Historical Origin of International Humanitarian Law

It was by the 19^th century that the evolution of International Humanitarian Law gained full force through international conventions and treaties like the Geneva Conventions of 1864 and Hague Convention and the declaration of 1899. However, the rule existing prior to the 19^th century played vital roles in the evolution of the correct body of International Humanitarian Law and some of the rules that will be considered here.

Hammurabi King of Babylon,[1] in ancient times wrote the code aimed at protecting the weak against all forms of oppression. This code of Hammurabi (as it was known) also ordered that hostages should be removed, released on the payment of ransom. Also Cyrus 1 the King of the Persians during the 17^th century BC ordered that the wounded Chaldeans were to be treated like his own wounded soldiers and not subjected to degrading or inhumane treatment.

According to ABU BAKR[2],

“the blood of women and children and old people shall not stain your victory. Do not destroy a palm tree, nor burn houses and cornfields with fire, and do not cut any fruitful tree, you must not slay any flock or herd, save for your subsistence”[3].

Abu Bakr was the first caliph to lead the Islamic faith after the death of prophet Mohammed (peace be upon him) as indicated by his statement. Another Islamic leader who showed respect for the principle of humanitarian law is Sultan Saladin in the 12^th century, during his reign at the time of crusade, he ordered that wounded persons from both armies were to be treated outside the city of Jerusalem and granted permission to the members of the Order of St. John to discharge their hospital duties.

St. Augustine’s influence on the evolution of human law is also noteworthy. He developed the theory of the “just war” and was of the opinion that Christians committed no sin engaging in a war which had a just cause and as backed by a lawful authority. This opinion was also held by St. Thomas Aquinas[4], and he argued that for a war to be just, it must be backed by a lawful authority. He further argued that war was not to be commenced without prior notice to the warring parties.

Between 1618 and 1648, the world witnessed a horrifying war which was fought in Europe under the Roman Empire. There was an unlimited belligerent practice which brought untold hardship to all the parties to the conflict[5].

During this period, a man named Hugo Grotius[6] wrote a book called “De iure belli ac pacis”. In this work, he complained of the prevailing attitude at the time were men resorted to arms for trivial or no reasons at all. In his words,

“… when arms have once been taken up, there is no longer respect for law, divine or human; it is as if in accordance with a general decree, frenzy had openly been let loosed for the committing of all crimes”.[7]

Although his works was to have a direct influence on the growth of the laws governing wars at the time, it did not achieve this purpose but still made a vital contribution in the evolution of international humanitarian law.

In 1762, Jean Jacques Rousseau[8] in his work ”Du Contrat social” pointed out that war is not between a man and another man but exists between states. Men fighting in wars do not fight as citizens but as soldiers defending their countries and once they have surrendered their arms, no person has a right to take their lives. This opinion, laid a proper foundation for the Geneva Convention dealing with Prisoners of war which provides that such captives should not be killed once they have surrendered[9]. One of the first declarations with respect to acts of war was the Paris Declaration[10] with respect to maritime law.

Although it was limited to maritime law, its importance cannot be underestimated. Its origin lies in the Crimean war when France and Great Britain were making plans for a joint military support for Turkey against Russia. Their major concern was on how to deal with the neutral states that traded with belligerents. In 1856, Declaration was signed and it prohibited the seizure of enemies or neutral property (except contraband) from enemies or neutral ships, it also stated that blockades were to be maintained by a force which was capable of preventing access to an enemy coast[11].

The Declaration also abolished privateering (where belligerents authorized) private ships to engage in hostilities at sea and prey on enemy merchant ships) which was legally recognized prior to the Declaration.

The evolution of humanitarian law took a leap in the 19^th century in 1861, which brought about one of the foremost Professor Francis Lieber, who prepared a code for the union army during the civil war in America. This was made, due to the request of the then American President Abraham Lincoln. The Lieber code (as it was then called) represented the origin of what now is known as the Hague Law.

Also, the beginning of humanitarian law was in 1864 with the first Geneva Convention; the convention for the Amelioration of the condition of the wounded in Armies in the field. Influenced by one of the bloodiest battles of the nineteenth century in Solferino, Henry Dunant[12] published UN souvenir de Solferino (A memory of solferino). Dunant proposed that nations should form relief societies to provide care for the wounded in war times. This laid down the foundation for the Geneva Conventions and led to the establishment of the international Red Cross.

On 22 August, 1864 twelve nations signed the first Geneva Convention, agreeing to guarantee neutrality to medical personnels, to expedite supplies for their use, and to adopt a special identifying emblem (which since 1870 has been the Red Cross on a white background). Developing alongside the Geneva Convention were the Hague conventions created by states in order to govern the conduct of war. The Hague conventions are various international treaties that emerged from Hague peace conferences[13]. These conference limitations on armaments, for example a prohibition on the use of air bombs and chemical warfare, and expansion of armed forces were proposed. The two conventions established a model for multilateral meetings to create international laws and subsequently influenced the information of the League of Nations in 1919.

The Geneva protocol to the Hague convention is considered an addition to the Hague convention, although not drafted in The Hague[14]. This entered into force on 8 February, 1928 and permanently banned the use of all forms of chemical and biological warfare. This was drafted following the use of mustard gas and similar agents in World War I, and fears that such warfare in the future could lead to terrible consequences. The protocol has since been amended by the Biological Weapons Convention in 1972 and the chemical weapons Convention in 1993.

The Hague Convention as opposed to Geneva Convention, which are concerned with the treatment of personnel and civilians mainly detailed the permitted conduct for war. The Geneva Convention adopted prior to 1949 was concerned with the treatment of soldiers; following the events of World War II. It was understood that a convention for the protection of civilians in wartime was also crucial[15].

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[1] 17 – 28 – 1686 BC

[2]  632 BC

[3] Wigwe C.C, Op cit, P. 12

[4] 12225 - 1274

[5] Wigwe C.C, Textbook on International Humanitarian Law, Readwide, (2010), P. 12 - 14

[6] 1583 - 1645

[7] Grotius, volume Two, 20, (para 28)

[8] 1712 - 1778

[9]. Wigwe C.C op cit, p. 13

[10] 1856

[11] Roberts and Gruelff R, Documents on the laws of war, P. 47

[12] 1862

[13] 1899 and 1907

[14] Ibid

[15] Convention for the Amelioration of the condition of the wounded in Armies in the field. Geneva, 22 August 1864. http://www.humanright.ch/en/standards/international humanitarian law/History/index.html.retrieved on 2013-05-08, from information platform humanrights.ch.