HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW INTRODUCTION: “International Humanitarian Law applicable in armed a rmed conficts” means international rules, established by treaty or custom, which are specically intended to solve humanitarian problems that arise directly rom international or non international armed conficts. For humanitarian reasons, these rules protect persons and property that are, or may be, aected by confict by limitin! confictin! parties" ri!hts to choose their methods and means o warare. #he e$pression “international humanitarian law applicable in armed confict” is oten abbreviated to International Humanitarian Law or o r Humanitarian Law. Law.1 #hou!h the military tends to preer the e$pressions “Laws o %rmed &onficts” 'L(%&) or “Laws o *ar”, these two e$pressions e$pressions should be understood as synonymous synony mous with “IHL”. (ne can ca n say that tha t the laws o war are almost as old as war itsel. +ven in ancient times, there were interestin! althou!h rudimentary customs that today would be classied as humanitarian. It is interestin! to note that the content and aim o these customs were the same or almost every civili-ation around the world. #his spontaneous !eneration o humanitarian standards, at dierent times and amon! peoples or states that possessed limited means o communication with each other, is also an important phenomenon. #his phenomenon lends credence credence to the historical historical ar!ument re!ardin! / #he necessity o havin! rules r ules that applies to armed conficts0
/ #he e$istence o a eelin! in many civili-ations that, under certain circumstances, human bein!s, riend or oe, must be protected and respected. ______________________________________
1. 1enition elaborated by the International &ommittee o the 2ed &ross and !enerally accepted. 3ource &ommentary on the %dditional 4rotocols o 5 6une 7899, I&2&, :eneva, 7859, p. ;;
Origin of Internationa H!"anitarian La#: %lthou!h scholars !enerally a!ree that the birth o modern IHL was in 75=>, with the adoption o the First :eneva &onvention, it is also clear that the rules contained in that &onvention were not entirely new. In reality, a lar!e amount o the First :eneva &onvention was derived rom e$istin! international customary law. In act, there were rules protectin! certain cate!ories o victims in armed conficts and customs concernin! the means and methods o authori-ed or prohibited combat durin! hostilities as early as 7??? @&. %lthou!h these ancient and oten very rudimentary rules were not established or humanitarian reasons, but rather or purely economical purposes, their efect was humanitarian. For e$ample / #he prohibition a!ainst poisonin! wells 'reaArmed in 7588 in #he Ha!ue) was ori!inally made in order to permit the e$ploitation o conBuered areas0 / #he rst reasons or the prohibition a!ainst Cillin! prisoners 'reaArmed and developed in the #hird :eneva &onvention o 78>8) were to sae!uard the lives o uture slaves or to acilitate the e$chan!e o prisoners. 3uch prohibitions can be ound in many dierent civili-ations, throu!hout the world and throu!hout history. For e$ample, in many parts o %rica there were specic rules re!ardin! the
commencement o hostilities between dierent peoples that correspond, to a lar!e e$tent, to the classical +uropean traditional obli!ation o declarin! war. Doreover, in a treatise called “#he %rts o the *ar”, written in E?? @&, the &hinese writer 3un #-u, e$pressed the idea that wars must be limited to military necessity, and that prisoners o war, the wounded, the sicC, and civilians should be spared. LiCewise, in the Indian subcontinent, similar rules can be ound. For e$ample, in the Code o Manu written in ?? @&, one nds rules relatin! to behavior in combat. #he &ode declared that barbed or poisoned weapons were prohibited, that wounded soldiers had to be cared or, and that surrenderin! combatants must be spared.
#hese e$amples o humanitarian customs in various civili-ations demonstrate that, even i the :eneva or Ha!ue &onventions were not universal at inception, since they were drated and adopted by lawyers and diplomats belon!in! to the +uropean &hristian culture, their sentiments are nearly universal, since the principles they contain can be ound in very dierent systems o thou!ht both +uropean and nonG+uropean. #he cultural history o +urope also provides e$amples o both barbarism and humanity. #he rst si!nicant development in respect to the law o war occurred in ?? @&, with the :reeC philosophical school called “stoicism”. #his school advocated a path towards humanity throu!h understandin! and “sympathy”, the need to understand and respect each other. @etween the 7=th and 75th centuries, in the 2enaissance and %!e o 2eason, GGGan interestin! and humanitarian practice developed in +urope. FreBuently, warriors met beore the hostilities and decided on !uidelines to be respected durin! the battle. #hese special a!reements could, or e$ample, establish the observance o an armistice two days per weeC, the obli!ation to collect the wounded, or a responsibility to release prisoners at the end o the war. %lthou!h these a!reements were concluded on an ad hoc
basis, and had a limited scope o application, such precedents played a very si!nicant role in the creation o IHL. From this historical perspective developed the documented ori!in o IHL in the midG78th &entury. p to that point, the practice o the accepted rules o warare refected the theories o philosophers, priests or Jurists with local and special a!reements. $ However, these customs were !eo!raphically limited and there were no international 'states were not yet born) or universal rules. #he rst universal treaty on Humanitarian Law is the :eneva &onvention o 75=>.
KKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKK $. % !ood e$ample o such a!reements is the “Lieber Instruction o 75=”, a &ode o conduct promul!ated by the 4resident o the nited 3tates durin! the 3 &ivil *ar. 3ee also inra, Lesson >,
#he conception o IHL can be traced to the @attle o 3olerino, a terrible confict between French and %ustrian orces that tooC place in northern Italy in 75E8. (ne witness o that carna!e, a businessman rom :eneva named Henry 1unant, was appalled not so much by the violence o that battle, but rather by the desperate and miserable situation o the wounded let on the battleelds. *ith the help o the local inhabitants, 1unant immediately decided to collect and care or the wounded. @acC in :eneva, 1unant published a short booC in 75=, A Memory o Solerino, in which he vividly depicted the horrors o the battle “When the sun came up on the twenty-th June 1!" it disclosed the most dreadul si#hts ima#ina$le% &odies o men and horses co'ered the $attleeld( corpses were strewn o'er
roads, ditches, ra'ines, thic)ets and elds*+he poor wounded men that were $ein# pic)ed up all day lon# were #hastly pale and ehausted% Some, who had $een the most $adly hurt, had a stupeed loo) as thou#h they could not #rasp what was said to them* thers were anious and ecited $y ner'ous strain and sha)en $y spasmodic trem$lin#% Some, who had #apin# wounds already $e#innin# to show inection, were almost cra.ed with suferin#% +hey $e##ed to $e put out o their misery, and writhed with aces distorted in the #rip o the death stru##le%/ 3
In his booC, 1unant not only described the battle, but tried to su!!est and publici-e possible measures to improve the ate o war victims. He presented three basic proposals desi!ned to miti!ate the suerin! o the victims o war. #o this end he proposed 7) #hat voluntary societies be established in every country which, in time o peace, would prepare themselves to serve as au$iliaries to the military medical services. ) #hat 3tates adopt an international treaty !uaranteein! le!al protection to military hospitals and medical personnel. ) #hat an international si!n o identication and protection o medical personnel and medical acilities be adopted .
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%. A Memory o Solerino , I&2&, :eneva 785=, p.>7
#hese three proposals were simple, but they have had deep and lastin! conseBuences. / #he whole system o ational 2ed &ross or 2ed &rescent 3ocieties 'o which there are today 755 around the world) stems rom the rst proposal0 / #he second proposal !ave birth to the “First :eneva &onvention” in 75=>0 / #he third proposal led to the adoption o the protective emblem o the 2ed &ross or the 2ed &rescent.
1unant"s booC enJoyed enormous success throu!hout +urope. %lthou!h it did not present entirely ori!inal ideas, the merit o the booC is in lar!e part due to the timeliness o its messa!e. %t that time, a private welare association e$isted in :eneva #he 3ociety or the 4ublic :ood. Its 4resident, :ustave Doynier, was impressed by 1unant"s booC and proposed to the members o the 3ociety that they try to carry out 1unant"s proposals. #his su!!estion was accepted and ve members o the 3ociety, Dssrs. 1unant, Doynier, 1uour, %ppia and Daunoir, created a special committee Min 75=N, the “International 3tandin! &ommittee or %id to *ounded 3oldiers.” #his committee would, 7E years later, become the International &ommittee o the 2ed &ross 'I&2&, 3ee inra, Lesson 5.). In 75=, the &ommittee convened military and medical e$perts at a conerence in :eneva. #he aim o that meetin! was to e$amine the practicability and easibility o the proposals made by 1unant. #he results o the meetin! were encoura!in!, and the members o the &ommittee persuaded the 3wiss Federal &ouncil to convene a diplomatic conerence, whose tasC would be to !ive a le!al orm to 1unant"s proposals. #o this end, a diplomatic conerence was held in 75=> in :eneva and the 7= states represented nally adopted the “:eneva &onvention o nd %u!ust 75=> or the %melioration o the &ondition o the *ounded in %rmies in the Field.” Its result was an international treaty opens to universal ratication 'i.e. an a!reement not limited to a specic re!ion or confict, with bindin! eects on the 3tates that would ormally accept it) in which states a!reed to voluntarily limit their own power in avour o the individual. For the rst time, armed confict became re!ulated by written, !eneral law .
