The Development Of Humanitarian Thought And The Practice Of States Throughout

The Ages
Antiquity

DEVELOPMENT AND PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW

The development of humanitarian thought

And the practice of states
throughout the ages1

We are aware today that law follows events more often than it precedes them. We may
also say that one of the fundamental elements of law is its continuity and permanence,
since it is usage, which gives it form. It is for this reason, although we are not always
conscious of it, that history holds so large a place in the study of legal disciplines.

Let us then outline the evolution of humanitarian thought through the ages and see what
events shaped the law whose study we are undertaking.

To protect man against the evils of war and arbitrary treatment is not a new idea.
Springing up long before the dawn of history, it has grown steadily more powerful, and
today has become a tidal wave.

The efforts, which it has engendered, keep pace with the rise of civilization, to which it is
inseparably bound. Like civilization itself, it has gone through periods of sudden
acceleration, of stagnation, and of setbacks, marking like milestones its journey through
history.

Let us be clear that all these successes and reverses are no more than episodes in the
formidable struggle which has been carried on from the very beginning of human society
between those who wish to preserve, unite and liberate mankind and those who seek to
dominate, destroy or enslave it -a manifestation of the eternal opposition between 'eros'
and 'thanatos', complementary and closely bound as they are to one another.

The review we propose to make will demonstrate that violence can be bridled, suffering
attenuated and unnecessary death vanquished. We shall also see how long and arduous is
the road leading 'to that universality without which nothing great and lasting can be
constructed.

1. Antiquity

1
The historic elements in this chapter come mainly from the works of Mr. I. Harding, Mr. G. Fehr, Mr. P.
Boissier, Mr. H. Coursier and Mr. G. Draper, cited in the bibliography.
The roots of humanitarian law are very much deeper than some European authors with a
narrow view of matters had long believed, content as they were to situate its origins in the
Middle Ages. In reality, the laws of war are as old as war itself, and war is as old as life
on earth.

Modern naturalists, studying the vaguely defined mentalities of the animal world, have
even perceived the rough outlines of rules for combat. Among individuals of the same
species, for example, the aggressive instinct does not usually reach the point of killing the
antagonist. Single combat follows particular patterns: deer fight only with antlers against
antlers, and when two wolves or two dogs fight, the one who knows he is losing will give
up -and sometimes even offer a form of surrender, exposing his throat to the victor, who
abstains from the fatal bite.2

In the earliest human societies, what we call the law of the jungle generally prevailed; the
triumph of the strongest or most treacherous was followed by monstrous massacres and
unspeakable atrocities. The code of honour forbade warriors to surrender; they had to win
or die, with no mercy. Yet, even in this period, especially among sedentary peoples, we
find traces of a desire to attenuate the horrors of combat. Archeologists have discovered
that the wounded in great battles during the Neolithic epoch were cared for; many
skeletons give evidence of fracture reductions and even trepanations.

The study of savage tribes existing in our own time gives some insight into the nature of
primitive man at the dawn of society. In Papua, where such tribes are constantly at war
with one another, an adversary is always warned in advance when active hostilities are
planned, and the fighting does not begin until both armies are ready. Arrowheads are not
barbed, so as to avoid causing too much injury. A battle stops for 15 days as soon as a
man is killed or injured, and this truce is so well respected that sentries on both sides are
withdrawn.

Taken as a whole, wrote Quincy Wright, the war practices of primitive peoples illustrate
various types of international rules of war known at the present time: rules distinguishing
types of enemies; rules defining the circumstances, formalities and authority for
beginning and ending war; rules describing limitations of persons, time, place and
methods of its conduct; and even rules outlawing war altogether.3

We may also cite, more specifically, the equal chances accorded to the participants in
single combat -the origin of the laws of chivalry the immunity offered to a foreign guest,
even an enemy, and to those who took refuge in temples. Some authors believe these
customs can partly be explained by fear that the gods or the spirits of victims might
wreak vengeance or by a desire to restore normal relations with a neighboring tribe.

How were such things in the great civilizations of antiquity, from 3,000 to 1,500 years
before our era? Their economies were based largely on slavery, sometimes practiced on a

2
G. Fehr.
3
A Study of War, 1942.
large scale, as the only means possible for irrigation of desert lands. Entire peoples were
thus subjected to slavery, to work the soil and to erect the huge constructions at whose
vestiges we still marvel. This brought about genuine progress, even though we find the
institution of slavery detestable, for it meant that the lives of captured enemies were more
often spared.4 So it is, that something good for mankind ray result from a material
interest, however sordid it may be.

Examples of humanity, provided by some monarchs and by some nations, were all the
more remarkable for being rare. First like solitary flashes of distant lightning in the
blackness of night, they were to become a widening glow, enough to bring light to the
whole of the world. Finally, the growth of cities, the organization of nations and the
development of relations between peoples, about 2,000 B.C., gave rise to the first rules of
what was later to be called international law.

