“THE PENAL RESPONSIBILITY AND SANCTIONS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW”
- HISTORICAL DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW
“Humanitarian law is a branch of public international law which owes inspirational to a feeling for humanity and which is centred on the protection of the individual”
This quotation from a work by Mr. Jean Pictet defines the scope of this law, the purpose of which is to “alleviate the sufferings, of all the victims of armed conflicts who are in the power of their enemy whether wounded, sick or shipwrecked prisoners of war or civilian”1
Prior to the middle of the 19th Century, agreements to protect victims of wars were of mere transient character, binding only upon the contracting parties thereto, and based upon strict reciprocity.
In reality, they constituted purely military agreements usually effective only for the duration of a particular period of hostility. This state of affairs was changed by the birth of modern humanitarian law which is associated with the emergence of the Red cross movement. This development makes states bound by universal treaty applicable at all times and in all circumstances.
The history of mankind is the story of power struggles, confrontations and armed conflicts between nations, people and individuals2.
From earliest times, men have been preoccupied with the problem of how to control the effect of violence and its attendant human sufferings with varying degrees of success.
It would therefore be misleading to claim that the founding of the Red Cross in 1863, or the adoption of the first Geneva Convention in 1864, marked the beginning of international humanitarian law as we know it today. Just as there is no society of any sort that does not have its own set of rules, there has never been a war that did not have some vague or precise rules covering the outbreak, end of hostilities, and how they are conducted. As Quincy Wright rightly observed that “Taken as a whole, the war practices of primitive people illustrate various types of international rules of war known at the present time; rules determining the circumstance formalities and authority for beginning and ending war; rules describing limitation of persons, time, place and methods of it conducts, and even rules outlawing war altogether3.
The first laws of wars were proclaimed by major civilization several millennia before our era: “I establish these law to prevent the strong from oppressing the weak”4.
Many ancient texts such as Mahabharata, the Bible and the Koran contain rules advocating respect for the adversary. For instance, the viqayet, a text written toward the end of the 13th century at the height of the period in which the Arabs ruled Spain, contains a veritable code for warfare. The 1864 convention, in the form of a multilateral treaty, therefore codified and strengthened ancient, fragmentary and scattered law and customs of war protecting the wounded and those caring for them. In the 17th century, the Dutch legal scholar and diplomat, Grotius wrote his De Jure Belli, Ac
pacis, in which he listed rules that are among the firmest
foundation of the law of war.
In the 18th century, Jean – Jacques Rousseau made a major contribution in formulating the following principle about the development of war between States: “War is in no way a relationship of man with man but a relationship between state, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers . . . since the object of war is to destroy the enemy state, it is legitimate to kill the latter’s defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men and it is no longer legitimate to take their lives”.
From the beginning of warfare to the advent of contemporary humanitarian law, over 500 cartels, codes of conduct, covenants and other texts designed to regulate hostilities have been recorded. They include the Lieber Code, which came into force in April 1863 and it is important in that it marked the first attempt to codify the existing laws and customs of war.
Unlike the first Geneva Convention adopted a year later the lieber code however did not have the status of a treaty as it was intended solely for union soldiers fighting in the American civil war5.
Modern international humanitarian law can be associated with sophistication of weapons of mass destruction employed in modern warfare by large national armies and the resultant suffering of the wounded soldiers lying helpless in the battle field, the wanton destruction of properties and the ecological effect on the environment. These coupled with the increasing interest of state in the common principles of respect for the human being informed the development of the modern law of armed conflicts which is based on multilateral conventions.