T&e 'irt& of Mo(ern Internationa H!"anitarian La#:
#he First :eneva &onvention !ave a le!al ormat to 1unant"s proposals and established a special status or medical personnel. #he act that this conerence lasted less than 7? days provides a clear indication o the !eneral support !iven to the propositions. ( course, this ori!inal convention has been replaced by more modern and comprehensive treaties. However, it illustrates in a concise manner the central obJectives o humanitarian law treaties. #he ori!inal convention is reproduced on the ollowin! pa!e. @e!innin! in 75==, the :eneva &onvention proved its worth on the battleeld. @y 755, 75 years ater its adoption, it had been universally ratied. )
The Progressive Development of IHL (1864 – 2012)
#he Cey developments in IHL since the adoption o the 75=> :eneva &onvention. % thorou!h and detailed discussion o the postG75=> development o IHL would be beyond the scope o this correspondence course. However, the student should be aware o the three main characteristics that marCed this evolution a) #he constant enlar!ement o the cate!ories o war victims protected by humanitarian law 'military wounded0 sicC and shipwrecCed0 prisoner o war0 civilians in occupied territories0 the entire civilian population), as well as the e$pansion o the situations in which victims are protected 'international and non international armed conficts)0 b) #he re!ular updatin! and moderni-ation o the treaties to account or the realities o recent conficts. For e$ample, the rules protectin! the wounded adopted in 75=> were thus revised in 78?=, 788, 78>8, and 7899 'critics have thereore accused IHL o bein! always “one war behind reality”). KKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKK ). nder %rt o the 78=8
c) #wo separate le!al currents have, up until 7899, contributed to this evolution / #he *ene+a La#, mainly concerned with the protection o the victims o armed confictsG i%e% the noncombatants and those who no lon!er taCe part in the hostilities0 and / #he Hag!e La#, whose provisions relate to limitations and prohibitions o specic means and methods o warare. #hese two le!al currents were practically mer!ed with the adoption o the two %dditional 4rotocols o 7899. #he &onventions currently in orce have replaced the older :eneva &onventions. 3trictly speaCin!, the “Ha!ue &urrent” ori!inated in the 1eclaration o 3t 4etersbur!, which was proclaimed by a &onerence convened by %le$ander III, the #sar o 2ussia in 75=5. #he 1eclaration prohibited the use o e$plosive bullets and enunciated some basic principles relatin! to the conduct o hostilities 'see Lesson >). In 7588 the soGcalled “First 4eace &onerence” was convened in the etherlands by another #sar, icholas II, in #he Ha!ue. #hat &onerence adopted several &onventions whose !eneral !oal was to limit the evils o war. %mon! other thin!s, these &onventions prohibited / the launchin! o proJectiles rom balloons0 / the use o poisonous !ases0 / the use o dumdum bullets. #he main achievement o this &onerence was the adoption o a principle named or its initiator, F. Dartens, the le!al adviser o the 2ussian #sar. #he “Dartens &lause” says that “until a more complete code o the law o war has $een issued, the 0i#h Contractin# arties deem it epedient to declare that, in cases not included in the 2e#ulations adopted $y them, the inha$itants and the $elli#erents remain under the protection and the rule o the principles o the law o nations, as the result rom the usa#es esta$lished amon# ci'ili.ed peoples, rom the laws o humanity, and the dictates o the pu$lic conscience%/ 5
KKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKKK -. #his Dartens &lause was developed and reaArmed in subseBuent treaties0 e.!. in %rticle 7 para!raph o %dditional 4rotocol I o 7899 and preambular para!raph > o %dditional 4rotocol II o 7899.
%nother important success o the 7588 &onerence was the e$tension o the humanitarian rules rom the :eneva &onvention o 75=> to the victims o naval conficts. #his adaptation is included at the ori!in o the present 3econd :eneva &onvention. In 78?=, the &onvention o 75=> that protected the wounded and the sicC o armies in the eld was revised. %lthou!h the revision e$panded the convention to articles rom the ori!inal 7? in the 75=> version, the undamental principles remained the same. In 78?9, a second 4eace &onerence was convened in #he Ha!ue. (n this occasion, the &onventions o 7588 were revised and some new rules were introduced. %mon! the additions were a denition o combatants, rules on naval warare, rules on the ri!hts and duties o neutral powers, rules on military occupation, and rules re!ardin! 4risoners o *ar '4(*). In 78E, as a direct result o the suerin! endured durin! the First *orld *ar '787>7875), a 4rotocol prohibitin! the use o !as was adopted. %lthou!h it was adopted in :eneva, this 4rotocol clearly belon!s, accordin! to its content, to the le!al current o #he Ha!ue Law. In 788, a diplomatic &onerence was convened in :eneva by the 3wiss &onederation. #he main results o that &onerence were / #he second revision 'ater 78?=) o the 75=> &onvention. #his &onvention was a!ain modied. %mon! the new provisions, mention should be made o the rst oAcial reco!nition o the emblem o the 2ed &rescent. %lthou!h that emblem had been used as early as 759=, it was only in 788 that it was authori-ed by law0 / #he other remarCable success o the 788 &onerence was the adoption o the “&onvention relative to the treatment o 4risoners o *ar” 'also a result o the First *orld *ar). 4artially e$amined durin! the 4eace &onerence o 7588 and 78?9, this important issue was not deeply studied beore 788.
