04 September 2012 Written by  Bereket Bashura andDemelash Shiferaw

Historical Development and Philosophy of International Humanitarian Law

In dealing with the concept of international humanitarian law, it was stated that it is principally concerned with limiting the effects of armed conflict. From a historical and philosophical perspective also there are many scholars who have dedicated their time and efforts to trace the very incident that gave rise to the idea of controlling war. One of the most notable ones is Clausewitz, who was once a practical soldier and politician and whose works will be considered briefly herein below.

The idea of controlling of war is said to be as old as war itself. Clausewitz, when addressing the very concept of war itself, is said to have spoken with two voices: on the one hand, stigmatizing the notion of controlling war as leading to ‘logical absurdity’; on the other, actually writing about the conduct of war as if it were susceptible to control. All best contemporary commentators on Clausewitz –Aron, Galline, Paret, and  Howard himself-find it possible to explain the two voices as echoes of an ambiguous belief that war, although peculiarly difficult to control, was in principle controllable and that in many circumstances it could be controlled. The ancient idea could retain credibility because circumstances continued to support it, and so long as that was the case Clausewitz could justifiably retain his preeminence as the arch-philosopher of war. But, what if circumstances should have changed to an extent that makes the idea, at least in part, incredible? Howard, another notable writer on the control of war, himself goes on to acknowledge that post-1945 circumstances have done precisely that war is not so much the continuation of politics, but their bankruptcy.

Ambiguity and contradiction are not singular to Clausewitz,. They mark in general the whole of Europe-based philosophy of war, which is founded in the reconciliation of the principles of military necessity and humanitarian concern. Its story can be read as the record of a never-ending dialectic between an idea, which is, of course, full of contradictions, and circumstances (cultural, ideological, political, or whatever) which are sometimes conductive to it but sometimes so discouraging. And yet, they all have never despaired altogether any more than believing men have ever, even in darkest times, abandoned the hope of salvation. The idea of controlling and restraining war has survived and is alive and well in the world today. It even goes back time out of mind and is said to be even as old as war itself. Consequently, killing became differentiated, and one kind was called murder; war was perfected though it could bring an uneasy conscience. The will to brotherhood and harmony also existed but was at odds with the will to competitiveness and aggression.

Scholars narrate the historical development of international humanitarian law by dividing it into different stages. The first stage is given a name 'early plan for peaceful order'. Abhorrence of war and with it the making of plans for its abolition, prevention, or limitation is said to be an old-age aspect of man’s confused and ambivalent thinking about war; an aspect which for the most part fitted snugly within those streams of religious and political thoughts classified under the heads of utopias, pacifism, and the perfectibility of man. Indeed, it must be admitted that a particular European sub-set of plans for the establishment of a peaceful international order from Dante and Marsilius of Padua through Dubois, Cruce, Sully, Penn, Saint-Pierre, and Rousseau to Kant have often been and still often are presented as heartening precedents of some particular value, demonstrating that the twentieth century’s endeavors in this direction have more solid foundations than simply utopian aspiration. 

From all those earlier centuries of thought and planning about the control of war, there is  an important and unbroken stream whose relevance to practicability was never doubted and whose particular and unique idea was rooted in circumstances where it directly made sense: the idea of restraint and self-respect in the conduct of war. These ideas have turned up in most civilizations and societies gradually.

The second period in war controlling endeavor is the one that covers the years from the second half of the 19th and early 20th century. In this period, this optimistic reading of war achieved very wide acceptance. At the same time, the development of international organization and of public international law were being read as elements of that overall progress in condition of mankind which the majority of inhabitants of the imperial powers took for granted. And the realm of war was one of those over which progress was believed to and women active in various branches of the Peace Movement showed progress in the laying of foundations for demilitarization, disarmament, and the non-violent resolution of inter-state conflicts. For men untouched by the peace Movement and wedded still to the cult of war, showed progress in the applications of science and industry which might make wars more intense and lethal but would, they believed, make them decisive and short. This can be easily noticed from the maxim dear to such war saying ‘short and sharp wars are the most humane’. For people in between, to whom the peace people appeared impractical and the War people insensitive, progress showed most persuasively in the development of international law and ‘the public conscience’; a law and an ethic which would work together to impose humanitarian restraints and prohibitions on the conduct of war and to keep it as it is supposed to be relatively better.

