Towards a global understanding of the humane treatment of captured enemy fighters

• Author: Suzannah Linton
• Pages: 217-277

FRONTIERS OF LAW IN CHINA

VOL. 12 JUNE 2017 NO. 2

DOI 10.3868/s050-006-017-0014-0

ARTICLE

TOWARDS A GLOBAL UNDERSTANDING OF THE HUMANE TREATMENT OF

CAPTURED ENEMY FIGHTERS

Suzannah Linton*

Abstract The prevailing narrative instructs us that humane treatment of captured

enemy fighters is down to white knights from the western parts of the European

continent with their codes of chivalry, or alternatively, the Swiss businessman Henri

Dunant. This contribution challenges that narrative for overlooking, or being ignorant of,

the way that societies around the world have approached the matter of the captured

enemy fighter. Traces of some of the critical principles about humane treatment that we

see in our present law can actually be found in much older societies from outside of

Europe. A more accurate and representative way of understanding humanitarianism in

the treatment of captured enemy fighters can and must be crafted, with the prevailing

Euro-centric account balanced with practices, cultures and faiths from elsewhere. The

quest to achieve more humane treatment in armed conflict is first and foremost a battle

of the intellect. Narratives and conceptualisations that are more inclusive, recognising

and appreciating of the ways of the rest of the world are likely to be more effective in

communicating humanitarian ideals. This work adopts a new method of approaching the

richness and diversity of the treatment of captured enemy fighters over time and space.

This new framework of analysis uses six cross-cutting themes to facilitate a broader

international and comparative perspective, and develop a more sophisticated level of

understanding. The first theme is how older and indigenous societies approached the

matter of captured enemy fighters. The second focuses on religions of the world, and

what they teach or require. The third section examines the matter of martial practices

and codes of ethics for combatants in certain societies. The fourth category engages with

colonisation and decolonisation, and regulation (or non-regulation) of the treatment of

captives of war. Fifth is the issue of modernisation and the impact it has had on armed

forces and fighters, including on the treatment of captives. The final issue is the shift

* Suzannah Linton, Distinguished Professor, International Law Department, School of Law, Zhejiang

Gongshang University, Hangzhou 310018, China. Contact: suzannahlinton@gmail.com

This study emerged from a summer spent as a Visiting Scholar at the Renmin University of China’s Law

School in 2016. My thanks to Dean HAN Dayuan and Professor LU Haina for making this visit possible and

for their hospitality. I am grateful to my assistant HAO Wanyuan for making my stay seamless and enjoyable.

Thanks to Wedad El-Maalul who kindly reviewed the section on the treatment of prisoners of war in Islam.

Thanks also to the ICRC team in Beijing, for good discussions and allowing me to access relevant materials.

218 FRONTIERS OF LAW IN CHINA [Vol. 12: 217

towards formalised agreements, beginning with the first bilateral agreements and then

the multilateral codification exercise that began in the mid-19th century and continues to

this day. This framework for analysis leads into a final chapter, presenting a fresh and

holistic view on the evolution of prisoner of war protections in the international order. It

provides a different way of looking at International Humanitarian Law, starting with this

effort at a global understanding of the treatment of captured enemy fighters.

Keywords International Law, International Humanitarian Law, capture, enemy, fighters,

captured enemy fighters, prisoners of war, humane treatment, slavery, ransom, exchange,

killing, abuse, ancient societies, indigenous people, Hammurabi’s Code, religion,

Christianity, Islam, Hinduism, Judaism, Buddhism, Sikhism, martial codes, ethical codes,

cultural norms, Japan, India, West Africa, East Africa, Crusades, Western Europe, USA,

Henri Dunant, colonisation, decolonisation, wars of national liberation, Geneva Conventions

1949, Additional Protocol I, Additional Protocol II, context, evolution, modernisation,

codification, global understanding, new perspective

INTRODUCTION .................................................................................................................... 218

I. OLDER AND INDIGENOUS SOCIETIES ....................................................................... 224

II. RELIGION ............................................................................................................... 230

III. MARTIAL CODES................................................................................................... 243