Among the Sumerians, war was already an organized institution, characterized by

declarations of war, probably possibilities for arbitration, immunity for messengers from
the enemy and finally by peace treaties. Hammurabi, king of Babylon, proclaimed the
famous code which bears his name, beginning with the words, 'I establish these laws to
prevent the strong from oppressing the weak'. It was customary to release hostages
against the payment of ransom.

The ancient Egyptian Culture was marked by consideration for one's fellow beings. The
'Seven Works of True Mercy' instruct its readers to 'feed the hungry, give water to the
thirsty, clothe the naked, shelter the traveler, free the prisoners, treat the sick, and bury
the dead'. A commandment dating from the second millennium declares, 'You should also
give food to your enemy'. A guest, even an enemy, must not be harmed.

The civilization of the Hittites, rediscovered by archeologists little more than a century
ago, was found to have had a remarkably humane manner of conducting warfare. The
Hittites also had a code of laws, based on justice and integrity. They too signed
declarations of war and treaties of peace. When enemy cities capitulated, their inhabitants
were usually not harmed. Cities which resisted were dealt with more severely, but even
then it was exceptional for them to be destroyed and for their people to be massacred or
reduced to slavery. This leniency was in sharp contrast to the cruelty of the Assyrians,
whose victories were attended by revolting atrocities.

A war between the Egyptian and Hittite empires was ended by a peace treaty in 1269
B.C., notable for its moderation, and respect for justice, which opened an epoch of
harmony and friendship between the two powers.

In the first millennium before our era, new civilizations were flowering in Asia. Whereas
Hinduism had tended to leave it to each individual to work out his own destiny,
Buddhism arrived with a mission of compassion, advocating pity as a spur to mutual
assistance. Lao Tzu declared that man had no value except in service to others and
Confucius preached a practical kind of altruism based on solidarity and intelligence.
4
G. Fehr.
Meh-ti arrived at a universal concept of love as a source of mutual advantage.5
Unhappily, in every land and at every time, people have been unwilling to put these
moral precepts into effect.

Among the Persians, Zoroaster taught tolerance and in the same period Cyrus was noted
for treating wounded Chaldeans in the same way as he did his own soldiers.

In the historical books of the Old Testament, tales of carnage abound. It was the Lord
who ordered the bloodshed and forbade those coming to the Promised Land to have any
dealings with their enemies. Even at that time, however, the law of the talion constituted
a limitation on violence, as it demanded only an eye or a tooth as punishment, and not
death. Other passages in the Bible, in sharp contrast to those referred to above, told the
Israelites not to kill enemies who surrendered, to show mercy to the wounded, to women,
children and old people. Prisoners of war were enslaved however, in accordance with the
customs of the time.

The ancient texts of India are also interesting and significant. Both the Mahabharata epic
and the rules embodied in the legends of Manu, the first man, lay down principles for
warriors that seem far in advance of their time: warriors are forbidden to kill enemies
who are disabled and those who surrender; they must send the wounded back home after
they are healed. Some provisions are amazingly similar to those in the Hague Regulations
of 1907 on the laws and customs of war. Thus, for example, not all means of combat
were permissible: all barbed or poisoned weapons were forbidden, along with flaming
arrows; requisitions of enemy property were regulated, as were the conditions for
detention of prisoners; it was forbidden to declare that no quarter would be granted.6

Another generous attitude was that of the Indian emperor Asoka, 'the Benevolent', who
ordered his soldiers to respect the enemy wounded and the religious sisters who treated
them.

Some of the cities of ancient Greece provide admirable examples of organized society.
Reason was taking the place of mysticism and we can perceive the beginning of the
concept of justice as an aspect of. Natural law -an ancestor of what we know today as
human rights.

Even as early as the Iliad, Homer described a war which was not completely lacking in
fair play, a war with truces and one marked by respect for the enemy dead. Yet, what
horrors there were in the slacking of Troy! Alexander the Great treated the vanquished
humanely, spared the family of Darius and ordered that the women be respected.
Nevertheless, in ancient Greece, a defeated or captured enemy became the property of the
winner, who could kill or enslave him as he chose.

There is nothing more disconcerting to the modern mind than the recognition that the
great thinkers of the Hellenic world, whose civilization we admire so much, cheerfully

5
Jean-G. Lossier, Les Civilisations et le service du prochain.
6
S.V. Viswanatha, International Law in Ancient India, 1925.
accepted the institution of slavery, which angers and disgusts us. Plato for example
refused to recognize that slaves, any more than barbarians, possessed any human dignity,
and Aristotle regarded servitude as a natural phenomenon. In the same century, however,
Alcidamas proclaimed that, 'Divinity has made all men free and nature has made no man
a slave'.

