Origin and development of international humanitarian law

International Humanitarian Law is a part of public international law which mainly concerns itself with rules and regulations during the armed conflict. The main objective of International Humanitarian Law is to protect people who are not a part of hostilities of war and also with the warfare techniques employed by the state who are at war.

The history of human civilization is replete with wars of all nature, local, regional, national, and international. Same is true of the brutalities committed during these wars. Wars are the blots to humanity and involve brutal and arbitrary violence. Therefore, several attempts have been made at all levels to make some rules of conduct even during warfare.

 Those attempts have been instrumental in shaping the modern laws of warfare. Law of warfare is given the new nomenclature, “ international humanitarian law” because in our times, wars have been declared illegal under international law. Now-a-days, there are many examples of armed conflicts resorted to by nations which are not in the nature of war.

International Humanitarian Law can be defined as a branch of international law containing a set of rules which seek for humanitarian reasons, to limit the effect of armed conflicts. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. Though it is very difficult to define what international humanitarian law exactly is, this definition has been accepted by many nations and jurists.

The first part of the definition emphasizes the close linkage of international humanitarian law with international law. It is not separate from international law. International law includes international humanitarian law.

“International Humanitarian Law applicable in armed conflicts” means international rules, established by treaty or custom, which are specifically intended to solve humanitarian problems that arise directly from international or non-international armed conflicts. For humanitarian reasons, these rules protect persons and property that are, or may be, affected by conflict by limiting conflicting parties’ rights to choose their methods and means of warfare.

Origin of international humanitarian law

There is no concrete documentary evidence with regard to when and where International Humanitarian Law developed and it is difficult to name the creator of International Humanitarian Law. Nevertheless, the history of International Humanitarian Law revolves around the 19th Century when codification of laws of war began which gave birth to the modern International Humanitarian Law.

The Battle of Solferino of 1858 is regarded as the crucial movement in the history of modern International Humanitarian Law which later led to the evolution of First Geneva Convention, 1864.

Henry Dunant was influenced by the Battle of Solferino and was horrified by the suffering of injured soldiers and in 1862 published UN Souvenir de Solferino (A memory of Solferino) wherein he proposed that the nation should form relief society to provide medical care for wounded soldiers in wartime. This laid down the foundation for Geneva Conventions which lead to the establishment of the International Committee of Red Cross..

On 22nd August 1864, 12 nations cake together and signed the First Geneva Convention agreeing to guarantee medical aid with no discrimination and to adopt a special identifying emblem i.e. the Red Cross on a white background.

The Geneva Convention reflected ICRC’s own concerns and focused on the needs of war victims but towards the end of the 19th century some countries introduced international rules known as the Hague Conventions governing the way wars were conducted.

Towards the end of World War 1, ICRC appealed for an end to use of chemical warfare which led to the adoption of the treaty of 1925. (Protocol for the prohibition of the use in war of Asphyxiating, Poisonous or Other Gases, and of Bacterial Methods of Warfare).

Further, ICRC’s intensive efforts expanded protection to war victims that resulted in new Geneva Conventions that protected Prisoners of War in 1929.

Laws of war are as old as war itself. Even in ancient times there were interesting rudimentary customs that is presently classified as humanitarian. There are two common ways that international lawyers think about the history of international humanitarian law. One is the story of the humanization of war and law; the second is a story of imperialism and oppression.

The orthodox history of international humanitarian law tells the following story. Laws of war have always existed to limit the destruction of war. The ancients, the knights of the middle ages, the jurists of the early modern period all testify to the record of this concern. Nor is it just a Western concern. Other cultures, such as China, Japan, India and the Islamic world, have their own traditions of rules of warfare. Yet, despite this universal concern, the attempt to limit war has suffered various setbacks. It was not until the 19th century that a movement to codify the laws of war began and modern international humanitarian law was born.