So much of a war-controlling kind was proposed to be done in this historical period, and enough actually was said to have been done, for the record of those years to serve as a kind of compendium of ideas and illustrations covering all branches of our subject matter, i.e. humanitarian restraint. Obviously, the ideas for the most part were far from new but they were activated now in circumstances sufficiently like those of our own times to justify our regarding them as a stepping stone for what was to come later.

The next important event in the history of international humanitarian law is disarmament or as defined by the scholars ‘arms control’ movement. This, broadly understood, was said to be one of the principal war controlling endeavors of the 19th century. Among the most significant ones, disarmament proposals of one sort or another were put forward by Russia in 1816, 1859; and 1899; by France in 1863 and 1877; Britain in 1866, 1870, and 1890; Denmark in 1893. It has also been said that nothing like them had been herd of before. But to ones dismay, none of them got anywhere. Each of course has its own particular explanation and is grounded in the political circumstance of the time and the proposers’ sense of occasion. One may, however, dare to offer some general explanations without greatly endangering historical truth.

 The spirit of this particular period was receptive to such schemes and not through the medium of public opinion alone. Some of those schemes were floated in the normal confidentiality of top-level diplomatic discourse; whatever interests the proposers had at heart, they did not always include mass popularity or the satisfaction of pressure groups. Something in the spirit of the age was encouraging to the idea of disarmament. Besides the rampant nationalism and imperialism and pure Biblicism which excited the minds of men from the cottage to the throne, there were also certain preferences for peace and revulsions from war.

Disarmament had other attractions of a more prudential and self serving nature too. Armaments and armed forces cost money. Wars that paid for themselves had always been exceptional. By the late nineteenth century, the costs of military preparedness were becoming fearsome, and part of the public mind was interested in reducing them. Except the German government of 1899 which denied that fact and proclaimed saying their people were perfectly happy to pay for all the armaments, every government admitted that they felt the pressures of military expenditure and were aspiring the pleasure of release from them.

Alexander, who was mindful of all the problems of the time relating to disarmament, in 1816 proposed a great idea of ‘a simultaneous reduction in the armed forces of all kinds, which the powers have brought into being to preserve the safety and independence of their peoples’. Though this is said to be a wonderful proposal it was weakened by the reluctance of countries especially Russia that had not, since the return of peace, reduced their forces.

Another principal war-controlling endeavor of the nineteenth century other than disarmament, was arbitration although it was admittedly said to be stretching things a bit to include among ways of controlling war a way of avoiding it. Some elements of the peace movement favored one, some the another, but almost always, i.e. disarmament and arbitration go, hand in hand in that the former strives to reduce the ability to fight wars and to remove the pressures and inducements thereto; and the latter, to resolve international conflict by peaceful and rational means instead of by violent and uncontrollable means. Like disarmament, the idea of arbitration could be traced back ever so far to the years before Christ. Unlike disarmament, it could, however, boast of a respectable history of modest practical achievements through many ages and phases of civilization. As the well known historian Fried, cited these impressive figures cover from 1844 to 1860, 25 arbitration treaties; 1861 to 1880,54,1881 to 1900, 111. In all, 212 arbitral awards made in the course of the century, and all of them, he claimed, ‘carried out in good faith’. After 1900, the rage for arbitration only grew fiercer in the heydays of The Hague and Geneva.

But from our point of view, as from that of any serious historian of international relations, all those figures of treaties, awards and settlements add up to very little because it was either the settlement of disputes between small states, often under the admonitory eye of a regional hegemonies as was especially likely to be the case among Members of the Pan-American Union; or the only few cases which catch a realist’s eye, disputes which great powers could have got heated about but which one or another of the parties decided to cool down.

