History and Codification of Humanitarian Law

The origins of humanitarian law go back to ancient history. The concept of rules regulating war is recognizable in every culture, religion, and tradition. It is closely linked to the history of war. In all historical periods, leaders set up rules and taboos that determine what is allowed and what is forbidden in military activities. These rules aim at trying to maintain control, discipline, and efficiency of military forces. They also aim at limiting the impact of violence and destruction, on the physical and mental integrity of combatants, in order to facilitate their return to society after the conflict has ended. Finally, they were intended to limit the destruction of the adversary’s territory and population with a view to the return to peace.

The first laws of war were not universal but rather regional. Indeed, the first Chinese treaty was drafted by Sun Tzu during the seventh to sixth centuries BC. Most of its principles were inspired by religion and aimed at humanizing social, political, and military relationships. However, these rules were enforced only between people of the same cultural background. If the enemies did not speak the same language or were from a different religion, these rules were not respected. The theory of “just wars” or “holy wars” is an illustration of the ambiguity of such a phenomenon. This theory progressively moved from the requirement of “just war” (holy or just goals) to the requirement of “just means.” Subsequently, European lawyers such as Grotius, Vittoria, or Vattel, as well as Muslim lawyers such as Chaybani, transformed moral standards into legal rules, thereby anticipating contemporary universal codification. It is worth noting that, in the area of jus ad gentium , important Islamic writings were drafted before—and therefore probably influenced—European codification. This development was confirmed by contemporary international law that limits the conditions under which a State may resort to force while humanitarian law restricts the means and methods of war allowed, regardless of the objectives pursued.

▸ Collective security ▸ Security Council ▸ War

The codification of international humanitarian law intensified during the nineteenth century, driven by the nongovernmental humanitarian initiatives and the diplomatic conferences that led to the adoption of these conventions by States.

A private Swiss organization, the International Committee of the Red Cross, created by Henri Dunant in Geneva after witnessing the lack of medical care provided to the victims of the battle of Solferino in 1859, played a key role in this codification and in the implementation of relief. In Solferino, Henri Dunant discovered the hidden face of military confrontations between the major powers of the time: 40,000 dead and wounded from both armies were left where they lay to become prey to pillagers on the battlefield. In 1864, Dunant was involved in the drafting of the first Geneva Convention for improving the fate of injured soldiers, and he invited States to sign it at a diplomatic conference specially convened for the purpose. This convention proposed, among other things, that States accept the work of a neutral and independent medical relief committee authorized to fetch and care for wounded and sick soldiers, whatever their nationality. During the war of 1870, the Committee extended its relief actions to prisoners of war not covered by the first Convention. Thus the offer of neutral humanitarian relief preceded international humanitarian law and served as the basis for its later codification by States.

In 1868, the Imperial Cabinet of Russia adopted the Saint Petersburg Declaration, which prohibited the use of certain weapons and “fixed the technical limits at which the necessities of war ought to yield to the requirements of humanity.” This text asserted that the only legitimate object that States should endeavor to accomplish during war is to weaken the military forces of the enemy and that they should abstain from employing arms that uselessly aggravate the sufferings of disabled men or render their death inevitable. It defined the dialectics specific to humanitarian law, which accepted “useful suffering” for reasons of legitimate and objective military necessity while limiting “pointless suffering” by regulating the means and methods of war and creating a right to relief.

The 1870 war put this dialectical humanization of war to the test, as States attempted to limit concessions concerning the neutrality of medical relief. At the peace conference convened in The Hague in 1899, States demanded a rapid revision of the Geneva Convention of 1864. They left the right to relief initiative to the Geneva Convention and themselves adopted conventions relative to the peaceful settlement of international conflicts as well as regulation concerning the law and customs of war on land. These conventions and regulations from The Hague conference in 1899 were added to and amended at the second international peace conference convened in The Hague in 1907. The regulation concerning the laws and customs of war on land, annexed to the fourth Convention of 1907, summarized the rules and principles that continue to provide the framework for the law on contemporary conflicts.

World War I (1914–1918) was a further test of the balance between humanitarian and military necessities and created new needs in terms of relief. During this conflict, the ICRC positioned itself as an essential interlocutor for States and demonstrated the importance of its role as a neutral intermediary by maintaining a certain level of dialogue between the belligerents and, through its own relief initiatives, compensating for the law’s insufficiencies in addressing the scale of the needs created by such an intense conflict. Furthermore, the application of the principle of reciprocity—the cornerstone of general international law—created dangerous legal vacuums relative to treatment and right to relief, as States were only bound to respect the right to relief for combatants of a State having ratified the same conventions. For this reason, in 1926, the ICRC called for a review of the provisions relative to the treatment of wounded or sick soldiers and drafted an additional convention on the treatment of prisoners of war. The majority of the relief needs of combatants were thus covered by the new Geneva Conventions of 1926. However, there were still no regulations concerning relief for civilian populations. In 1934, the ICRC submitted a draft international convention to States concerning the condition and protection of civilians of enemy nationality on territory belonging to or occupied by a belligerent.

