The laws of war

The high-water mark of these rules, and arguably the birth of modern humanitarianism, was the original Geneva Convention of 1864, inspired by Henry Dunanl’s experiences in Solferino. His account of these experiences - A Memory of Solferino - described the shocking scenes that followed one of the bloodiest battles of the 19'h century. In emotive language, he recounts the events that took place over three days in June 1859 near the small town in northern Italy. “A mere tourist with no part whatever in this great conflict,” he describes some 500,000 French and Austrian troops marching into battle, “drums beating and bugles sounding”. But then came a “hand-to-hand struggle ... sheer butchery; a struggle between savage beasts ... the most dreadful sights imaginable” - the sick and wounded of all nations lying side by side “on the flagstone floors of the churches of Castiglione”. But along with this desperation and suffering, Dunant also witnessed signs of compassion and restraint. He writes of local women who, at his initiative, came together on the third day of the battle to offer help. He also describes the “humanity of simple troopers” and their “kindness and sympathy towards defeated or captured enemies” (Dunant, 1862, cited in Thurer, 2007, pp. 49-50).

Upon returning home to Switzerland, Dunant drew upon these experiences to campaign for restraint in war and the creation of private societies to aid the wounded. As Barnett (2005) explains, the Red Cross founder envisioned a network of charitable relief societies which would help save lives on the battlefield, stimulate Christian principles of charity and promote ideals of civilised society (p. 78). States, which were concerned by the increasing brutality of war and risingpublic outrage, saw an opportunity and adopted some of Dunant’s ideas to establish the original Geneva Convention protecting wounded soldiers and those caring for them (see Barnett, 2011, pp. 79-80). They voluntarily signed up to these mutually beneficial ground rules that outlined what was agreed behaviour when interstate politics evolved into armed conflict. The idea of distinction, drawing a line between those who were actively part of the fight and those not involved, was central to these new rules of war. Combatants were to show restraint, the wounded were to be treated with compassion, and neutral and impartial humanitarians were to be given access in order to provide protection and medical care.

Here it is worth reiterating that these new rules of war were highly contextual, not only temporally in their links to the emerging state system, but geographically through cultural and religious beliefs. For while the belief that people should be protected from the extremes of war was shared across cultures and civilisations, it was largely guided by local cultural and religious mechanisms. In Europe, the notion of restraint evolved within a profoundly Christian culture. At its most basic level, restraint was linked to moral ideas of mercy and charity, underpinned by a pragmatic commitment to reciprocity, also found in Christian teachings. It also emerged in the “just war” tradition, which established moral restraint on war in part as an effort to justify Christian participation in war (see Kinsella, 2011, pp. 34—35). Dunant’s efforts to establish an international law limiting the conduct of war were essentially framed in these same terms. As Dunant’s Red Cross cofounder Gustave Moynier explained at the time, international humanitarian law remained the product of a Christian civilisation, but justified on the basis of natural law and international positivism (see Cockayne, 2002, p. 604). Thus, in establishing the original Geneva Convention protecting wounded and sick soldiers, a key achievement was to effectively shift the normative basis of restraint in war from moral codes and the canons of the Christian church to the structures and practices of international law and the state. As Megret (2015) explains, “The Geneva Conventions, as paragons of the modern project of regulation of warfare, fundamentally shift the basis for restraint in warfare to an obligation that lies in positive international law as a result of state consent” (p. 683).

