HISTORICAL ORIGIN AND

DEVELOPMENT OF INTERNATIONAL
HUMANITARIAN LAW
(Ancient Customs, Battle of Solferino,
Lieber Code, De Martens Preamble)

Dean Rey Oliver S. Alejandrino

International Humanitarian Law
Unica Amor Mananquil

2nd Semester A.Y. 2018- 2019

I. ANCIENT CUSTOMS

The concept of International Humanitarian Law is not a new concept. It

has been in existence for centuries even before it was codified. The
International Humanitarian Law was not just the concern of the Europeans or
Americans. It has been the growing concern of the Chinese, Japanese, Indians,
and Arabics. Each of these nationalities and their own old civilization has their
respective traditions or rules with regard to warfare. Although the old rules
existing in the ancient civilization were about warfare and rights of the people
involved therein, those are not similar or alike to the humanitarian laws
existing today.

The first example of International Humanitarian Law in the ancient

civilization is during the time of the Sumerians who acknowledged that there
are laws that should be made applicable during the times of war. And that war
is initiated by a declaration of war and brought to an end by a peace treaty. 1
The Sumerians also acknowledged the peace negotiators should be granted
immunity and protection.

Also, Hammurabi, the King of Babylon during 1.728 to 1.686 B.C., who
wrote the Code of Hammurabi, stated that the weak should be protected
against oppression by the strong and that hostages should be released by the
captors once the ransom is paid.

During the battle of Egyptians and Hittites in 1269 B.C. International

Humanitarian Law is also present. This war between the Egyptians and the
Hittites lasted for more than two centuries over the small kingdoms between
these two great powers at that time 2. During this war, the Hittites have a law to
1
Thamil Venthan Ananthavimayagan. International Humanitarian Law. February 2018.
http://www.nyulawglobal.org/globalex/International_Humanitarian_Law.html.
2
Trevor Bryce. The “Eternal Treaty” from the Hittite Perspective . British Museum.
https://www.britishmuseum.org/pdf/6a%20The%20Eternal%20Treaty.pdf.

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respect the inhabitants or residents of an enemy city. Also, this time Hittites
considered entering into a peace treaty to end the waging war with the
Egyptians. This war was called the “Battle of Kadesh” which in turn resulted to
the creation of the “Eternal Treaty”. The Eternal Treaty was the ancient treaty
which both parties were able to preserve their own copy.

Another example is the humanitarian laws during the war between the
Persians and Chaldeans. While the war is ongoing on the 7 th century B.C., the
Persians were observing the law passed by Cyrus I, King of Persians, the law
stated that the wounded soldiers must be medically treated and must be
preserved as the Persians soldiers.

Even the “Mahabharata”, an Indian epic legendary fictional narrative

which was written around 400B.C. have portions stating that the surrendering
adversaries who were no longer capable of fighting should not be killed.
Likewise, the Laws of Manu or the Manusmriti a Code containing a hybrid of
moral-religious laws also contained provisions prohibiting the killing of weak
surrendering opponents and the use of certain means of warfare like the
poisonous or burning arrows. The Laws of Manu also detailed that the
properties of the enemies and prisoners of war should be protected.

The above-mentioned examples only prove that humanitarian laws or

laws of war were inculcated in different civilization even before the codification
of the modern International Humanitarian Laws.

II. BATTLE OF SOLFERINO

On June 24, 1859, The French Army led by Napoleon III and the
Sardinian Army under Victor Emmanuel II engaged the Austrian forces under
Emperor Franz Joseph I in a northern village in Solferino, Italy. The alliance

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between the French and Sardinians monarchs was known as the Franco-
Sardinian Alliance. This battle was known to be the last battle which the
armies were under the command of their own monarchs. The battle was for the
unification of Italy which lasted for more or less ten (10) hours of fierce fighting
which resulted to the deaths of Six Thousand (6,000) soldiers and wounded
Thirty Thousand (30,000) soldiers.

The Franco-Sardinian armies do not have enough medical supplies and

services to aid their soldiers. There was lack of transport and the crates of field
dressings were not strategically placed near the front lines resulting to the
wounds of the soldiers getting worse.

Due to the lack of supplies, food, water, and medical attention most of
the soldiers fled to nearby town and villages for refuge. More than Nine
Thousand (9,000) soldiers came to the town of Castiglione delle Stiviere where
the invalid soldiers already outnumbered the abled ones.

On the same evening of the battle, a young banker, who later became
famous and was known as Henry Dunant, came to Castiglione and witnessed
the horrors caused by the war. Henry Dunant does not have any knowledge
with regard to the medical field but he tried to give aid and help to the
wounded soldiers who were staying in Chiessa Maggiore, a church in
Castiglione. He did not just came to the aid of the soldiers, he also went out of
his way to organize the local women to tend to the injured and dying. Dunant
also wrote letters to his known associates and asked for supplies.

