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The intent to protect individuals from the consequences of war has existed since the dawn of time. Protective rules can be found in Antiquity, the Middle Ages and in Modern Times. The instruments of the 19th and 20th centuries were not the first treaties on this issue. Humanitarian ideals and concepts formalized in legal instruments transcend various cultural traditions and make the rules and principles of international humanitarian law timeless.
Antiquity
Many principles promoted by IHL were found in African cultures of the era. Essentially, the protection of women, children and elders had to be guaranteed during armed conflict. The ban on weapons that would inflict needless suffering on the enemy had to be respected. African values required that prisoners captured during the war were to be treated as their own people—they were to be provided with food, care and shelter.
The first rules written about armed conflicts can be found in the Hammourabi Code, which dates back 4,000 years. Hammourabi, King of Babylon, prescribed these laws so that the strong could not oppress the weak.
In ancient India, the Mahâbhârata and the law of Manu incorporated rules that required compassion toward unarmed or injured adversaries. Thus, the Mahâbhârata ordered that soldiers made prisoners be treated as the captors' own children and cared for, and prohibited the use of weapons that created needless suffering for the enemy, thus reflecting the African traditions.
Later, the code of Japanese soldiers in feudal times imposed rules of humanity toward the weak and the conquered. Total annihilation of the enemy was not the ultimate goal of attacks.
The Middle Ages
Knighthood, Islam and the crusades made their contribution to IHL.
Knights' principles included loyalty, honour and dignity in their method of fighting. Thus, the behaviour of knights in combat involved ideas that brought to mind a certain humanity.
Later, Islam set out many humanitarian rules in its precepts. The need to respect justice and equality was the fundamental principle of its humanitarian thinking. The Koran thus defended the integrity of human beings by prohibiting torture, mutilation and degrading treatment.
Finally, at the time of the crusades, the Orders of St. John and Malta were created to care for both injured soldiers and pilgrims. Respect for the adversary was thus advocated.
Modern Times
The first draft of an international treaty on the subject took shape in the 18 th century. Dutch lawyer and diplomat Grotius developed the first treaty aimed at protecting the victims of armed conflicts called " De jure belli ac pacis " (the law of war and peace). It states that violence not required for victory was in no way justifiable, thus establishing that civilians and soldiers enjoy protection and must always be spared. These rules would become the most solid bases of the law of war.
However, it was in 1762 that the basic principle of the future Geneva Conventions was born. Essentially, Jean-Jacques Rousseau's Social Contract outlined the principle based on which unarmed soldiers simply became men over whom no one any longer held the right of life or death.
In 1785, humanitarian law made significant advances when Frederick the Great and Benjamin Franklin signed the “Treaty of Friendship and Peace.” This treaty provided what would become customary law whereby the sick, injured, prisoners and civilians must be spared from violence.
In 1862, A Memory of Solferino by Henry Dunant was published, which told of the horrors he witnessed during the Napoleonic wars. Aware that war could not be avoided, especially in the political context of the era, he suggested "humanizing" war by improving the condition of victims. Therefore, in 1863, Dunant and four other individuals created the International Committee of the Red Cross, an organization that would establish itself as the guardian of IHL.
In this same year, during the American Civil War, Abraham Lincoln asked lawyer Francis Lieber to regulate the use of force in achieving established military objectives. This work became know as the Lieber Code. The Code was the first attempt to codify the laws and customs of war. The very next year, in 1864, the first international-scale treaty was born: the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field . This convention sets out in specific terms the willingness to limit as much as possible human suffering in war times.
Between 1899 and 1949, the other treaties were drafted, generally undergoing major changes. However, following the atrocities of World War II, the Geneva Conventions were adopted in 1949.
To expand existing protection, especially as a result of wars of national liberation, the two Additional Protocols were adopted in 1977, thus enabling IHL to cover a type of conflict that was unheard of in 1949. Many other IHL treaties have been adopted since then. |
