2 Origin and Development of IHL: History and Philosophy

Rohini Sen

Chapter Overview

This chapter traces the history and development of international humanitarian law. It explains the philosophical background of the principles that are now prevalent in the law and how they have developed into the codified principles, as we now know them

Learning Outcomes

• To introduce students to International Humanitarian law, its background, development and contemporary status;
• By the end of the module, students will have a clear understanding of the meaning and origin of International Humanitarian Law.

Introduction

The Law of Armed Conflict (LOAC) has two important elements. The first part, jus ad bellum, regulates the use of force. The legitimacy and justification of using force against another sovereign are covered by principles of jus ad bellum. International Humanitarian Law (IHL) or ‘jus in bello’ are principles of international law, which seek to limit the impacts of violence caused during an armed conflict, i.e. after force is used. The focus of IHL is restricted to only conduct of states during an armed conflict and does not regulate when a State may use force. It can be understood in a very simple way. Jus ad bellum answers the question of when force can be used. While jus in bello deals answers how force can be used.

There two principal branches of IHL that can be described as “Hague Law,” involving the regulation of weaponry and the selection of military targets, and “Geneva Law,” covering the treatment of POWs, detainees, civilians, and humanitarian aid workers.

With a century worth of expansion, IHL has developed into a comprehensive body of rules, which work to ensure that damage of an armed conflict is least possible, especially on the innocent civilians. Even though IHL was formally introduced in late early 1860’s, its rules can be found ingrained in ancient civilisations and religions. This chapter will trace back the history of IHL to explain how it had reached a point where it stands now.

Philosophical Origin of IHL

History of IHL can be traced far back ancient time when war was permissible. Traditional forms of humanitarian principles were governed solely by humanity. A vague sense of morality guided the combatants about behaviour between themselves and towards the innocent non-combatants.

Principles of IHL were particularly visible in ancient Indian and Greek culture, while they had also made their space in the rising religions such as Islam and Christianity.

The war of ‘Mahabharata’ can be seen as one of the earliest sources of principles of humanitarian law. One of the crucial principles that originated from the Mahabharata was that of ‘Dharma Yuddha’ or the principle of righteous war. Many practices such as stopping hostilities at sunset or not attacking the unarmed, which were discussed in Mahabharata, are still prevalent in the contemporary humanitarian law. Other instances from within the discussion of the text of the war set the stage for IHL doctrines to step in. For instance, Arjuna’s decision to refrain from using a ultra-destructive weapon in conventional war would later be formulated in Prohibition of use of certain weapons in a war. Indian Manusmriti and Rig Veda law down elaborate principles of war including the prohibition of concealed, poisoned or barbed weapons; engagement in an honest duel; different treatment for unmounted or innocent people who do not wish to engage in battle; and humane treatment of the combat prisoners and civilians in conquered territories.

Greek Goddess Athena was considered a protectress who could engage in civilised combat for just causes. References made to Athena compare her wisdom and thoughtfulness to Ares who was a bloodthirsty unrestrained god. Islam was not oblivious to humanitarian principles either. It had requirements such as women, old and children ought not be killed. There are texts that support the theory that Islam also disallowed destruction of houses, fields or livestock.

With the Renaissance, the notion of civilised or civilisation entered the belief system of people. One of the major contributors to IHL in Europe was the church’s just war doctrine, which also encompassed the justice of resorting to force. The motivation for restraint in behaviour during war stemmed from notions of what was considered to be honourable and, in the nineteenth century in particular, what was perceived as civilized. For a combatant to attack an unarmed person would cause a loss of ‘honor’ and respect. There were efforts made in spirit of humanity including treatment of sick soldiers and liberation of prisoners following the religious sentiments.

This backing made the principles more welcome and acceptable as compared to the other domains of international law. This is probably why, when theorists started discussing this matter, they received majority appreciation for introducing the much-needed principles.