Dunant cannot forget the horrors that he faced during the battle so he
decided to shut himself in Geneva and he studied the battle which took place
in Solferino and wrote the book A Memory of Solferino. The book was segmented
into two (2) parts, first was the account of the battle itself and second, was the

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grim portrayal of the wounded and dying soldiers in Chiessa Maggiore. The
book was published at the expense of Dunant in October 1862, in Geneva
where 1,600 copies were printed. On the cover of the book there was a written
phrase “Not To be Sold”. The book was translated into different languages and
awakened the emotions of the readers. “A Memory of Solferino was one of those
books which shook contemporary society and left their mark on history.” 3 This
book paved the way to open the eyes of the world leaders from different part of
the globe and other concerned people to see the situation of those people
victimized my armed conflicts.

Gustave Moynier, the chairman of the Geneva Public Welfare Society,

decided to discuss the contents of Dunant’s book during the group meeting last
17 February 1863, attended by him, Dunant, General Dufour, Appia and
Maunoir. These five (5) members drafted the paper which was submitted to the
international welfare congress. Later on, this paved the way to the founding of
the International Committee of the Red Cross.

II. LIEBER CODE

On April 24, 1863, during the American Civil War, President Abraham
Lincoln issued General Order No. 100 known as the “Instructions for the
Government of the Armies of the United States in the Field”. The main author
of the General Order No. 100 was Francis or Franz Lieber; thus, it was named
after him.

Franz Lieber was born in Berlin on March 18 1798. Lieber was a German
who immigrated to the United States at the young age of twenty-eight. He was
previously imprisoned and branded as the “enemy of the state” because of his

3
Francois Bugnion. From Solferino to the Birth of Contemporary International
Humanitarian Law. 22 April 2009. Geneva.

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liberal nationalist views. Lieber taught at the University of South Carolina
political science.

He was a combat veteran who was wounded during the Napoleonic Wars
while serving the Prussian army. During the Civil War, Lieber’s oldest son
remained in South Carolina and died fighting the Confederacy and his two
other sons joined the Union army and were wounded. While he was still in
South Carolina serving as a professor in college, he was able to acquire several
research resources which allowed him to study different military and
diplomatic practices and patterns in Europe and America during war. As such,
Lieber was able to finish the first draft of the laws and usages of war which was
reviewed by the other members of the War Department Board. Thereafter, it
was signed by President Abraham Lincoln.

The Lieber Code is a handbook pertaining to law of war used by the

American government during the war between the North and the South
America.

The Lieber Code contains One Hundred Fifty-Seven (157) provisions that
deal with wide range of legal issues with regard to armed conflicts. The main
segments of the Lieber Code were concerned with the martial law, military
jurisdiction, the treatment of spies, guerillas, deserters, and prisoners of war.
There is an array of issues which were discussed in the Lieber Code. The issues
are whether armed forces are justified by military necessity, the principle of
humanity, distinctions between combatants and civilians, and permissible
means of warfare.

It was further explained in the Lieber Code that military necessity are
“measures which are indispensable for securing the ends of the war, and which
are lawful according to the modern law and usages of war. The Lieber Code

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encountered strong opposition when it provides that international law should
apply to all people, without distinguishing their color. Moreover, it stated that
fugitive slaves that escaped North are already free and all soldiers whatever
their color is should be given a Person of War status.

Finally, the Lieber Code continued to be influential around the world

because it was either adopted by another country or it inspired them to come
up with their own version of the Lieber Code. The Prussians translated and
adopted the Lieber Code as the guideline of its armies. Soon after the countries
in Europe adopted the Lieber Code. The Lieber Code played a very important
rile because it forms as the basis for future codifications of the laws and
customs of war by different countries and the entire international community.
The Lieber Code remained to be in force in the America until 1914 when a new
manual was issued.

IV. DE MARTENS PREAMBLE

“Until a more complete code of the laws of war is

issued, the High Contracting parties think it right to
declare that in cases not included in the Regulations
adopted by them, populations and belligerents remain
under the protection and empire of the principles of
international law, as they result from the usages
established between civilized nations, from the law of
humanity and the requirements of the public
conscience.”

The aforestated clause was the declaration of Professor Friedrich Martens

during the Hague Peace Conference in 1899. Such declaration was included in

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the Preamble of the 1899 Hague Convention II- Laws and Customs of War on
Land.

Prof. Friedrich Martens was a Russian delegate in the Hague Peace

Conferences in 1899. He was born on August 27, 1845 in Russia. He lost both
of his parents and was sent to an orphanage in St. Petersburg, Russia. He
learned to speak German in high school and after finishing his degree in St.
Petersburg University, he worked in the Russian ministry of foreign affairs. He
wrote the book The Right of Private Property in War in 1869 and The Office of
Consul and Consular Jurisdiction in the East in 1873.

The declaration was delivered by Martens when the delegates cannot

agree on the issue of how to treat civilians who took up arms against the
occupying force. The large military powers wanted to treat them as francs-
tireurs, or unlawful combatants who may be executed when captured. On the
other hand, the smaller states wanted to treat them as lawful combatants.