Disarmament and arbitration were both major preoccupations of The Hague Conferences of 1899 and 1907.  It is also  equally important and necessary to wheel back fifty years and say few words on the other half of the war-controlling story which also proved to be big at The Hague the laws and customs of war. These had origins as ancient and basic as the ideas of disarmament, arbitration, and so on, and over the ages achieved a firmer foothold than them in the war practices of mankind. This had not been done without sacrifices. In its historic origins, the law of war meant what law had to say about going to war in the first place as well as what it said about how to conduct a war once you were in it.

The other very important events in the history of international humanitarian law are the two Conferences held at The Hague in 1899 and 1907. Both Conferences were known as pace Conferences but it was only the 1899 one that grappled with the roots of the problem, so far as that was one of armaments, armed strengths, and an arms race running beyond control. Disarmament had a much more tenuous place on the agenda for 1907, where it was only briefly touched upon. In 1899, it was the heart of the matter, a strident call on the diplomatic resourcefulness of the participants and source of excitement to the peace movement’s observers, a vocal vanguard of whom moved into the city for the Conference’s duration, rejoicing to regard it as ‘the parliament of peace’. With their relentless lobbying and acclamation as an ever-present reminder of the interest the self-styled civilized world was focusing upon, the delegates in charge of negotiating had to move cautiously.

But for those who watched what they did rather than what they said, the direction of their movement was never in doubt; it was towards rejection of every disarmament proposal that did not promise to leave their own countries in a relatively improved position vis-a- vis the rest; which meant, of course, that since every country hoped that others would be as slow to notice its own self-interest as it was quick to notice the self-interest of others, no progress was made towards disarmament at all. The conference ended with no more than this uncontroversial declaration that ‘the limitation of military expenses, which presently weigh heavy on the world, is much to be desired for the sake of both material and moral development of humankind’ .

Though the entire endeavor to realize the taking of practical steps towards disarmament in the conference couldn’t be successful, the Hague Peace Conferences are not to be sneered at because they made the first steps down many war-controlling roads which are still being traveled on in our own times. Some of the thirteen Conventions instituted in 1907 also remain basic to our contemporary law of war, peace, and neutrality. On the other hand the Land War Regulations together with their updating of the Geneva Conventions,  were a landmark of humanitarian law. But the Conferences’ failure was almost complete in respect of their announced purposes of disarmament and arms control.

 

The next important event that comes into picture in the history of international humanitarian law is the post-world war II circumstance. The UN is a post-1945 circumstance which makes a big mark. Its predecessor, the League of Nations, also made a mark for a few years but it did not last. The control of war by one means or another was the League’s raison d’etre, and the more that raison d’etre was frustrated, the lower the League sank towards its tragic and humiliating grave. The case of the UN is quite different. Disarmament, not initially one of its main purposes, early becomes one in proportion with the evaporation of optimism as to its peace-keeping capabilities. Because too much was not hoped for too long, failure to achieve much in the war-controlling line has not been too disappointing. But apart from that, the UN just simply is there and is in many ways useful. It is the world’s central mart and exchange for the transaction of much international business. It has sunk roots, as the League never did. Although one might argue that endless talk cannot actually do much good for arms control and other means of controlling war, one can just as well argue that the important issues are better talked about too much than not talked about at all.

Not so much may be new since the World War II, as we supposed. What is unquestionably new since then, however, is the question of nuclear weapons. But there are limits to the newness of the terms of the debate which we conduct about them. What States can do with nuclear weapons is no doubt, new; but deciding whether to do it or not invokes no new ideas, runs into no new difficulty unless it relates to a raising of the alleged primacy of scientific and technical factors to a new height. 

The law of war has since then, between 1945 and 1980, gone through a second phase of ‘reaffirmation and development’; and it is much more concerned than it had ever been before with the protection of ‘civilians’.