International lawyers refer to the Lieber Code, written to govern the conduct of Union forces during the American Civil War, as the first example of the codification of the laws of war, but they regard the Battle of Solferino in 1859 as the crucial moment in the history of modern humanitarian law. Henry Dunant, a Swiss citizen, happened to be present. Horrified by the suffering of injured soldiers, he was inspired to found the Red Cross movement, which was to become ‘a promoter and custodian of the humanitarian idea and the primary initiation for its transition into international humanitarian law’.  Dunant also instigated the adoption in 1864 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.  This Convention marks the start of the Geneva tradition of humanitarian law. The orthodox history goes on to list the following inventory of humanitarian instruments: the 1907 Hague Convention, the 1949 Geneva Conventions and the 1977 Additional Protocols.

This orthodox narrative tends to conflate a long history of varied approaches to the laws of war with modern international humanitarian law. Although it is acknowledged that earlier approaches to the laws of war were not identical with modern international humanitarian law, their shared ‘humanitarian’ values are stressed and points of continuity are emphasized.  And while it is sometimes stated that the term international humanitarian law is new, it is not usual for a writer to state exactly how new it is or when and why the term started to be used. This confusion is compounded as the two terms, ‘international humanitarian law’ and ‘laws of war’, are often used interchangeably in the historical account – thereby further obscuring any point of difference between them. In this way, the orthodox narrative is able to juxtapose the image of a long tradition of humanitarian law with the achievements of the modern age. The result is that the values of international humanitarian law appear universal and a historical, while their modern codification is laudable.

There is another story about international humanitarian law, which describes it not as a history of compassion and civilization but, rather, as a history of oppression and imperialism. Drawing on post-colonial and critical methodologies, lawyers describe a history in which military or Western needs have consistently trumped humane values, exposing civilians to the violence of war and legitimizing their suffering. In these historical accounts, the catalogue of treaties is a litany of compromise and pragmatism. The 1868 Declaration of Saint Petersburg was a pointless failure. The 1907 Hague Conventions left military necessity unchallenged as the dominant value of the laws of war and civilians more vulnerable than ever to the scourge of combat. The Nuremberg Tribunal actually helped legitimate unrestrained conduct in war by refusing to convict, or even prosecute, based on violations of the laws of war.  Even the contemporary values of humanitarianism have been called into question, with David Kennedy identifying its ability to conceal problems and misdirect attention.

Both this negative account, and the more common orthodox history it reacts to, place the contemporary understanding of international humanitarian law in a long continuum with other codes of warfare. They extend international humanitarian law into the past. They elide its specificity and conceal its creation by placing it in a continuum with other codes of warfare. By deploying or relying on these histories, lawyers can suggest the longevity of international humanitarian law and bolster any claim they might wish to make about the law. For example, supporters of international humanitarian law will find it easier to claim that a principle of international humanitarian law is well established, unarguable or obvious if it is considered part of a long tradition. An established history also makes claims to the moral validity, authority and status of the field itself harder to refute. Alternatively, for those who wish to attack or change international humanitarian law, placing it in a long history makes it easier to draw connections with a tradition of oppression. In this way, histories of international humanitarian law not only reflect but also help to shape the current understanding of the field.

Development of international humanitarian law

First Geneva Convention gave a legal format to Dunant’s proposal and established a special status for medical personnel. The fact that this conference lasted for less than 10 days provides a clear indication to the general support given to the propositions. This original convention has been replaced by more modern and comprehensive treaties. However, it illustrates in a concise manner the central objectives of humanitarian law treaties. Two separate legal currents have, up until 1977, contributed to this evolution: 

  • The Geneva laws were mainly concerned with the protection of the victims of armed conflicts, i.e., the noncombatants and those who don’t take part in hostilities.
  • The Hague law, whose provisions relate mainly to prohibitions and limitations of specific means and methods of warfare.

These 2 legal currents were practically merged with the adoption of the 2 additional protocols of 1977.

