Ordinances and Articles of War before the Lieber Code, 866-1863: the long pre-history of international humanitarian law

Heuser, B. (2019) Ordinances and Articles of War before the Lieber Code, 866-1863: the long pre-history of international humanitarian law. In: Gill, T. D., Geiß, R., Krieger, H. and Paulussen, C. (eds.) Yearbook of International Humanitarian Law, Volume 21. T.M.C Asser Press, pp. 139-164. ISBN 9789462653429 (doi: 10.1007/978-94-6265-343-6_5)

Abstract

Key textbooks and reference works on international humanitarian law treat it as though it had not existed before the American Lieber Code, a set of ordinances for conduct in war, was adopted unilaterally in 1863. The Lieber Code, however, was only one in a series of such ordinances which can be traced back in Europe at least to the ninth century. These were indeed established norms and traditions, as the application of the four criteria listed in Article 38(1) of the Statute of the International Court of Justice show: they were applied by (here: military) tribunals and other law courts; they were treated as customary law (defined in in the Statute of the International Court of Justice as “international custom, as evidence of a general practice accepted as law”); they were seen as “general principles of law recognized by civilized nations”; and finally, they were discussed in “judicial decisions and [in] the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” International humanitarian law, thus, has its roots in Europe, and has a far longer pedigree than is generally assumed.

• Item Type: Book Sections
• Additional Information: Supported by a visiting professorship of the University Paris II Pantheon-Assas.
• Keywords: Ordinances, ius in bello, treatment of civilians, military tribunals, military discipline, Middle Ages, early modern history.
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Heuser, Professor Beatrice
• Authors: Heuser, B.
• Subjects: K Law > KZ Law of Nations; U Military Science > U Military Science (General)
• College/School: College of Social Sciences > School of Social and Political Sciences > Politics
• Publisher: T.M.C Asser Press
• ISBN: 9789462653429
• Copyright Holders: Copyright © 2020 T.M.C. Asser Press and the authors
• First Published: First published in Yearbook of International Humanitarian Law, Volume 21: 139-164
• Publisher Policy: Reproduced in accordance with the publisher copyright policy