That, in deed might be thought to have become its main business-reasonably enough, considering how the ration of civilian to military losses has risen in the wars of our century, and how frightful civilian sufferings often are-and that must be its chief attraction to the civilian mind. It offers-within the legal meaning of the technical term, ‘protection’ which is likely to encourage the civilian to think he can be protected from the horrors of war and to feel indignant when he is not.

Generally speaking, in the history of international humanitarian law, powerful lords and religious figures, wise men and warlords from all continents have since time immemorial attempted to limit the consequences of war by means of generally binding rules. But, it would make our discussion of the history of international humanitarian law incomplete if we don’t see what Henry Dunant and Francis Lieber have done for today’s universal and for the most part written international humanitarian law in the 19th century in Europe. Both of whom were marked by a traumatic experience of war and at almost the same time, but apparently without knowing of each other’s existence, made essential contributions to the concept and contents of contemporary international humanitarian law. The important contribution of these two figures is not of course inventing protection for the victims of war, rather they are known for expressing an old idea in the form adapted to the contemporary world.

Dunant and Lieber both built on an idea which is a pillar to the basic rules of humanitarian law based on what is put forward by Jean-Jacques Rousseau in The Social Contract, which appeared in 1762. The idea used as a basis for the rules on humanitarian law is that “War is in no way a relationship of man with man but a relationship between States, in which individuals are only enemies by accident, not as men, but as soldiers…”  Rousseau continued, logically, that soldiers may only be fought as long as they themselves are fighting. Once they lay down their weapons ,“they again become mere men” and hence their lives must be spared. Rousseau in this statement, thus, summed up the basic principle underlying international humanitarian law, i.e. that the purpose of a bellicose attack may never be to destroy the enemy physically. In so doing he lays the foundations for the distinction to be made between members of a fighting force, the combatants, on the one hand, and the remaining citizens of an enemy State, the civilians not participating in the conflict, on the other.

The use of force is permitted only against the combatants, since the purpose of war is to overcome enemy armed forces, not to destroy an enemy nation. And hence force may be used against individual soldiers only so long as they put up resistance. Any soldier laying down his arms or obliged to do so because of injury is no longer an enemy and may, therefore, no longer be the target of a military operation. It is in any case pointless to take revenge on a simple soldier, as he cannot be held personally responsible for the conflict.

Henry Dunanat, who is said to have built the intellectual foundation for the rebirth of international humanitarian law in the 19th century, has also made a notable contribution through his book ‘A Memory of Solferino’. In this writing, he did not dwell so much on the fact that wounded soldiers were mistreated or defenseless people killed. He was deeply shocked by the absence of any form of help for the wounded and dying. He, therefore, proposed two practical measures calling for direct action: an international agreement on the neutralization of medical personnel in the field, and the creation of a permanent organization for practical assistance to the war wounded. The first led to the adoption in 1864 of the initial Geneva Convention whereas the second saw the founding of the Red Cross.

This material was revised in 1906 on the recommendation of the ICRC and on the basis of the experience of several wars. The First World War was a serious test for the law of Geneva, and resulted in a further revision in a serious test for the law of Geneva, and resulted in a further revision in 1929. Four years after the end of the Second World War, on 12 August 1949, the first Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field was adopted..

A Convention adopted at the 1899 Hague Peace Conference placed the victims of war at sea under the protection of the law of Geneva. A revised version of the Convention was adopted at the 1907 Hague Peace Conference, and later became the present or the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of armed Forces at Sea

The Hague peace conference also examined another topic on the treatment of the prisoners of war. The 1899 and 1907 Conventions on the Laws and Customs of War on Land contained some provisions on the treatment of prisoners. On the basis of the experience of the First World War, one of the two 1929 Geneva Conventions consisted in fact in a Prisoner-of-War Code, which in turn was also developed after the Second World War. The (Third) Geneva Convention relative to the Treatment of Prisoners of War (of 12 August 1949) remains in force to this day. In addition, there is a fourth Geneva convention and two additional protocols known as protocols additional to the Geneva conventions as the instruments setting down the rules of contemporary international humanitarian law