Customary International Humanitarian Law

• Jurisdiction: South Africa
• Author: François Bugnion
• Pages: 59-99
• Published date: 22 August 2019
• Date: 22 August 2019
• Citation: (2008) African Yearbook on International Humanitarian Law 59

Customary international

humanitarian law

Fran

c¸

ois Bugnion*

1INTRODUCTION

As far back as one goes in the history of humankind, war is ever-present.

Man enters the stage of history as a warrior. It is as a warrior that he is

depicted on the bas-reliefs decorating palaces and temples. His war

exploits are sung by Homer and Virgil and in the vast Indian epic poem,

the Mahabharata. Armies of terracotta warriors were found around the

tomb of the great emperor Shih huang-ti, who unified China and gave it

a place in history.

Nonetheless, as far back in history as one goes, it is also apparent that

civilizations have endeavoured to establish rules intended to limit the hor-

rors of war.

What took shape over the centuries was a set of unwritten rules which

were respected because they were considered to reflect a certain notion of

military honour embodied in the chivalric codes that are found on every

continent; the rules were respected because they were age-old practices

which had always been upheld and had existed since time immemorial. The

rules were also respected because people sensed that they were vital to

prevent a drift towards unlimited violence. And, ultimately, they were

respected because they were considered to have been decreed by the divi-

nity.

All civilizations have developed rules aimed at limiting violence since

limiting violence is the very essence of civilization. The rules were not

necessarily the same as the ones we know today because they reflected

the needs and values of the civilizations in which they developed. For

* Franc¸ ois Bugnion, Bachelor of Arts and Doctor of Political Sciences, joined the

International Committee of the Red Cross (ICRC) in 1970 and has served the

organization in Israel and the occupied territories, Bangladesh, Turkey and Cyprus,

Chad, Viet Nam and Cambodia. From January 2000 to June 2006, he was Director for

International Law and Cooperation at the ICRC. This article is a personal contribution

and does not necessarily reflect the views of the ICRC. The article was originally

published in French in (2007) 2 Swiss Review of International and European Law /

Revue suisse de droit international et europe´en / Schweizerische Zeitschrift fu¨r

internationales und europa¨isches Recht 165 214, and is reproduced courtesy of the

Swiss Review of International and European Law. English translation by Ms Glynis

Thompson. The author is most grateful to the Swiss Review for authorising this

publication.

59

(2008) African Yearbook on International Humanitarian Law 59

© Juta and Company (Pty) Ltd

example, the ancient Greeks were hardly concerned about the fate of pris-

oners, who were reduced to slavery if not slaughtered.

1

On the other hand,

they attributed considerable importance to the fate of the dead. After every

battle, the victor was duty bound to declare a truce and to allow the

vanquished to collect their dead and give them their last rites.

2

The ancient Hindu law of armed conflict, founded on the principle of

humanity, had many rules limiting violence.

3

The Upanishads taught that

all human beings are the work of one Creator and that all are His children.

4

The ancient Hindus recognized the distinction between military objects,

which could be the targets of attack, and non-military objects, which could

not.

5

Warfare, as a rule, was confined to combatants. Consequently, the

targets of attack were the armed forces, wherever they existed. Neither

cities nor towns were allowed to be ravaged during war, not even while

the armed forces were marching through them.

6

1

Pierre Ducrey Le traitement des prisonniers de guerre dans la Gre`ce antique,Des

origines a` la conqueˆte romaine (1968).

2

Reference may be made to many examples quoted by Thucydides History of the

Peloponnesian War; see, for example, Book I Chapter I para 63; Book II Chapter II

para 79; Chapter III para 92.

3

For a general study of the Hindu law of armed conflict in ancient India, see Harbans S

Bhatia (ed) International Law and Practice in Ancient India (1977); Hiralal Chatterjee

International Law and Inter state Relations in Ancient India (1958); VS Mani

‘International humanitarian law: An Indo Asian perspective’ (2001) 83:841 Interna

tional Review of the Red Cross 59 76; Manoj Kumar Sinha ‘Hinduism and

international humanitarian law’ (2005) 87:858 International Review of the Red Cross

285 294; Nagendra Singh India and International Law vol I (1973); Sekharipuram V

Viswanatha International Law in Ancient India (1925). For an illustrated exposition on

the law of war in ancient India, see ‘War in ancient India’ in ‘A Tribute to Hinduism’;

available at w.atributetohinduism.com/War in Ancient India.htm> (ac

cessed on 23 April 2004).

4

Lakshmikanth R Penna ‘Written and customary provisions relating to the conduct of

hostilities and treatment of victims of armed conflicts in ancient India’ (1989) 271

International Review of the Red Cross 333 348. The Upanishads, one of the sources of

Hindu Law, consist of 112 speculative and mystical scriptures of Hinduism. They are

best known for their doctrine of brahman, the ultimate and universal reality of pure

being and consciousness, and the identification of brahman with atman (the inner self,

or soul), by whose realization man transcends joy, sorrow, life and death, and is wholly

freed from transmigration (Penna op cit note 4 at 335).

