War Crimes Law Comes of Age: Essays

By Theodor Meron | Go to book overview

I
Medieval and Renaissance Ordinances of War: Codifying Discipline and Humanity

Medieval ordinances of war were issued either by kings for the campaigns in which they happened to be engaged, or by commanders- in-chief in accordance with the authority granted to them in their commissions from their kings. The ordinances were not promulgated in a void. On many questions they restated the customary jus armorum, as transmitted orally between heralds and other experts, as described by such writers as Honoré Bouvet, Giovanni da Legnano, and Christine de Pisan, and as applied by the courts. Several of the ordinances, as I shall show, mentioned customary law as a residuary source to be applied in cases for which explicit provision was not made.

Offenders were judged in the court of the Lord High Constable and the Lord Marshal, in lower courts of constables and marshals, and, in much later periods, in courts martial. In cases of great importance, prominent defenders were tried before the Parliament.1

This essay explores in greater detail the development, from the beginning of the thirteenth century until the death of Hugo Grotius ( 1645), of those provisions of some ordinances of war which went beyond purely disciplinary or tactical matters, or such matters as the division of ransom and spoils of war. Of course, such disciplinary orders as were directly relevant to the protection of the population and the treatment of prisoners will be considered. I shall focus on the protective provisions of the ordinances, norms that articulated principles of humanity, and other rules that shaped the evolving law of war, leaving aside jurisdictional provisions. Not surprisingly, in later ordinances the balance shifted in some measure from discipline to humanity.

Prior to the nineteenth century, law of war matters were governed by either national ordinances or bilateral treaties. Indeed, national ordinances were the principal means for developing and codifying the law of war. The first multilateral agreement was the (first) Geneva Convention

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1
Francis Grose, Military Antiquities52-7 (vol ii, 1788).

-1-

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