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.