Martens’ Clause was open to different interpretations. A restrictive

interpretation of the clause is that it is a mere “reminder that customary
international law continues to apply after the adoption of a treaty norm” 4. A
wider interpretation is that, since most laws relating to armed conflict are not
complete, the clause means that “something which is not explicitly prohibited
by a treaty is not ipso facto permitted” 5. The widest interpretation is that
“conduct in the armed conduct in armed conflicts is not only judged according
to treaties and custom but also the principles of international law referred to by
the Clause.”6

4
Rupert Ticehurst. The Martens Clause and the Laws of Armed Conflict. 30 April 1997.
International Review of the Red Cross, No. 317.
5
Ibid.
6
Ibid.

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 Although the declaration of Martens was used to solely resolve the
aforementioned issue, his declaration was used in different treaties about
armed conflicts. Another example when Martens’ Clause was used was when
the International Court of Justice made an Advisory Opinion issued on July
08, 1996 about the legality of the threat or use of nuclear weapons.

The Russian Federation proposed that since there are a lot of laws of war
formulated in 1949 and 1977, the Martens Clause is now redundant. On the
other hand, the United Kingdom countered that Martens Clause provides a
reminder that absence of a specific treaty prohibiting an act does not make its
use lawful. The ICJ also stated that the Martens Clause is an effective means to
address the fast evolution of military technology.

To better understand the meaning of the Martens Clause, it is best to

dissect such statement and understand the concepts therein. “Law of
Humanity” are interpreted as “prohibiting means and methods of way which
are not necessary for the attainment of a definite military advantage”. While the
phrase “the requirements of public conscience” refers to “host of draft rules,
declarations, resolutions, and other communications expressed by persons and
institutions highly qualified to assess the laws of war although having no
governmental affiliations”. The Martens Clause serves to have an important
role in international humanitarian law because it gives reference and stresses
the importance and applicability of customary laws and norms in regulation of
armed conflicts.7

7
Ibid.

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V. SUMMARY OF THE HISTORICAL DEVELOPMENT OF IHL8

3000 BC Customs, Bilateral treaties, Customary law

1859 Battle of Solferino
1863 Lieber Code (Instructions for the Government of Armies of the
United States in the Field)
1863 Foundation of the ICRC and of the first National Societies
1864 First Geneva Convention
1868 Saint Petersburg Declaration Renouncing the Use, in Time of
War, of Certain Explosive Projectiles
1880 Oxford Manual on The Laws of War on Land
1899/1907 Hague Conventions
1913 Oxford Manual of the Laws of Naval War
1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating,
Poisonous or Other Gases, and of Bacteriological Methods of
Warfare
1929 First Geneva Convention on prisoners of war
1945/1948 Establishment of the International Military Tribunals in
Nuremberg and Tokyo for the Prosecution and Punishment of
the Major War Criminals
1949 Geneva Conventions:

I -on Wounded and Sick in the Field

II -on Wounded, Sick and Shipwrecked at Sea
III -on Prisoners of War
IV -on Civilians (in the hands of the enemy)
Common Article 3 on non-international armed conflicts
1954 Hague Convention for the Protection of Cultural Property in
the Event of Armed Conflict
1977 Protocols Additional to the Geneva Conventions

Protocol I: applicable in international armed conflicts

(including national liberation wars)
Contents:
1. Development of the 1949 rules
2. Adaptation of International Humanitarian Law to the
realities of guerrilla warfare
8
Ibid. Ananthavimayagan.

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 3. Protection of the civilian population against the effects of
hostilities
4. Rules on the conduct of hostilities

Protocol II: applicable to non-international armed conflicts

Contents:
1. Extension and more precise formulation of the fundamental
guarantees protecting all those who do not or no longer
actively participate in hostilities
2. Protection of the civilian population against the effects of
hostilities
1980 UN Convention on Prohibitions or Restrictions of the Use of
Certain Conventional Weapons
1993 Paris Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on
their Destruction
1993/1994 Establishment of International Criminal Tribunals for the
former Yugoslavia (ICTY), in The Hague, and Rwanda (ICTR) in
Arusha
1995/1996 Protocols to the 1980 Weapons Convention: Protocol IV on
Blinding Laser Weapons New Protocol II on Anti-Personnel
Land Mines
1997 Ottawa Convention Banning Anti-Personnel Land Mines
1998 Adoption in Rome of the Statute of the International Criminal
Court
1999 Protocol II to the Convention on the Protection of Cultural
Property
2000 Optional Protocol to the Convention on the Rights of the Child,
on the Involvement of Children in Armed Conflicts (amending
article 38 of the Convention)
2001 Amendment to Article 1 of the Convention on Certain
Conventional Weapons of 1980, in Order to Extend it to Non-
International Armed Conflicts
2002 Entry into force of the Statute of the International Criminal
Court, on July 1 2002
2003 Protocol on Explosive Remnants of War (Protocol V to the 1980
Convention), 28 November 2003
2005 Publication of the ICRC Study on Customary International
Humanitarian Law
2005 Protocol III additional to the Geneva Conventions relating to
the Adoption of an Additional Distinctive Emblem
2008 Convention on Cluster Munitions

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