This draft was met with considerable reticence on the part of the different chancelleries, which considered this to be a mission that should be restricted to States and their armies. The examination of this text was interrupted by the outbreak of World War II. As a result, the ICRC’s action with regard to civilians during World War II was unsupported by humanitarian law.

World War II was a theater of horrors where methods of total war rubbed shoulders with techniques of mass extermination. Given the events, it had become unthinkable to ignore the gaps in humanitarian law concerning the protection of civilians. Consequently, at the end of the war, and despite the creation of the United Nations tasked with guaranteeing peace and international security, a more ambitious phase of codification of humanitarian law got underway. The four Conventions adopted in Geneva on 12 August 1949 were the fruit of this recodification. The first three unified and improved on existing humanitarian law, until then spread across the various Geneva and Hague Conventions and relating only to the protection of wounded or sick combatants or prisoners of war.

The fourth Convention, devoted to the protection of civilian populations in time of war, was a political and legal revolution. It instituted several categories of civilians protected by international law according to the type of risk to which they are exposed: poverty, occupation, deportation, attacks, sickness and injury, detention, internment, and the like. However, it did not cover the obligations of State parties to a conflict with regard to their own civilians. This gap was filled in 1977 by two Additional Protocols, which unified protection with reference to the notion of civilian victims of conflict and without mention of enemy nationality. This development, written into Protocol II, was thus applicable to non-international armed conflicts, which by their nature take place within the borders of a single State and oppose national armed forces against parts of their own population.

The fourth Convention restructured and set forth, in a single text, the rules relating to both methods of warfare and relief. It prevented States and armies from avoiding responsibility for the populations placed under their control, while also providing for the rights of impartial humanitarian organizations, acting as neutral intermediaries, to deliver effective relief and safeguard the rights of the most vulnerable. These Conventions recognized the dual role of the International Committee of the Red Cross both as a guardian of humanitarian law tasked with safeguarding its interpretation and proposing new codifications and as a relief organization ensuring the protection of victims. They acknowledged the special union between States and private humanitarian initiatives by annexing the statutes of the ICRC to the Geneva Conventions.

However, the situations covered by the Geneva Conventions continued to be centered on armed conflicts between States, with the situation of non-international armed conflicts covered only by their Common Article 3.

The conflicts that have taken place over the past fifty years do not really enter this category. They have been marked by fights for independence and decolonization and numerous internal conflicts, some of which have been internationalized through the direct or indirect intervention of other States.

The two Additional Protocols added to the Geneva Conventions in 1977 took account of two major changes in the form and methods of war: the fact that civilians were being targeted and becoming victims increasingly often and the growing number of internal conflicts.

Additional Protocol I extended the protection of victims of international armed conflicts already covered by the fourth Geneva Convention of 1949. Additional Protocol II created a completely new framework of protection for victims of non-international armed conflicts, which until then had only been covered by Common Article 3 to the Geneva Conventions of 1949.

The specific difficulty of Additional Protocol II is that it has to address the political and military imbalance of non-international armed conflicts. Indeed, it acknowledges that within the same national boundaries, the government’s armed forces are opposed to organized armed dissidents or opposition groups. Additional Protocol II thus clearly enters the domain of national sovereignty. Its content is an analogical but simplified transcription of the key provisions of the law on international conflicts concerning methods of warfare and right to relief for civilian populations. However, the definition and the rights of combatants arrested and detained in relation with the conflict are kept to a minimum, and it is essentially left up to the parties to the conflict to come to an agreement.

Many of the provisions of international humanitarian law have been contested and undermined by military actions carried out as part of the global war on terror launched in the wake of the terrorist attacks of 11 September 2001 in the United States. Yet humanitarian law continues to evolve in order to address these new challenges. The jurisprudence of national and international courts has in many cases reestablished an interpretation of humanitarian law that both conforms to its spirit and is adapted to the so-called new situations. The recognition in 2005 of an extensive corpus of rules of customary international humanitarian law compiled by the ICRC simplifies and facilitates the application and interpretation of this law in new and complex conflict situations.

