heartless as long as he has legal reasons
- Efficacy suppressed humanity. Yet this is now changing. Fortunately, dispute
resolution by consensus and mutuality still lives on. Mediation has been
re-established and modernised in China and Scandinavia, and is again
spreading throughout the World. As discussed by Carlson and Yeomans in, 'Wither Goeth the Law : Humanity or Barbarity',
mediation occurs where a third party guides conflict resolution by mutual
agreement and cooperation, rather than accusation and imposed decision. It is private rather than public, persuasive rather
than coercive, democratic rather than autocratic. The mediator is concerned
with the common well-being and dignity of the parties, not with rewarding one
and punishing the other. Integration rather than vindication is the result. Again, human and humanity rights have growing steadily
in recent decades. Since 1863 the Red Cross has been rebuilding cogent
humanitarian law, with Conventions on the protection of the injured in
warfare, progressing later to protection of prisoners of war, civilians, and
the shipwrecked; and ultimately leading to support for the Universal
Declaration and the 1966 International Conventions on Human Rights. In 1969
the Law of Treaties introduced Cogent Law - 'a peremptory norm of
international law (jus cogens)'. These norms include humane laws that even
nations must not ignore. Again, in 1970 the International Institute of
Humanitarian Law was founded in San Remo, Italy. Thus we need respect for global norms, for humanity
rather than utility, for feeling, not just reason, for peace rather than war,
and for love rather than hate. Only in this way can we assist the rebirth of
that other half of dispute resolution that nearly died in the furnace of
Industrialism - humanitarian justice and law. Other Links: The
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