Jean- Jacques Rousseau in his social contract theory (1762) reflected on the abysmal conditions of prisoners of war and the wounded. He argued that the prisoners or the wounded should not be further exposed to reciprocal attacks of belligerents. Rousseau’s theory could be considered one of the first attempts to pen down the humanitarian principles that existed in the society. During the 1800’s, many individuals recognised the importance of a formal institution for humanitarian principles and actively started applying them. However, these aspirations of those noble spirits did not materialised until 1860’s when until Henry Dunant gave the most effective impulse for a new organisation, with his most celebrated contribution, i.e. Un souvenir de Solferino in 1862.

Codification of International Humanitarian Law

IHL regime was first formalised at Geneva Convention 1863 with the establishment of Red Cross Committee. This sudden interest in humanitarian law was a result of ferocious battle of Solferino in 1859, which provoked people like Henry Dunant and many others like him to fight for humanitarian law and humane treatment of combatants and non-combatants.

5.1 Battle of Solferino and Henry Dunant

Battle of Solferino is marked as one of the most crucial battles in history between the French, allied to Sardinians and the Austrian troops. By the end of the day more than 6000 dead and 40,000 wounded soldiers were scattered on the field. The situation seemed dire for the French and Sardinians as they had very few doctors and no means of transportation. A small portion of the wounded made their way to a nearby village and found aid from Henry Dunant and other locals.

Disturbed by the entire experience, Henry Dunant wrote an account of the war in his popular work “A Memory of Solferino” (1862) where he described/penned down the nightmare he went through. Dunant’s contribution managed to stir the conscience of the world and led to the conference in Geneva, which laid the foundations of the international organisation that is now called International Committee of Red Cross. In his book, Dunant proposed two ideas for alleviating the suffering of soldiers, viz., creation of relief society to supplement army medical services, and a legal basis that would oblige armies to take care of all wounded soldiers irrespective of their side.

5.2 St. Petersburg Declaration, Liber Code, and the first Geneva Convention

Where on the one hand, humanitarian movement in Europe was gaining support; the United States was caught in the midst of a civil war. During the American Civil War, President Lincoln issued a code to the military, which got popular as the Lieber Code (Named after Dr. Francis Lieber who drafted the code). The Lieber Code was a set of instructions laid down for the US forces, which represented an accurate picture of the humanitarian principles and custom existing at that time. Some of the key features of the Lieber Code involved principles of humanity and military necessity at the time of war.

However, Geneva Convention of 1864 is recognised as the premier formal codification of the International Humanitarian Law. The first Geneva Convention had ten articles and broadly dealt with the conditions of the wounded in armies in the field. It declared ambulances, military hospitals, including personnel serving in them and accommodating the wounded and sick as neutral parties. The convention allowed for these parties to carry on their functions even at time of war along with protection to inhabitants who helped the wounded combatants. Additionally it required the wounded or sick combatants to be collected and cared for irrespective of their nation. It ensured that the damage and loss of life were not further aggravated by miseries of the wounded. Moreover, it managed to address all the concerns that Henry Dunant had raised with respect to treatment of wounded soldiers. Geneva Convention, 1864 also came up with uniform flag for and armlet bearing a red cross on a white ground. The 1864 Convention marked as the origin of the formal humanitarian principles, which were built up upon by the international community in the following century.

Another important instrument that developed parallel to the first Geneva Convention and Liber code was the St. Petersburg Declaration. Deviating from the protection of targets of war, St. Petersburg Declaration focused on the weapons that can be used for war. Adopted in 1868, it was the first formal agreement to prohibit the use of certain kinds of weapons. The Declaration, which was provoked by the invention of exploding bullets, confirmed the customary rule according to which the use of arms, projectiles and material of a nature to cause unnecessary suffering is prohibited. It defined winning the war as the only justified military objective.