In the field which concerns us more directly, Alexander of Isiu made a prophetic
statement which was eventually to become the very basis of the law of war: 'To destroy
the objects of contention in a war whilst leaving the war itself in existence was the act of
a madman'.7 After the Messenian revolt was put down, however, the Spartans killed the
men and made slaves of the women.

The kinship of all the members of the human family burst into daylight, at least for some,
when Alexander the Great broadened the horizon of the Greeks to the distant boundaries
of his conquests. This made possible the development of a new philosophical approach,
Stoicism, opening a new era in which the concept of humanity had to be reckoned with as
a major guideline.8

The Stoic school, founded by Zeno shortly after 310 B.C., reasoned as follows: Every
living being is permeated by love for itself. This love then reaches out to immediate
progeny. Then it is expanded by reason, in concentric circles, with the individual as the
center, to take in direct relations, fellow citizens and ultimately the whole of humanity,
including enemies. Relations with the other are assimilated to relations with the self.
The equation 'stranger equals barbarian' is abolished.

It was war which founded the power of Rome. For 700 years, from its beginnings to its
final conquests, the temple of Janus, opened at the outset of hostilities, was closed only
twice. Thereafter however, Roman law spread across the world the benefits of a peace
which lasted for several centuries.9

The Romans also had a genius for organization. Thus, every cohort of 500 to 600 men
had at least one doctor and each legion, composed of 10 cohorts, had a medicus legionis,
what we might call today a chief medical officer.

Rome reigned by force, organization and law. Ubi societas, ibi jus. Among the Romans,
law went through an extraordinary development - but the law stopped at the frontiers. Jus
naturale applied only to Roman citizens. Jus gentium covered aliens in Rome and did not
have its later meaning of international law.10 It was a conceded and unilateral law.

Enemy peoples were simply outside the law. The vanquished were at the mercy of the
conqueror who was generally perfidious and implacable. At Carthage, nothing and no one

7
Polybius, XVIII, Chapter 3. cited by I. Harding.
8
G. Fehr.
9
H. Coursier.
10
In the Institutes of Justinian, jus gentium is defined as the totality of the rules established among men by
natural reason (quod naturalis ratio inter homines constituit).
was spared. Captured soldiers and civilians were treated with ignominy and were often
strangled to death after the triumphal procession. Those who were not killed were sold as
slaves. There were of course acts of mercy. In the third century B.C. Pyrrus, king of
Epirus, after defeating the Romans at Heraclea, ordered the enemy wounded to be cared
for. Scipio Aemilianus did likewise.

The fate of slaves continued to be a miserable one. They had no rights and were often
treated with cruelty, especially when they worked in groups. In 185 B.C., after an
uprising of slaves at Apulia, 7,000 of them were crucified.

At the dawn of the Pax Romana, with world conquest completed, the Stoic doctrine
gained some eminent advocates, including Seneca and Cicero, and entered what might be
called its golden age. Its adherents proclaimed the equality of all men and denounced
slavery. They affirmed that war did not break all the bonds imposed by law. They
replaced the saying, homo homini lupus with the slogan homo homini res sacra.11 For the
ancestral vae victis! they substituted such heart-warming phrases as homo sum et humani
nihil a me alienum puto12 and hostes dum vulnerati fratres. More and more people sought
security in respect for the law and in mutual tolerance.

Marcus Aurelius, who prolonged this golden age, spoke in terms which were not
common in his time: What conforms to the nature of a man is good and useful for
him...As an Emperor, Rome is my city and my country, but as a human being, the whole
world is my country. Only what is good for both of these societies can be good for me.

However, as usual, practice fell far short of the counsel of the wise men. Progress was
slow, and even after it became Christianized, the Roman world did not completely
abandon the harsh treatment of its enemies, before it was itself overrun by the barbarians.
Theodosius, for example, in the year 390 of our era, had the throats of 7,000 persons cut
at Thessalonica, without distinction of age or sex, after rioting in which a few soldiers
had been killed. For this, St. Ambrose, Bishop of Milan ordered him to do penance and to
issue an edict providing a lapse of 30 days between the imposition of a death penalty and
its execution, 'so that passion would subside and reason take its place'. Theodosius
yielded and made his apologies.13

We should also mention at this point that we owe to the Romans and to the Stoic
philosophers the idea of the 'just war' which was to be revived during the Christian
middle ages with terrible consequences. With the best of intentions, the philosophers
postulated that one must not make war without justa causa, in other words only in
defence or seeking to redress a wrong. A college of priests -fetiales -would be called on
to certify that a projected campaign would be a bellum justum et pium. Conquerors have
always sought to justify their conquests and the crushing of their adversaries on religious
and moral pretexts. The Romans did so with exceptional hypocrisy.14

11
Seneca
12
Terence
13
H. Coursier
14
I. Harding.
From this brief survey of antiquity, we see that the ancient civilizations of Asia and
Europe, in exerting their influences upon one another, all contributed to the birth and
development of humanitarian law.