In 78>8, Just ater the 3econd *orld *ar 'note the parallel to *orld *ar I and the &onerence o 788), the our current :eneva &onventions were adopted. #he First 'protection o sicC and wounded), 3econd 'protection o shipwrecCed), and #hird &onventions 'prisoners o war), are mainly revised versions o ormer &onventions. #he Fourth &onvention, establishin! protection or the civilian population, is an entirely new amendment and constitutes the !reatest success o the 78>8 &onerence. %nother decisive improvement o the 78>8 1iplomatic conerence was the adoption o %rticle common to the our &onventions, the rst international provision applicable in situations o nonGinternational armed conficts. In 7899, ater our sessions o 1iplomatic &onerences, two additional 4rotocols to the :eneva &onventions o 78>8 were adopted. #he First 4rotocol is related to the protection o victims o international armed conficts0 the second to the protection o victims o nonGinternational armed conficts. #o some de!ree, this 3econd 4rotocol can be re!arded as an enlar!ement o %rticle common to the our :eneva &onventions. In 785?, another important convention was adopted under the auspices, the “&onvention on prohibition or restrictions on the use o conventional weapons which may be deemed to be e$cessively inJurious or to have indiscriminate eects.” #his instrument limits or prohibits the use o mines, booby traps, incendiary weapons, and non detectable ra!ments. In 788, a comprehensive &onvention prohibitin! the development, production, stocCpilin!, and use o chemical weapons was adopted. #his treaty supplements the basic prohibition contained in the 78E :eneva 4rotocol. In 788E, a new 4rotocol, an appenda!e to the 785? &onvention, was adopted. #his new instrument prohibited the use o laser weapons desi!ned to cause permanent blindness. In 7889, a &onvention prohibitin! the use, stocCpilin!, production, and transer o antipersonnel mines was si!ned in (ttawa.
In 7885, the Stat!te of t&e Internationa Cri"ina Co!rt ICC/ was adopted in 2ome. #his accomplishment was the culmination o years o eort and showed the resolve o the international community to ensure that those who commit !rave crimes do not !o unpunished. #he I&& has Jurisdiction over serious international crimes ':enocide, &rimes a!ainst Humanity, *ar crimes, and %!!ression) re!ardless o where they are committed.
In 7888, a new 4rotocol to the 78E> &onvention on cultural property was adopted. Proto0o II enables the 3tates party to that &onvention to supplement and reinorce the protection system established in 78E>. It claries the concepts o sae!uardin! and respect or cultural property0 it lays down new precautions in attacCs and a!ainst the eects o attacCs0 and institutes a system o enhanced protection or property o the !reatest importance or humanity. In ???, an otiona roto0o to t&e 1232 Con+ention on t&e rig&t4 of t&e 0&i( was adopted. #his protocol raises the minimal a!e or compulsory recruitment rom 7E to 75 and calls on 3tates to raise the minimum a!e or voluntary recruitment above 7E. It provides that armed !roups should not use children under 75 in any circumstances and calls on 3tates to criminali-e such practices. In ??, the international community adopted a treaty to help reduce the human suerin! caused by e5o4i+e re"nant4 of #ar and brin! rapid assistance to aected communities. +$plosive remnants o war are une$ploded weapons such as artillery shells, mortars, !renades, bombs, and rocCets let behind ater an armed confict. In ??E, a diplomatic conerence held in :eneva adopted a T&ir( A((itiona Proto0o to the :eneva &onventions, creatin! an additional emblem alon!side the red cross and red crescent. #he
additional emblem, Cnown as the red crystal, should provide a comprehensive and lastin! solution to the emblem Buestion. It will appear as a red rame in the shape o a sBuare on a dia!onal on a white bacC!round, and is ree rom any reli!ious, political, or other connotation. In ??5, !overnments ne!otiated and adopted the Con+ention on C!4ter M!nition4. #his important international humanitarian law treaty prohibits the use, production, stocCpilin!, and transer o cluster munitions, and reBuires 3tates to taCe specic action to ensure that these weapons claim no uture victims. It is worth notin! the support lent by the international community to the #reaties o IHL. 3ince 78> states are parties to these te$ts, the our :eneva &onventions are now amon! the most universal instruments o international law. %dditionally, 79 3tates are parties to the First 4rotocol and 7== are parties to the 3econd. 6 77777777777777777777777777777777777777777777777777
6. %n updated table showin! the states party to the main treaties is available online at httpPPwww.icrc.or!Pen!PresourcesP documentsPmiscPpartyKmainKtreaties.htm.