5

In the words of Megasthenes, the Greek ambassador of Seleucus Nicator at the Court of

Emperor Chandragupta Maurya at Patalipuram, ‘[w]hereas among other nations it is

usual, in the contests of war, to ravage the soil, and thus reduce it to an uncultivated

waste, among the Indians, on the contrary, by whom husbandsmen are regarded as a

class that is sacred and inviolable, the tillers of the soil, even when the battle is raging in

their neighbourhood, are undisturbed by any sense of danger, for the combatants of

either side in waging the conflict make carnage of each other but allow those engaged in

husbandry to remain quite unmolested. Besides, they neither ravage an enemy’s land

with fire, nor cut down its trees.’ Cited by Penna op cit note 4 at 338 339, who refers to

John W McCrindle Ancient India as described by Megasthenes (1926) 33.

6

We are most grateful to Professor Lakshmikanth Rao Penna of the National University

of Singapore, who kindly gave us valuable insights into the law applicable in ancient

India.

60 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

© Juta and Company (Pty) Ltd

Similarly, the Muslim community had to deal with war from the early

days of Islam; from then on it established rules to determine the methods

and means of combat and to protect the wounded, prisoners and civilians,

places of worship and monasteries.

7

Like the entire Islamic legal system, humanitarian law in Islam is based

primarily on rules taken from The Koran. That legal system of divine origin

establishes, in particular, two basic principles. The first, taken from Sura 2

(‘The Cow’), prohibits Muslims from committing acts of aggression,

8

while

the second, inspired by Sura 5 (‘The Table’), requires them to show respect

for human life.

9

Most Muslim lawyers agree that the humanitarian rules

acknowledged by Muslims are based on those key concepts.

10

Those rules

prohibit subjecting enemy combatants to inhuman treatment, mistreating

prisoners,

11

and killing monks,

12

old people, women and children.

13

7

See, for example,Muhammad ibn al Hasan al Shaybani Kitabal Siyar al Saghir (The

Shorter Book on Muslim International Law), edited, translated and annotated by

Mahmood Ahmad Ghazi, Islamic Research Institute, International Islamic University,

Islamabad (1998). There is an abundant supply of literature on Islam and international

humanitarian law. Among recent publications, reference may be made to Said El

Dakkak ‘International humanitarian law between the Islamic concept and positive law’

(1990) 275 International Review of the Red Cross 101 114; Zidane Meriboute La

fracture islamique : demain, le soufisme ? (2004), in particular at 153 ff (English

translation: Islam’s Fateful Path: The Critical Choices Facing Modern Muslims,

London, IB Tauris & Co Ltd, publication pending); Ameur Zemmali Combattants et

prisonniers de guerre en droit islamique et en droit international humanitaire (1997);

Sheikh Wahbeh al Zuhili ‘Islam and International Law’ (2005) 858 International

Review of the Red Cross 269 283.

8

‘Fight for the sake of God those that fight against you, but do not attack them first. God

does not love the aggressors’; The Koran, translated with notes by NJ Darwood, (1999)

29.

9

’. . . whoever killed a human being, except as a punishment for murder or other villainy

in the land, shall be looked upon as though he had killed all mankind; and whoever

saved a human life shall be regarded as though he had saved all mankind’; ibid at 83.

10

Z Meriboute La Fracture islamique op cit note 7 at 155; Zidane Meriboute

‘Humanitarian Rules and Sanctions in the Major Philosophical and Religious

Traditions’, in Liesbeth Lijnzaad, Johanna van Sambeek and Bahia Tahzib Lie (eds)

Making the Voice of Humanity Heard (2004) 375; Hamad Sultan ‘The Islamic

Concept’, in Henry Dunant Institute (Geneva), UNESCO (Paris), and Martinus Nijhoff

Publishers (Dordrecht/London/Boston) International Dimensions of Humanitarian

Law (1988) 29 39; Bassam Tibi ‘War and Peace in Islam’,in Terry Nardin (ed) The

Ethics of War and Peace Religious and Secular Perspectives (1996) 130 ff.

11

Ameur Zemmali Combattants et prisonniers de guerre en droit islamique et en droit

international humanitaire (1997).

12

See Chaybani, siyar, with a commentary by Sarakhsi, published by Al Munajjid, vol I,

Cairo, Institute of Arab Manuscripts (1971) 43 ff; Zemmali op cit note 11at 109 ff; John

A Williams Themes of Islamic Civilization (1972) 262; Sohail H Hashmi ‘Interpreting

the Islamic Ethics of War and Peace’, in Nardin op cit note 10 at 161. On the protection

of monasteries and synagogues in Islam, see Abou Yousof Ya’koub Le Livre de l’Impoˆt

foncier (1921) 213 ff.

13

See the statements of Mohammed and Omar in Abou Yousof Ya’koub op cit note 12 at

302 ff.; Zemmali op cit note 11 at 110; Sultan op cit note 10 at 37.

CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 61

© Juta and Company (Pty) Ltd