Today, international humanitarian law is the only legal code regulating relief actions within the context of a conflict. Its rules, like any laws, must be interpreted in a manner that embraces the reality of conflicts, rather than in a manner aimed at avoiding responsibilities. Because war retains a pattern of more or less organized and institutionalized violence (although the level of organization varies), it is possible in all situations of conflict to identify the chains of command responsibility. This makes it possible to undertake negotiations that will include the application of, and respect for, humanitarian law.

▸ Customary international law ▸ Geneva Conventions and Protocols ▸ Natural law, religious law and positive law ▸ Respect for international humanitarian law ▸ Red Cross and the Red Crescent

A distinction is sometimes made between the rules regulating the conduct of war and those governing the right to relief, with The Hague Conventions seen as governing the way war is waged and the Geneva Conventions regulating the rights of non-combatants in times of armed conflict. This distinction is artificial.

In practice, the provisions of the Geneva Conventions and their Additional Protocols are not confined to organizing the delivery of relief to civilians. They also codify and incorporate numerous rules relating to the conduct of hostilities. For instance, they restrict or prohibit certain methods of warfare and establish the responsibilities of all parties to the conflict with regard to war crimes.

The obligations of armed forces during hostilities are consolidated under the entries on ▸ Methods (and means) of warfare ▸ War ▸ Weapons . The issues relating to the punishment of violations of humanitarian law are addressed in the entries on ▸ Penal sanctions in humanitarian law ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity .

Those concerning relief actions can be found under the entries on ▸ Assistance ▸ Humanitarian and relief personnel ▸ Medical duties ▸ Protected objects ▸ Protected persons ▸ Protection ▸ Relief ▸ Right of access ▸ Right of humanitarian initiative ▸ Supplies .

Humanitarian organizations, citizens, and political authorities need to be familiar with the provisions contained in the 1949 Geneva Conventions and the two 1977 Additional Protocols because they are the actors, by law and in practice, who organize and coordinate the responsibilities of civilian authorities and relief organizations in times of conflict.

The Means

To enable international humanitarian law to achieve its objective, rules and regulations have been developed around two axes: the responsibility of military commanders and the actions of humanitarian organizations.

The Method

Unlike international human rights law, international humanitarian law does not establish universal rights applicable to all individuals at all times. Instead, the specificity of the four Geneva Conventions is that each one applies to a different category of protected persons, defining the minimum standard of treatment that must be respected for each category. Hence, the applicable law differs depending on whether the situation concerns an international or an internal armed conflict, an occupied territory or a besieged area. It also differs depending on whether it concerns persons who are wounded or sick, civilians, women, children, internees, prisoners of war, and so on. ▸ Civilians ▸ Combatants; Population detention; Displacement; International armed conflict; International disturbances and tensions; Non-international armed conflict; Occupied territory; Protected persons; Wounded and sick persons

The advantage of this approach is that it lists specific rights, carefully adapted to protect individuals in these categories from the specific risks they may incur as a result of their status or the nature of the situation. The weakness of this method is that, if the Conventions are applied in bad faith, it can lead to a refusal or a delay in providing the necessary protection while the concerned parties debate the specific definition or status of the protected person or of the situation. Furthermore, this approach means that a number of persons and situations are not covered by the laws regulating armed conflict, since they do not fall into one of the specific categories. In such cases, the fundamental guarantees of humanitarian law and general international guarantees that remain applicable at all times must be applied to them.

There has been fierce debate and considerable legal controversy over whether the definition of international and non-international armed conflict as set forth in the Conventions and Additional Protocols can be adapted to atypical armed conflict situations and the new forms of confrontation of the years after 2000. The terms internationalized armed conflict , transnational armed conflict , or even extraterritorial armed conflict have sometimes been used in order to describe the characteristics of these conflicts in a more precise manner, but also to contest or undermine the application of humanitarian law in these situations.

▸ International armed conflict ▸ Non-international armed conflict

The Content of International Humanitarian Law

The rules vary depending on the nature of the armed conflict. It is therefore important to distinguish between:

• the law of international armed conflict, established by the Geneva Conventions and Additional Protocol I (1),
• the law of non-international armed conflict, established by Common Article 3 and completed by Additional Protocol II (2), and
• the customary rules of humanitarian law (3).

▸ Fundamental guarantees ▸ High Contracting Parties ▸ International conventions ▸ Legal status of parties to the conflict ▸ Right of humanitarian initiative ▸ Situations and persons not expressly covered by humanitarian law ▸ Special agreement