Humanitarian protection in war

Before the Westphalian notions of the state and war reached their ascendency, limits to warfare were highly particular, with different cultures and civilisations turning to their own value systems to limit behaviour in war. These were largely religiously inspired, customary' traditions that in part included beliefs on how war should be conducted. For example, in the Orient, Sun Tzu’s emphasis on the use of force only as a last resort reflected “Confucian idealism and the political culture it spawned” (Handel, 2001, p. 136). Within this system there was no place for a dichotomy of private and public (“just”) violence now so familiar in the West. Individual and state morality were inseparable. The Islamic world had particularly well-developed rules around warfare, in part expressed through siyar, a religious and legal system that guided dealings with non-Muslims in peace and war. These laws were defined by their religious dimension, the instinct to comply with them out of a desire to obey God, a lack of consistent codification and the specificity of its context and sources (Al-Dawoody, 2017, pp. 999-1000). To further build this provincial picture, a diverse collection of customs - often relying on oral traditions conveyed through proverbs - guided behaviour in war across Africa (see Provost, 2007, p. 623). Meanwhile, other traditions shunned the basic assumptions behind the regulation of war, and instead produced pacifist traditions. Here Buddhism and notions of “do no harm” come to mind (see Megret, 2015, p. 683).

In Medieval Europe, restraint in war was motivated by the reciprocal expectations of the military elite of the era, guided by notions of what constituted chivalrous and civilised behaviour. Derived from the Christian ethic, this included notions of honour, fair play, mercy and protection of the weak. Seldom if ever realised in full, these ideals

remained a source of inspiration, pervading the political, social and literary life and filling an important need as the yardstick for the mores of the period. Chivalry in the Middle Ages was thus a mix of reality, poetry’ and legend.

(Meron, 1998, p. 5)

Customary rather than statutory in nature, this behaviour was in part formalised by Pope Gregory IX, who in the 13 ^{century came up with a list of who should be protected in war. Like many motivations of restraint, there was an element of self interest in Gregory’s list, which included priests, monks and friars, but it also included those who he considered “naturally weak” - women, children, widowsand orphans. This medieval list set out what was moral behaviour in conflict, distinguishing between the “armed and the unarmed, the potentially harmful and the essentially harmless, the strong and the obviously weak” (Slim, 2007, p. 13). Subsequently, there were also various royal ordinances formalising these Christian customs, including Henry V’s early 15” century codification of rules protecting women from rape, and churches and people belonging to the church from assault, robbery or capture (see Meron, 1998, p. 5).}

As the modern state system took shape in post-Westphalian Europe, these Christian values were incorporated into a set of secular rules, which laid out appropriate behaviour in the ever-escalating inter-state wars of the time. This codification of the law of war gained traction in the mid-19^th century with the 1856 Declaration of Paris, which regulated maritime warfare. In the American Civil War, the so called Lieber Code of 1863 guided the conduct of the Union Army in its war against the South, including the rights of the unarmed enemy population. In balancing an explicit principle of “military necessity” with a corresponding principle to protect the unarmed population, it set the lone for future discussions about the protection of civilians in war (see Slim, 2007, p. 18). Five years after the adoption of the Lieber Code, 16 European stales signed the St Petersburg Declaration of 1868, the first formal agreement limiting the use of certain types of weapons in war, including a ban on explosive bullets. Designed “to reconcile the necessity of war with the laws of humanity”, it declared that “the progress of civilization should have the effect of alleviating, as much as possible, the calamities of war” (cited in Friedman, 1972, p. 192).

Among the earliest instruments of international law, these treaties laid out what constituted legitimate warfare between states and placed limits on the violence that could be applied. In this, they were a very specific response to a peculiarly Western problem. They were a response to the specific view of war that emerged in the 18^lh and 19 ^{centuries; a view which was intimately bound up in the emergence of the nation state and notions of “just” public violence. In this particularly European view of war - outlined by Rousseau (1762) and Clausewitz (1832) - war was a state activity used in the pursuit of state interest and states held a monopoly over the legitimate use of violence. Rousseau summed it up as follows: “War is in no way a relationship of man with man but a relationship between stales, in which individuals are enemies only by accident. Not as men, nor even as citizens, but as soldiers” (cited in Fresard, 2004, p. 37). Other forms of organised violence - carried out by an assortment of militias, bandits, and independent warlords - were largely ignored by this discourse, leaving the statebased definition dominant.}

The emergence of the nation state also militated the establishment of sizeable and at least semi-professional standing armies which became the hallmark of European states, important as both a signifier of statehood and as the means of deploying the legitimate use of international force. History shows that the scale of these armies and the ferocity of interstate violence grew over the 19^th century, propelled by the emergence of nationalism and liberalism as political forces, the

A contested history of humanitarian protection 27 advent of conscription and the growing industrialisation of warfare (see Barnett, 2005; Megret, 2006).

These radical developments, largely unknown anywhere else, and extending as they did the theatre of operations to the territories of entire states, announced the total wars of the twentieth century. As such they threatened the very fabric of the nascent international community.

(Megret, 2006, p. 311)

The response to this escalating violence and the decline of communal values emerged from the same state-making process that established war as a specific form of violence practiced by the state. The unfolding rules of war were a direct function of the nascent international community’s embrace of positivism, with its emphasis on the state as the sole source of law, and thus as the framework for international law.² This was in contrast to many cultures that existed at the time, and even Europe’s own traditional emphasis on notions of reciprocity, chivalry and civility. The ultimate effect would be to shift the onus of humanitarian protection - at a formal and explicit level at least - “from the province of moral or chivalrous compulsion to a positive law” (Megret, 2006, p. 283).