Geneva Convention, 1864

Art. 1. Ambulances and military hospitals shall be recognized as neutral, and as such, protected and

respected by the belligerents as long as they accommodate wounded and sick.

}Neutrality shall end if the said ambulances or hospitals should be held by a military force. 

}Art. 2. Hospital and ambulance personnel, including the quartermaster’s staff, the medical,

administrative and transport services, and the chaplains, shall have the benefit of the same neutrality

when on duty, and while there remain any wounded to be brought in or assisted.

}Art. 3. The persons designated in the preceding Article may, even after enemy occupation, continue to

discharge their functions in the hospital or ambulance with which they serve, or may withdraw to

rejoin the units to which they belong. When in these circumstances they cease from their functions, such

persons shall be delivered to the enemy outposts by the occupying forces.

}Art. 4. The material of military hospitals being subject to the laws of war, the persons attached to such

hospitals may take with them, on withdrawing, only the articles which are their own personal property.

Ambulances, on the contrary, under similar circumstances, shall retain their equipment

Art. 5. Inhabitants of the country who bring help to the wounded shall be

respected and shall remain free. Generals of the belligerent Powers shall make

it their duty to notify the inhabitants of the appeal made to their humanity, and of

the neutrality which humane conduct will confer.

}The presence of any wounded combatant receiving shelter and care in a

house shall ensure its protection. An inhabitant who has given shelter to the

wounded shall be exempted from billeting and from a portion of such war

contributions as may be levied.

}Art. 6. Wounded or sick combatants, to whatever nation they may belong, shall

be collected and cared for.

}Commanders-in-Chief may hand over immediately to the enemy outposts enemy

combatants wounded during an engagement, when circumstances allow and

subject to the agreement of both parties.

}Those who, after their recovery, are recognized as being unfit for further service,

shall be repatriated.

}The others may likewise be sent back, on condition that they shall not again, for

the duration of hostilities, take up arms.

}Evacuation parties, and the personnel conducting them, shall be considered as

being absolutely neutral.

Contd…

}Art. 7. A distinctive and uniform flag shall be adopted for hospitals, ambulances and

evacuation parties. It should in all circumstances be accompanied by the national flag.

}An armlet may also be worn by personnel enjoying neutrality, but its issue shall be left

to the military authorities.

}Both flag and armlet shall bear a red cross on a white ground.

}Art. 8. The implementing of the present Convention shall be arranged by the

Commanders in Chief of the belligerent armies following the instructions of their

respective Governments and in accordance with the general principles set forth in this

Convention.

}Art. 9. The High Contracting Parties have agreed to communicate the present

Convention with an invitation to accede thereto to Governments unable to appoint

Plenipotentiaries to the International Conference at Geneva. The Protocol has

accordingly been left open.

}Art. 10. The present Convention shall be ratified and the ratifications exchanged at

Berne, within the next four months, or sooner if possible.

}In faith whereof, the respective Plenipotentiaries have signed the Convention and

thereto affixed their seals.

}Done at Geneva, this twenty second day of August, in the year one thousand eight

hundred and sixty four.

Conclusion

 International Humanitarian Law  contributes to the object of general International Law in order to maintain international peace and security between the nations. Therefore, it can be concluded that the nature of International Humanitarian Law is to minimize human sufferings caused by war or armed conflicts.

It applies in the situation of an armed conflict between armed forces of two or more countries or between the armed forces of a country and an organized resistance movement inside the country but contrary,  human right law is applicable in all circumstances and at all places.

It  is considered as a special branch of International Law which deals with relations between nations and International organizations and International Humanitarian Law regulates the conduct of members of armed forces of national and international organizations.

It  does not have a wider scope in comparison to the scope of International Law. The efforts to regulate warfare have existed to a greater extent throughout the history of International Humanitarian Law but these remained temporary till the time ICRC was adopted, established and founded and the 1st Geneva Convention came into existence.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.