It is indeed striking how central this point in time and the experiences of Dunant and his compatriots are to what would become the international humanitarian system decades later. Indeed, the touchstones of humanity and impartiality emerge from the Christian ethos of the era, notably the European traditions of charity and compassion, with Dunant and others framing their ideas in these exact terms. As Barnett (2011) explains, the Geneva committee that established the first Convention was substantially guided by religious feelings and found inspiration in the Gospels, particularly the parable of the “Good Samaritan” (pp. 78-81; see also Forsythe, 2005, pp. 27-28). Dunant, an evangelical Christian, went so far as to describe himself as “an instrument in the hands of God”, while his Calvinist co-founder Moynier “was particularly taken with the possibility that charitable organizations might stimulate (Christian) notions of progress, charity, and humanity” (Barnett, 2011, p. 79). Indeed, this discourse of Christianity

A contested history of humanitarian protection 29 remained central to the humanitarian conversation through at least the turn of the century, when the humanitarian movement began to expand around the globe and the language of universal secularism finally eclipsed the Christian notions of charity and compassion. Though even as late as 1945, then ICRC President Max Huber would talk of Christian mercy and compassion and write of the Gospels and the work of Red Cross (see Steinarcher, 2017).

The humanitarian principles of neutrality and independence can also be seen in Dunant’s experience, notably how he navigated has way across the battlefield and between the opposing French and Austrian armies. For while humanity and impartiality provide the moral ideal and ethical framework of humanity in war, neutrality and independence represent the means of achieving these ends. As Slim (2015) articulates in his examination of humanitarian ethics, this second pair of principles “serve as practical ethical measures to achieve this goal ... in the real conditions of intense political rivalry and competing interests that characterize war” (pp. 65-66). During the battle of Solferino, the Swiss traveller negotiated access using his position as the neutral outsider, and rallied volunteers to assist the wounded and dying from both sides of the battle, free from the influence of the two opposing forces. Later, as a direct result of Dunant’s experiences and advocacy, the first three principles of humanity, impartiality and neutrality were enshrined in the 1864 Convention, the first building block of IHL.3 Thus, at the outset at least, the principles are historically specific, the product of a particular geopolitical context, an interstate conflict with its clear separation of military and civilian in which state sovereignty is inviolable.

This period also saw the emergence of the ICRC, the singular humanitarian agency in the new protection agreement. While it clearly evolved over time, like the laws of war themselves, the humanitarian organisation was predicated on the international state system at a certain point in its evolution. From the outset, it was a European organisation, a product of Western Judeo-Christian) values, despite presenting itself as a secular and global Good Samaritan (Forsythe, 2005, p. 281). Furthermore, the emergence of the ICRC was not in response to the idea of war in general, but as a reaction to a particular European conflict and a particular notion of war and the state. In the tradition of Dunant’s experiences in Solferino, it was created to supplement state action in protecting wounded combatants who were hors de combat, or “outside the fight”. This operational role as a neutral and impartial actor providing relief to the wounded and sick dovetailed well with the rules of sovereignty and methods of warfare of European powers. Indeed, the ICRC emerged as IHL’s principle “norm entrepreneur”, persuading stales to embrace these international limitations of warfare (see Provost, 2007, p. 642). Devised in 1864, this central role in developing, promoting and interpreting the humanitarian norms would become standard practice for the organisation, eventually to be formalised in the 1949 Geneva Conventions.

Dunant’s story and the first Geneva Convention it inspired are just as notable for what they left out. The international laws that emerged from Dunant’s experiences and the set-piece battles that played out in 19lh-century Europe focused on protecting fighters - first wounded soldiers and then shipwreckedsailors and prisoners of war in the coming decades - while the civilian was largely neglected. This, as Best (1994) explains, was in contrast to ideas of earlier jurists, “who were less concerned with what the fighters did to each other than with what they did to the civilians and the property around them” (p. 60). It was also notably different to what the laws of war would become a century later. The relatively brief focus on the combatant reflects the dominant perception of war in that particular time and place, with the state monopolising the use of force, deploying well organised, semi-professional armies across relatively contained battlefields. The civilian was not clearly visible in this space. Indeed, not until 1949 was the civilian formally introduced into IHL. And not until the Additional Protocols of 1977 was the civilian formally defined, and then only in terms of what it was not - a member of the armed forces - creating the binary distinction on which modern humanitarian law rests.

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