Lakhasly

Law by treaty
In ancient times war was not subject to any control other than that exercised by the
combatants themselves, and any limitations that they might have placed on their own actions
on the battlefield would have been due to military necessity rather than any belief that to
attack civilians or to kill prisoners of war was wrong let alone illegal. The Viking invaders in
the 11th century, for instance, knew no concept of sparing the civilian population from attack
or pillage, and they did not generally protect and release captured enemy combatants. And
there was no reason why they should: no treaties prohibiting brutal acts in battle had been
negotiated between states, nor had there developed a uniform practice among states that
considered themselves civilized to avoid such conduct. In order for such norms to develop,
there had to come into existence a belief shared by a number of independent states that some
limits should be placed on the methods and means of war among themselves—especially if
wars were to be fought between Christian states. (Crusades against the infidel were not
controlled by any similar concern.) In the Middle Ages in Europe the precepts of Christianity
began to provide vague guidelines of conduct on the battlefield. In 1625 Hugo Grotius wrote
On the Law of War and Peace (De Jure Belli ac Pacis), in which he explored the basic
principles of the humanitarian treatment of the victims of war.
If civilians were to enjoy any protection, it would also become necessary clearly to
distinguish them from the combatants. This could come only with the development of a
professional army wearing a distinctive uniform and taking upon itself a code of chivalry.
Certain actions would then become unchivalrous and would lead to heavy sanction from
brother soldiers. Chivalry, however, did not protect the common soldier or the ordinary
civilian, for whom notions of chivalry were considered inappropriate. Protection by rule of
law for the lower orders had to await the acceptance of principles of humanity that took a
distinctive form in the 19th century.
Until the 20th century there existed no principle of international law that limited the right of
states to go to war. War was seen as an integral part of state sovereignty to be entered into for
political reasons. There were, however, attempts to distinguish wars that were considered
“just” from those which were “unjust.” This was a Christian doctrine formulated by, among
others, St. Augustine, but it was an extremely flexible one, enabling a state to describe its war
as just at its own discretion. As a corollary, the enemy state would therefore be fighting an
unjust war, and its soldiers could be treated in any manner by the state claiming to be fighting
a just war. It was more than likely that all states involved in a single conflict would claim to
be fighting for a just cause and would show an attendant lack of concern for the protection of
those unable, through wounds or capture, to defend themselves.
The development of modern weapons that could cause unnecessary suffering to combatants,
and the great strides made in battlefield medical care, led to a growing awareness that
international cooperation was required to protect the wounded and sick. Henri Dunant, a
Swiss citizen and founder of the Red Cross, was preeminent in leading a number of states to
conclude the first Geneva Convention in 1864 to protect the wounded and sick. But the first
attempt to codify the laws of war was drafted by Francis Lieber, a college professor in New
York City. Promulgated to Union forces by President Abraham Lincoln during the American
Civil War, the Lieber code was to have a profound effect on subsequent codifications of the
laws of war. In 1868 the Declaration of St. Petersburg prohibited the use of explosive
projectiles weighing less than 400 grams, while in 1899 two major treaties were concluded at
The Hague, one concerning asphyxiating gases and another concerned with expanding
bullets. The second Hague conference, in 1907, proved to be a milestone, producing 13
separate treaties. In 1925 the Geneva Gas Protocol was signed, prohibiting the use in war of
asphyxiating, poisonous, or other gases and of bacteriological methods of warfare. This was
followed in 1929 by two further Geneva Conventions, dealing with the wounded and sick and
with prisoners of war. Following World War II yet another conference produced the four
1949 Geneva Conventions dealing, respectively, with the wounded and sick on land, with the
wounded, sick, and shipwrecked at sea, with prisoners of war, and with civilians. Further
treaties followed, including the 1954 Hague Convention on the Protection of Cultural
Property, the 1977 United Nations Convention on Military or Any Other Hostile Use of
Environmental Modification Techniques, and the two 1977 Protocols to the Geneva
Conventions of 1949, extending the terms of the conventions to wars of national liberation
and civil wars.