The Declaration of Saint Petersburg prompted the adoption of further declarations of a similar nature at the two Hague Peace Conferences of 1899 and 1907. The Hague Declarations relating to the discharge of projectiles and explosives from balloons, the use of asphyxiating gases and the use of expanding bullets refer in their preambles to the Declaration of Saint Petersburg.

6. Development of IHL principles thereon

6.1. Early Years of IHL: The Hague Conventions

The first Hague Peace Convention was convened in 1899 on the initiative of Tsar Nicholas II with the objective of spreading peace and limiting development of armaments. Though it failed to achieve its primary objective of reduction of armaments, it did manage to usher the era of arms control. The first Hague conference saw three conventions viz., The Convention for the Pacific Settlement of International Disputes, of July 29, 1899; The Convention respective to the Laws and Customs of War on Land, of July 29, 1899; and The Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, of July 29, 1899 formalized. Hague conference of 1907 resulted in 13 new conventions with regard to similar subject matter. Some of the major principles that could be observed in The Hague conventions were:

• Prohibition on targets: The Hague Convention on laws and customs of War on Land established defined rules to limit the kinds of targets of attack and the weapons that could be used. For example, attacks on cultural property or undefended towns were strictly prohibited.
• Prohibition on Weapons: Hague regulations banned use of arms, material or projectiles designed to cause unnecessary suffering. Some of the explicit examples of the weapons banned at that time included dum-dum bullets, irregularly shaped projectiles or those that would inflame a wound.
• Humane Treatment and Rights of Prisoners of War: Where the Geneva convention 1864 had laid down the principles for treatment of wounded and sick; the Hague regulations brought in substantial rules regarding humane treatment and rights of Prisoners of War.
• Humane Treatment for civilians and non-combatants: Special status for neutral parties, civilians and non-combatants was reemphasised by the Hague conventions with regards to law of war.

The Hague conventions did not have the quantitative support in order to be successful and were followed by the disastrous World Wars. The events of the world wars displayed complete disregard of the Hague principles, making them redundant. However, after the disastrous effects witnessed by the first war, The Hague rules gained more attention. By 1939 these rules gained recognition from all civilised nations and were regarded as declaratory of the existing customary laws.

6.2. International Humanitarian Law and World Wars

Humanitarian principles developed over a period were put to a test during the World Wars. In 1914, when the first war started, ICRC was already working for prisoners of wars along with focus on civilians and healthcare. Even though the Hague regulations had rules protecting civilians in occupied territories, civilians had to bear the burden of the wars from both Western and Eastern fronts. Both the fronts ignored most of the humanitarian principles laid down in Geneva and The Hague Conventions. Another concern that had not been anticipated before the war was the widespread use of poison gases during the war.

As a result of World War I there were more diplomatic attempts to find a solution. In 1925, the Geneva Protocol for ‘Prohibition of the use in war of asphyxiating, poisonous or other gases and of bacteriological methods of warfare’ was introduced. Soon after, diplomats met again in 1929 to come up with better-defined rules of with respect to the Treatment of Prisoners of War, and Wounded and Sick.

But before the effects of the first war could sink in, World War II, which was even more deadly and deadly, broke out. Heavy civilian casualties in the war resulting from bombardment and genocide policies, deportation and mass murder, as well as taking hostages; directed the attention of the international community on the need for civilian protection.

The aftermath of the World Wars shook the conscience of the world population. The need to evaluate and rethink war experience was a concern shared by all nations. This set the stage for the Geneva Conventions of 1949, which accumulated principles of humanitarian law that existed and created a new body of conventions that were accepted by almost all the nations.

6.3. Geneva Convention 1949 and Additional Protocols

The 1949 Geneva conference resulted in four new revised conventions comprising of 429 articles.

These four conventions included:

• Convention (I) for the Amelioration of Conditions of Wounded and Sick in Armed Forces in the Field;
• Convention (II) for the Amelioration of Conditions of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;
• Convention (III) relative to Treatment of Prisoners of War; and
• Convention (IV) relative to the Protection of Civilian Persons in Time of War

In 1977 the international community came up with two additional protocols, which dealt with the protection of victims of international and non-international armed conflicts, in order to supplement the Geneva Conventions.

