International humanitarian law (IHL), the jus in bello as currently described, is imbued with a particular sense of its history. Sometimes, international scholars locate IHL in a long history of codes of warfare that straddled different times and cultures. At other points, these scholars emphasize the contribution of Henry Dunant, who witnessed the Battle of Solferino and was inspired to create the International Committee of the Red Cross (ICRC) and instigate the tradition of the Geneva Conventions. These histories help to inform the current understanding of the nature and purpose of IHL. Therefore, the term ‘IHL’ refers to the current understanding of the jus in bello (which is the law that regulates the conduct of armed conflict). The ICRC, which is considered to have a special relationship with this sui generis law as its guardian and promoter, describes it thus:
International humanitarian law is part of the body of international law that governs relations between states. It aims to protect persons who are not or no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities.
The above definition is regarded as commonplace one as different scholars share agreement on this. IHL is, generally speaking, that branch of public international law that seeks to moderate the conduct of armed conflict and to mitigate the suffering it generates. Scholars gloss over this general definition with the view that traditionally the term ‘IHL’ was applied to the ‘Geneva’ part of the jus in bello, which had a humanitarian focus, as opposed to the ‘Hague law’, which was more concerned with the methods of warfare. Both parts of the law are based on the humanitarian concerns and therefore overlap. Indeed, as Cherif Bassiouni says, ‘they are so intertwined and so overlapping that they can be two sides of the coin’. Thus, it is reiterated, that the term can be used to refer to all of the rules of international law that concern armed conflict, whether customary, conventional, Hague or Geneva.
IHL is the humanization of war and law. This work will, among others, consider the orthodox and contemporary history of IHL which is regarded as the law of war that has existed to limit the destruction and destructive effect of armed conflict.
HISTORICAL REVIEW
The modern principles and practice of IHL dates back to antiquity. Wars are characterized by outburst of primitive raw violence. When states cannot or will not settle their disagreements by peace, weapons are suddenly made to speak. This results in immeasurable suffering among people and in severe damage to objects. It is because of the consequences of war that efforts have since antiquity been made to find ways and means of attenuating the sufferings of those affected since it is not possible to eradicate war altogether. There are many efforts made through the ages to make war as humane as possible. Among the various tribes there were rules governing declarations of war, possibilities for arbitration, immunities for messengers from the enemy and finally peace treaties. The ancient Egyptian culture was marked by such consideration for one’s fellow beings. The seven works of True Mercy for example, instructs its readers to “feed the hungry, give water to the thirsty, cloth the naked, shelter the traveler, free the prisoner, treat the sick and bury the dead”.
Besides, a commandment dating from the second millennium declares: “You should also give food to your enemy. A guest, even an enemy must not be harmed”. Furthermore, a war between the Egyptian and Hittite empires was ended by a peace treaty in 1269 BC notable for its moderation and friendship between the two powers. Such humanitarian attitude is the hallmark of relation among different empires, religions and brotherhoods. The Judeo-Christian religion had proclaimed that all men were created in the image of God, that all were offered eternal life. The consequences of this new doctrine were numerous and incalculable, since henceforth the status of the individual was linked to the structure of the cosmos. The human being acquired a hitherto unknown dignity. If all men were brothers, to kill was crime and there would be no more slaves. This concept was so revolutionary that it shook the foundations of ancient society and contributed, at least as much as the great invasions, to bring down the tottering structures of the world. It is understandable why no religion had ever been more bitterly contested.
Christ had preached love for one another and one’s neigbour and raised this to the level of a universal principle. Human love should be a reflection of divine love, absolute and without motive. It should be extended to everyone, even to one’s enemies. Unhappily, people deformed this doctrine, seeing altruism above all as a means to assure their personal salvation as a ticket to heaven, and applying the precept only to their fellow believers.
Following the examples of some of the noble figures who represented Christianity such as Saint Francis of Assisi, Saint Charles Bonomeo and later Saint Vincent de Paul-Monks and hospitals order such as the order of the Hospital of Saint John of Jerusalem, known for a time as the military order of the Knights of Malta, attempted with great devotion to relieve suffering especially when the Black Death, as bubonic plague was known, spread terror throughout Europe. Christ himself made no pronouncement on war or how it should be conducted. The question of whether the commandment, “Thou shall not kill” in the Decalogue and the admonition “love thy enemies” in the gospel applies to war and only to private lives of believers has been heatedly debated throughout the centuries.
Saint Augustine, at the beginning of the fifth century elaborated a theory borrowed from the Romans which was designed to sooth Christian consciences. This was the well known and malignant doctrine of the “just war” which was later to be embraced by Saint Thomas Aquinas and a host of Casuists. It did nothing less than provide believers with a justification for war and all its infamy, by offering a compromise between moral ideals and political necessities. A legitimate sovereign has the power to establish and maintain order. Since the end justifies the means, acts of war carried out for the cause of the sovereign are exempt from sin. The war is declared to be a just war; it is a war desired by God; the adversary is therefore the enemy of God, and cannot possibly wage any but an unjust war. The church acknowledges the right to kill enemy captives, usually characterized as heretics, and hence the right to take them as slaves, including women and children. When the second Lateran council in 1139 A.D prohibited the use of crossbows, it specified that they could still be used against infidels, and the same rule applied to poisons. This is far removed from evangelical charity. Confessors no doubt tried to limit the horrors by imposing heavy penitence on perpetrators of the worst abuse.
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