EARLY CUSTOMS OF WAR | IHL

DESCRIBE Pre-modern and Ancient Practices

• Before formal international agreements, war was governed by customs, traditions, and religious norms that emphasized mercy and protection.

3 Examples of Pre-modern and Ancient Practices

• war was governed by customs, traditions, and religious norms that emphasized mercy and protection

• Ancient Civilizations (e.g., Mesopotamia, India, China):Codes like the Code of Hammurabi and Laws of Manu set limits on conduct in war.

• Islamic Law (Sharia) and Christian Just War Theory: Emphasized humane treatment of prisoners and civilians.

• Customary Rules Among Tribes and Kingdoms: Unwritten but widely respected rules of engagement, truces, and treatment of the wounded.

Importance of custom laws in relation to IHL

• These customs laid the moral and cultural foundation for modern IHL.

Spartan’s Rite de Passage

• “Helot Killing”

  

early custom in Mesopotamia

• Babylonian King Hammurabi (1792-1750 B.C.)  → Code of Hammurabi

  • (eye-for-an-eye justice) Law 26 

early custom in ancient greece

• Had a reputation for its government and its clear laws and customs. 

• The Greek law of war was indifferent towards humanitarian ideals, mercy, and the protection of noncombatants

• 

early custom in India

• Law of Manu ; Brahamanism 

• Ethical Conduct in war: “  Manu 7.90–93 that one must not use deception, nor attack the innocent, and respect those who surrender.” 

early custom in China

• Sun Tzu’s Art of War :  restrictions of warfare and its effects on the people and the economy.

• There are no winners in prolonged warfare as it depletes resources and drives economy to ruin 

early custom in Middle Ages

• St. Augustine and St. Aquinas and Francisco de Vitoria: JUST WAR → war as a right as long as there is a good conscience.

Islamic Law (Sharia)

• Islam ; “al-silm” and “istaslama” which means peace and surrender.

• Sharia the settled way to something

Sources of Sharia Law 

Christian Just War Theory 

• justified by a moral or legal tradition. It presumes that there are legitimate uses of war but also sets moral boundaries on the waging of war.

  • Realist: war is hell, no necessity to put boundaries to control it

  • Pacifist: if war is hell why do we wage it in the first place? 

  • Just war Theorist : middle ground, just way to go about the war 

• St. Augustine of Hippo

  • jus ad bellum: the right to war, in an attempt to refute Christian pacifism.

    •  1. War should be punitive: to punish sinners 

    • 2. Wars must be properly authorized: wars must be waged/declared by a King or a God

Jus Ad Bellum vs Jus in Bello

[JAB] Refers to the conditions that is considered as PERMISSIBLE	[JIB] Refers to the CONDUCT of warfare.

Customary Rules Among Tribes and Kingdoms

• Customary rules existed long before codified laws.

  • Rooted in honor, mutual respect, and cultural values

  • Basis for modern International Humanitarian Law (IHL)

  • Still used to inform humanitarian practices in non-state armed conflicts today.

• Customary Rules: Unwritten rules shared by tribes and kingdoms

  • Based on tradition, honor, mutual respect

  • Governed: Rules of engagement, Treatment of prisoners, Respect for truces, Aid for the wounded

Philosophical Foundations

Contemporary Relevance of Customary Law

The Hague Conventions (1899, 1907):	Incorporated battlefield customs like humane treatment of prisoners and prohibition of unnecessary suffering
The Geneva Conventions (1864–1949):	The Geneva Conventions (1864–1949): Formalized long-held customs of caring for the wounded and protecting civilians during armed conflict
Rome Statute of the ICC (1998)	Codified war crimes that reflect historical prohibitions grounded in customary law (e.g., pillaging, child soldiers)