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ЮРИСПРУДЕНЦИЯ
УДК 339.137.2
Дата направления в редакцию: 31-01-2020 Дата рецензирования: 03-02-2020 Дата публикации: 05-03-2020
Алиев Темирлан
Студент юридического института кафедры международного права, Российский Университет Дружбы Народов, E-mail: aliev-temirlan@inbox.ru
Aliev Temirlan
Student of the law institute of the department of international law
Peoples& Friendship University of Russia E-mail: aliev-temirlan@inbox.ru
ИСТОРИЧЕСКИЕ ОСНОВЫ ЗАЩИТЫ ГРАЖДАНСКОГО НАСЕЛЕНИЯ ВО ВРЕМЯ ВООРУЖЕННЫХ КОНФЛИКТОВ
HISTORICAL BACKGROUNDS OF THE PROTECTION OF CIVILIANS DURING ARMED CONFLICTS
Аннотация (на рус). В статье рассматриваются исторические предпосылки становления международного гуманитарного права в сфере защиты гражданских лиц и гражданского населения в целом, стадии его становления и дальнейшего развития, а также его состояние на сегодняшний день.
Abstract (in Eng). The article discusses the historical background of international humanitarian law in the field of protection of civilians and the civilian population as a whole, the stages of its formation and further development, as well as its current state.
The issue of protection of civilians in armed conflicts had not been addressed on the international plane until 20th century, despite civilians& sufferings during hostilities were not new. Contemporary international humanitarian law has not appeared at a go. It was evolving throughout centuries and is still subject to refinement.
During the history, there have been efforts to modify warfare in order to reduce loss of human life. Sun Tzu, the Chinese strategist and author of the treatise "The Art of War" counseled against attacking cities and large population centers. "Thus, what is of supreme importance in war is to attack the enemy&s strategy; next best is to disrupt his alliances; the next best is to attack his army. The worst way is to attack cities. Do it only when there is no alternative." [15, p. 77-78] Despite it was written in the 6th century B.C., it is recommended for reading today at different
military institutions.
In his orders to his subordinates, the first caliph Abu Bakr (circa 632 AD) claimed: "The blood of women, children and the elderly should not stain your victory. Do not destroy a palm tree, do not burn houses and cornfields, and do not cut down a fruitful tree. You must not slay any flock or herds, save for your subsistence". [6, p. 17]
The position of Thomas Aquinas (13th century) regarding the distinction between a civilian and a combatant was without ambiguity. He clearly stated that the killing of innocents is unacceptable, except in cases of self-defense. [7, p. 27] At the same time, Aquinas said that if the death of an innocent is accidental then there is no shame to a combatant. However, among other things, he laid out three basic conditions, which could justify war: just war must be conducted by a properly established authority, such as a State; war must be waged for the sake of good and just
ends, and not for personal gain (e.g., war "in the interest of the nation" is not justifiable) or as the exercise of power (e.g., for the restoration of some good that was denied, i.e. lost territory; peace must be a central motive even in the midst of violence. [10]
Among other steps towards the protection of those not taking part in the hostilities one can point out the code of chivalry (knight) developed between 1170 and 1220. [14, p.44] Although never put in a single document, it was an informal, moral set of principles for medieval kings princes, landlords and knights altogether. The rules were developed basing on the distinction between the enemy and the innocent. For instance, one of the rules provided that only those who actually participate in war should be treated as combatants; others, regardless of status, are non-combatants. The knights could only fight with other knights and could not use arms against women, children, the elderly, the sick, the weak, or people with mental disabilities. [4, p.24]
Another shift in the development of views regarding protection of civilians occurred in the 16-17th centuries. If before the Church and Christian thinkers developed the concept of Just War and other related principles guiding the conduct of combatants, Early Modern Period marked appearance of new thinkers with fresh ideas towards the notion of "just war". The precondition to such change was the Thirty Years& War. Initially the war between various Protestant and Catholic States in the fragmented Holy Roman Empire, it gradually developed into a more general conflict involving most of the European great powers. One of the most devastating conflicts in the history of humanity which led to the death of eight million people not only as a result of military actions, but also as a result of violence, famine and plague. [2, p.40]
The Treaty of Westphalia, signed in 1648, which ended the Thirty Years& War, firmly reinforced the idea of the secularization of just war. This secularization contributed to introducing the concept of war into the framework of international law. [4, p. 24] Thus, the secular concept of just war replaced the religious.
