The Transformation of the Laws of War into Humanitarian Law

36 Pages Posted: 27 Dec 2009

See all articles by Mark Antaki

Mark Antaki

McGill University - Faculty of Law

Date Written: December 22, 2009

Abstract

The articulation of crimes against humanity in positive international law is better understood when situated against the broader transformation of the laws of war into humanitarian law. This re-naming of the laws of war does not take place until the late 1970s with the Additional Protocols to the Geneva Conventions. However, this re-naming is made possible by the prior emergence, in the nineteenth century codification of the laws of war, of the principle of humanity as the ground of the laws of war.

Two twin transformations make possible the emergence of humanity as the ground of the laws of war. First, charity, the love of God, is transformed into the sentiment of humanity, the love of man. Aquinas and the scholastics discussed war under the heading of charity. With Grotius and Pufendorf, charity slides into humanity. The transformation is complete with Rousseau. Second, pain is transformed from a potential spiritual good that could bring one closer to God into something unintelligible and unacceptable. For Rousseau, humanity is pity writ large and sympathy, suffering-with, is the “first sentiment of humanity.” Rousseau appears as one of the fathers of the modern laws of war, of humanitarian law. Humanitarian law thus belongs to modern humanitarianism, to what Nietzsche calls “the religion of human suffering.”

Whereas the nineteenth century codification of the laws of war used the twin language of humanity and civilization, the transformation of civilization into a dirty word in the twentieth century made it that much easier for humanity to emerge as the ground of the laws of war, and for the laws of war to become “humanitarian.”

Suggested Citation

Antaki, Mark, The Transformation of the Laws of War into Humanitarian Law (December 22, 2009). Available at SSRN: https://ssrn.com/abstract=1527059 or http://dx.doi.org/10.2139/ssrn.1527059

Mark Antaki (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

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