Even though each of the conventions dealt with specific subject matter, there were certain general principles of humanity common to all of them. For instance, all of them have identical provisions with regards to the prohibition on of murder, torture, mutilation, and outrages upon personal dignity, taking hostages, pillages and inhumane treatment.

The Unanimous acceptance of Geneva Convention 1949 resulted in a strengthened mechanism for humanitarian principles, which had a binding force on all countries.

4. Contemporary International Humanitarian Law

Even though Geneva Conventions of 1949 served as the beginning of the contemporary International Humanitarian Law, it certainly did not mark the end of it. IHL principles have been in a state of constant evolution even after the conventions have taken place. Various treaties have been negotiated by the states to ensure that the humanitarian principles are wide enough to accommodate the technological development otherwise taking place.

A perfect instance of ideology can be seen in the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, 1980 along with its five additional protocols, which lay down regulations around the following kind of weapons:

Protocol I: Non-Detectable Fragments

Protocol II: Mines, Booby-traps, other devices

Protocol III: Incendiary Weapons

Protocol IV: Blinding Laser Weapons

Protocol V: Explosive Remnants of War

On a separate context, Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction, 1993 attempts to tackle the chemical weapons. To ensure enforceability and protection of civilians, Crimes such as Genocide, Crimes against humanity and War crimes have been criminalised and form a crucial part of the Rome Statute of the International Criminal Court. The legal protection for children in armed conflict has received attention because of enraging figures of children involved in armed conflicts. To tackle their participation in hostilities, Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict was adopted in 2000.

Humanitarian principles remain an ever-evolving concept and discussions on new conventions are constantly in discussion. With states taking responsibility to accept these principles, new developments and move towards a stronger regime are quite prominent.

However, contemporary IHL suffers from certain major challenges. Modern period hardly experiences any war between countries. With the emergence of terrorism and non-state actors, a new form of warfare has emerged. This warfare can be best described by asymmetry. Those who are causing most suffering in the present scenario do not abide by the principles of IHL. This causes an asymmetry of morality. The challenges due to this new asymmetric warfare have caused many scholars to revisit the existing principles of IHL.

5. Summary

In this module, we learnt the meaning and scope of International Humanitarian Law. We traced the origin of IHL back to their philosophical existence in various religions and discussed the transformation of vague principles into codified law. Further, we briefly learnt about the basics of the two primary regimes of IHL viz., The Hague and the Geneva laws. We discussed the implications of the World wars on the principles and development of the regime thereafter. Towards the end of the module, we discussed the further development of IHL to the current position and the emerging challenges it faces due to changing trends of warfare.

Reference

• Louise Doswald-Beck & Sylvain Vité, “International Humanitarian Law and Human Rights Law”, 30-04-1993 Article, International Review of the Red Cross, No. 293, https://www.icrc.org/eng/resources/documents/misc/57jmrt.htm
• Helen Durham, International Humanitarian Law and The Gods of War: The Story of Athena Versus Ares, http://www.law.unimelb.edu.au/files/dmfile/downloadeb171.pdf
• Instructions for the Government of Armies of the United States in the Field (Lieber Code) 24 April 1863, International Committee for Red Cross, https://www.icrc.org/applic/ihl/ihl.nsf/0/a25aa5871a04919bc12563cd002d65c5?OpenDocum ent
• The ICRC and the Geneva Convention (1863-1864), International Committee for Red Cross, https://www.icrc.org/eng/resources/documents/misc/57jnvt.htm
• Summary Of The Geneva Conventions Of 12 August 1949 And Their Additional Protocols, International Committee of the Red Cross, https://www.icrc.org/eng/assets/files/publications/icrc-002-0368.pdf