The most outstanding theorists of this period are Francisco Suarez, Francisco de Vitoria, Hugo Grotius, Samuel Pufendorf and others. They emphasized that the cause of a belligerent does
not affect the duty to follow the law of war. [8, p.147]
The origins of the modern principle of non-combatants immunity is generally attributed to Francisco de Vitoria, who argued that a war against the South American Indians could not be justified unless there was a just reason. [4, p.27]
If Thomas Aquinas admitted the possibility of the infliction of accidental death to an innocent, Hugo Grotius, in his turn, appalled by the horrors he witnessed in different religious wars, stressed the need to prevent the death of innocents even by accident. He claimed: "I observed a lack of restraint in relation to war, such as even barbarous races would be ashamed of ... in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes". [5, p. 733] In addition, he emphasized that "Children to be spared, and Women, unless highly criminal, and also old Men".
Speaking about further attempts in developing regulation of warfare, one can note such a salient document as the Lieber Code signed by U.S. President Abraham Lincoln on April 24, 1863 for humanitarian consideration due to a lack of regulation of the conduct of hostilities and cruel devastation during the Civilian War. The document bears the name of its author - Franz Lieber, the German-American legal scholar and political philosopher. Beginning in 1861, as a professor of history and political science at what became Columbia University, Lieber delivered a series of lectures called "The Laws and Usages of War". He believed that the methods of war should match the ends and that the ends should justify the means. [13]
Despite the norms of the Lieber Code were only mandatory for the U.S. Union soldiers, it had a great influence worldwide and has served as the ground for the law of war. The Code put solid emphasis on the distinction between a combatant and a non-combatant. This rule was fixed in Article 155 of the Code:
"All enemies in regular war are divided into two general classes..., into combatants and noncombatants... The military commander of the legitimate government. distinguishes between the loyal. and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize with the rebellion without positively aiding it, and those who,
ВЕСТИ НАУЧНЫХ ДОСТИЖЕНИЙ.
without taking up arms, give positive aid and comfort to the rebellious enemy without being bodily forced thereto".
In addition, Article 22 says that:
"Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit". [13]
With regard to the precautions that should be taken to protect the innocent from harm during war, article 19 states: "Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences..."
Furthermore, and, perhaps, the most salient provision in the Lieber Code concerning protection of civilians is Article 44, which strictly set down:
"All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking,. all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense". [13]
Other notable steps in developing regulation of warfare have been taken beginning in the second half of the 19th century. The battle of Solferino appalled a businessman named Henry Dunant so much, that he couldn&t pass it by and wrote a book "A Memory of Solferino". Dunant recounts to the readers about the terrifying consequences of that battle and proposed to undertake certain action to avoid similar misery in future. This led to creation of the Red Cross in 1963, which is International Committee of the Red Cross, and soon after - to the adoption in 1964 of the First Geneva Convention for the Amelioration of the
Condition of the Wounded in Armies in the Field. Although the 1864 Convention was designed to protect wounded soldiers, it was also important in terms of protection of civilians, since it laid down principles that would form the basis for the legal protection of non-combatants.
The next notable advance in protection of civilian was adoption of the Hague Convention of 1899. Its Article 46 states: "Family honor and rights, individual lives and private property, as well as religious convictions and liberty, must be respected. Private property cannot be confiscated". Despite it did not directly protect civilians from all effects of war, it was one more step ahead towards further development of such protection.
However, until 1949, there was no full-fledged legal framework for protection of civilians. Hence, in 1949, the first Geneva Convention was amended and complemented with three more Geneva Conventions, the last of which is specifically intended to protect civilians from effects of armed conflicts. Its full name is the Geneva Convention relative to the Protection of Civilian Persons in Time of War. The creation of this document was mostly affected by the atrocities committed during the World War II in which civilian casualties made up around 30 million people worldwide. [1]
One more step has been taken to improve the protection of civilians by adopting two additional protocols to the Geneva Conventions of 1949. These documents have been an attempt, among other things, to solve the issue of responsibility to protect and respect rights and immunity of civilians, and distinguish them from combatants in the different types of armed conflict.
Today the legal framework for protection of civilians is quite large in content, but basic provisions amount to fundamental human rights combined with the principles of the IHL.
Among other things, it is interesting that despite different degree of the development of rules for the protection of civilians in different periods, sentiments regarding this issue were quite similar to each other.
ЭКОНОМИКА И ПРАВО. N 4. 2020 г.
References
© Т. Алиев, 2020
Ссылка на статью: Алиев Т. - Исторические основы защиты гражданского населения во время вооруженных конфликтов // Вести научных достижений. Экономика и право. - 2020. - №4. - С. 154 - 157. DOI: 10.36616/26869837-2020-4-154-157 URL: https://vesünd.m/joumals/economicsandlaw/releases/2020-4/articles?Viewpage=6
