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The Art of War: the Origin of the First Principles of International Humanitarian Law

“Here come the artillery, following the cavalry, and going at full gallop.
The guns crash over the dead and wounded, strewn pell-mell on the ground.
Brains spurt under the wheels, limbs are broken and torn, bodies mutilated past
recognition — the soil is literally puddled with blood, and the plain littered with
human remains.”
— Dunant, H.1

On the eve of June 24, 1859, a young, wealthy banker by the name of Henry Dunant
chanced upon a town ravaged by war.2 A battle had been waged for 15 hours3 and ended with
6,000 dead and 30,000 wounded soldiers.4 One-third of the wounded went to Castiglione della
Pieve, where it quickly became apparent how vastly unprepared and inadequate the relief efforts
were. Field hospitals were set up anywhere they could be — “in farms, houses, churches,
convents, and even in the open under the trees”5 but even then, there weren’t enough medical
supplies, doctors or even food and water to go around. Dunant spent the next few days in Chiesa
Maggiore, a church set up as a makeshift hospital, to care for the 500 injured soldiers there. 6 He
was so moved by his experience that he later proposed that a society of trained volunteers be
established to care for the wounded in times of war. This marked the birth of a contemporary
humanitarian organization: the Red Cross.

1 JEAN HENRY DUNANT, A MEMORY OF SOLFERINO 19-20 (International Committee of the Red Cross, 1959).
2 François Bugnion, From Solferino to the Birth of Contemporary International Humanitarian Law, THE
INTERNATIONAL COMMITTEE OF THE RED CROSS (Oct. 31, 2019, 10:00 PM), https://www.icrc.org/en/doc/assets/
files/other/solferino-bugnion-icrc.pdf.
3 DUNANT, supra note 1, at 16.
4 Bugnion, supra note 2 citing Dr. J.-C. Chenu, Statistique médico-chirurgicale de la Campagne d'Italie en 1859 et
1860, Librairie militaire de J. Dumaine, Paris, 1869, vol. II, pp. 851-853.
5 DUNANT, supra note 1, at 38.
6 Bugnion, supra note 2.
 However, many mistakenly assume that international humanitarian law (IHL) began with
the idea formulated by Dunant in his 1862 publication of A Memory of Solferino. While the
contemporary laws of armed conflict did originate from Dunant’s own experience of the
aftermath of battle, history is by no means a stranger to war. In the same way that his “battle
scars” paved the foundation for the International Committee of the Red Cross, the laws of war
have been born by war itself. For as long as man has waged war, so have rules, written or
unwritten, governed the conduct of combatants. 7 Some began as unwritten rules of conduct,
while others were codified into bilateral treaties8 or rules issued by States themselves. 9

“Taken as a whole, 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
determining 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.”10 For example, generals in the Ancien Régime would inform each
other of the position of their medical units and agree not to attack the same.11 Ancient texts such
as the Mahabharata, the Bible and the Koran chronicle some of the earliest, albeit fragmented
rules of war.12 Even contemporary works such as Shakespeare’s Henry V allude to the “law of
arms.”13 In fact, as early as 1762, Jean-Jacques Rousseau propounded one of the most
fundamental principles of the laws of war — that men who have laid down their weapons and

7 International Humanitarian Law: Answers to your Questions, THE INTERNATIONAL COMMITTEE OF THE RED
CROSS (Oct. 31, 2019, 9:00 PM), https://www.icrc.org/en/doc/assets/files/other/icrc_002_0703.pdf.
8 JEAN PICTET, COMMENTARY ON THE GENEVA CONVENTIONS OF 12 AUGUST 1949 (1952).
9 International Humanitarian Law: Answers to your Questions, supra note 7, at 9.
10 Id.
11 Bugnion, supra note 2 citing BOISSIER, op. cit., pp. 141-153.
12 International Humanitarian Law: Answers to your Questions, supra note 7, at 9.
13 William Shakespeare, Henry V, Act IV, scenes 6 and 7.
surrendered are no longer legitimate military objectives.14 This principle is now reflected in the
1977 Protocols Additional to the Geneva Convention. 15

However it may have started, IHL confronts the harsh reality that although States may
denounce the resort to war, war is still often used as a tool in the modern world. States wage war
for many different objectives, such as self defence16 or as a means to national liberation17 . IHL
does not concern itself with the legality of the use of force but of extending assistance to victims
of war. The idea behind IHL remains the same — to mitigate the suffering arising from an armed
conflict. Dunant poignantly asked at the end of his book, “would it not be possible, in time of
peace and quiet, to form relief societies for the purpose of having care given to the wounded in
wartime by zealous, devoted and thoroughly qualified volunteers?”18 This prompted the drafting
of the first Geneva Convention of 1864, which embodied the principle that wounded and sick
members of armed forces were to be cared for, not finished off. It further propounded the idea
that members of medical and relief operations were to be protected against attack, in order for
them to achieve their humanitarian objectives.19

It is worthy to note that IHL has developed and grown with every war that has dotted our
history. It has been both its strength and its weakness. IHL has continuously evolved to address
the new, inventive ways of destruction that modern society has created but always after-the-fact.
Allow me to illustrate: In 1859, Dunant witnessed the untold suffering of wounded soldiers in
Solferino and in 1864, the Geneva Convention was drafted to address the needs of wounded

14 International Humanitarian Law: Answers to your Questions, supra note 7, at 7.

15 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), art. 48, 8 June 1977, 1125 UNTS 3; Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II), art. 13, 8 June 1977, 1125 UNTS 609.
16 U.N. Charter art. 51.
17 G.A. Res. 2105 (XX) U.N. Doc. A/RES/2105(XX) (Dec. 20, 1965).
18 DUNANT, supra note 1, at 115.
19 PICTET, supra note 8, at 24.
soldiers. More than 50 years later, World War I saw the use of chemical and biological weapons
on an unprecedented scale20 and 7 years later, the 1925 Protocol for the Prohibition of the Use of
Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare was
adopted.21 In the Second World War, the number of civilian casualties shocked the world so
another Geneva Convention was adopted for the protection of civilians.22

It is clear that the 1864 Geneva Convention jumpstarted the international humanitarian
movement23 and what was once a principle limited to protecting wounded soldiers, grew to
extend its reach to other victims of war: “the shipwrecked, prisoners of war, and finally,
civilians.”24 Time and time again, IHL has attempted to evolve with modern warfare. However, it
always seems to be one step behind. Pictet has posited that one inherent weakness of the Geneva
Conventions is that “it forms part of the laws of war” and that war threatens to trample on the
rules of armed conflict under the guise of necessity. He goes on further to say that such weakness
can be compensated by the fact that IHL deals with a loftier interest — that of “safeguarding the
lives and dignity of human beings.” 25 Indeed, it is a constant, uphill battle, but one that must be
fought nonetheless.

20 International Humanitarian Law: Answers to your Questions, supra note 7, at 11.

21 How does IHL regulate the means and methods of warfare?, THE INTERNATIONAL COMMITTEE OF THE RED
CROSS (Oct. 31, 2019, 9:20 PM), https://blogs.icrc.org/ilot/2017/08/13/ihl-regulate-means-methods-warfare/.
22 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: https://
www.refworld.org/docid/3ae6b36d2.html [accessed 1 November 2019].
23 PICTET, supra note 8, at 24.
24 Id. at 25.
25 Id.