IV. MODERNISATION................................................................................................... 250

V. COLONISATION AND DECOLONISATION CONFLICTS................................................ 255

VI. INTERNATIONAL LAW ........................................................................................... 263

CONCLUSION: TOWARDS A GLOBAL UNDERSTANDING........................................................ 270

INTRODUCTION

Colonization broke up the historical patterns and cut the geographic, economic, legal

and human ties with the empires that preceded it. One consequence of this break was that

Africans did not look upon International Law as a product of their own tradition but as

retrograde colonial interference.1

Scholars in the People’s Liberation Army (PLA) have studied these [traditional

Chinese codes of war] intensively and have produced some commentaries. Whereas in

earlier years, the Army’s military ethics was entirely guided by Marxism, Leninism and the

thought of MAO Zedong, currently the government and the PLA understand that they need

to update their military ethics. As they are reluctant to endorse Western notions, it is

inevitable that they must retrieve it from Chinese traditions.2

With few exceptions (e.g. Egypt and Ethiopia) African countries took no part in the

1 Adamu Ndam Njoya, The African Concept, in UNESCO ed. International Dimensions of Humanitarian

Law, Henri Dunant Institute, UNESCO & Martinus Nijhoff (Geneva/Paris/Dordecht), at 9 (1988).

2 Ping-cheung Lo, Chinese Traditions on Military Ethics, in James Turner Johnson & Eric D Patterson

eds. The Ashgate Research Companion to Military Ethics, Routledge (London), at 411 (2015).

2017] TOWARDS A GLOBAL UNDERSTANDING OF THE HUMANE TREATMENT OF CAPTURED ENEMY FIGHTERS 219

drawing up of the rules of the laws of war. Their voice was heard resoundingly for the first

time during the procedure leading to the reaffirmation and development of international

humanitarian law applicable in armed conflicts, beginning at the International Human

Rights Conference in Tehran from 22 April to 22 May 1968. The Geneva Diplomatic

Conference which met in the years 1974–1977 became the forum at which the states of the

“Third World”…were able to express their fundamental concern for the development of

humanitarian law…International humanitarian law as it stands today is not a law that is

alien to Africans. It is in line with their most ancient and humanitarian traditions.3

The preceding quotations evidence several decades of the frustration of non-European

states with International Law, and the understandable resistance to values and norms that

are seen as foreign and imposed on the rest of the world. This paper addresses the matter

from the aspect of the treatment of captured enemy fighters. The prevailing narrative

instructs us that humane treatment of captured enemy fighters is down to white knights

from the western parts of the European continent with their codes of chivalry,

alternatively the Swiss businessman Henri Dunant. An egregious example is the Office of

the High Commissioner for Human Rights’ Factsheet 13 on International Humanitarian

Law and Human Rights. It suggests that humanitarian concerns in war are a new

development, born in the second half of the 19th century. “In the beginning,” echoing the

words of the Gospel of John in the Holy Bible, the Factsheet takes us to the

enlightenment that fell upon a certain Swiss businessman. “As French and Austrian

armies fought the battle of Solferino in northern Italy in June, 1859, the idea of

international action to limit the suffering of the sick and wounded in wars was born in the

mind of Henri Dunant, a young Swiss citizen.” It then goes on to relate the European-led

19th and 20th century moves towards the normative, and more and more codification.

There are countless such examples, and just one more suffices to prove the point. On the

webpage of the well-intentioned organisation Humanrights.ch/MERS seeking to provide

information on “The History of International Humanitarian Law,” we are told the

following:

The beginning of humanitarian law was in 1864 with the first Geneva Convention; the

Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.

Influenced by one of the bloodiest battles of the nineteenth century in Solférino, Henry

Dunant in 1862 published Un Souvenir de Solférino [A Memory of Solferino].4

This either overlooks, or is ignorant of, the way that societies around the world have

approached the matter of the captured enemy fighter. Some sixty years before the

publication of Dunant’s Battle of Solferino, Bakin Takizawa had written to a Japanese

3 See Njoya, The African Concept, fn. 1 at 10–11.

4 The History of International Humanitarian Law, available at http://www.humanrights.ch/en/standards/

international-humanitarian-law/history/ (last visited Nov. 18, 2016).