The Laws of War and Traditional Cultures: A Case Study of the Pacific Region∗

∗ The author would like to acknowledge the many people involved in this project and in particular to thank Letitia Anderson and Nicole Hogg. This piece is based on a paper given by the author on behalf of the ICRC at the Commonwealth Red Cross/Crescent International Humanitarian Law Conference held in Wellington in August 2007.

Abstract

This article reflects upon the process of ascertaining whether there is any traction between modern principles of international humanitarian law (IHL) codified in specific treaties and customary law, and traditional, cultural practices in warfare. Exploring the dangers and benefits of research of this nature, the article highlights some of the findings from a study based in the Pacific region.

∗ The author would like to acknowledge the many people involved in this project and in particular to thank Letitia Anderson and Nicole Hogg. This piece is based on a paper given by the author on behalf of the ICRC at the Commonwealth Red Cross/Crescent International Humanitarian Law Conference held in Wellington in August 2007.

Notes

∗ The author would like to acknowledge the many people involved in this project and in particular to thank Letitia Anderson and Nicole Hogg. This piece is based on a paper given by the author on behalf of the ICRC at the Commonwealth Red Cross/Crescent International Humanitarian Law Conference held in Wellington in August 2007.

1 Provost, R. (2006) The international committee of the red widget? The diversity debate and international humanitarian law, Israel Law Review, 1318, p. 39.

2 Geneva Convention for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (First Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (Third Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (Fourth Geneva Convention). All entered into force 21 October 1950.

3 Additional Protocols to the Geneva Conventions of 12 August 1949, entered into force 7 December 1978.

4 The fundamental principle of distinction can be found throughout international humanitarian law. In particular, Additional Protocol I, op. cit., n 3, Article 48 states: ‘the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives’. Proportionality is found in many articles including Additional Protocol I, op. cit., n 3, Article 51(5)(b) which prohibits attacks that cause damage ‘excessive in relation to the concrete and direct military advantage anticipated’. See also Article 51(4). Additional Protocol I, op. cit., n 3, Article 35(1) states: ‘In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited’.

5 This slogan was coined by the International Committee of the Red Cross as a tool for communicating international humanitarian law.

6 For an account of various ancient laws of war see: McCormack, T. (1997) From Sun Tzu to the Sixth Committee: The Evolution of International Criminal Law Regime, in T. McCormack and G. Simpson (Eds) The Law of War Crimes (Kluwer Law International), p. 33.

7 See Durham, H. (2007) IHL and the Gods of war: the story of Athena versus Ares, Melbourne University Journal of International Law, 8(2), pp. 148–158.

8 Writings by the Chinese warrior Sun Tzu prescribe a number of humanitarian limitations on the conduct of hostilities. See McCormack, op. cit., n 6, p. 32.

9 Engel Merry, S. (2006) Human Rights and Gender Violence: Translating International Law Into Local Justice (Chicago: University of Chicago Press), p. 5.

10 See Mead, M. (1961) Coming of Age in Samoa (Penguin); and Mead, M. (1963) Sex and Temperament in Three Primitive Societies (New York: William Morrow).

11 See Degusta, D. (199) Fijian cannibalism: osteological evidence for Natau, American Journal of Physical Anthropology, 110, pp. 215–241.

12 Hogbin, I. (1978) The Leaders and the Led: Social Control in Wogeo, New Guinea (Melbourne University Press), pp. 54–67; see also Schieffelin, E. (1977) The Sorrow of the Lonely and the Burning of the Dancers (University of Queensland Press); Hogbin, I. (Ed.) (1973) Anthropology in Papua New Guinea (Melbourne University Press).

13 See Miller, C. (1986) Missions and Missionaries in the Pacific (Edwin Meller Press).

14 Grimshaw, P. (1999) The covenant makers: islander missionaries in the Pacific—review, Journal of Social History, Spring.

15 Rolfe, J. (2001) The Pacific Way: where ‘non‐traditional’ is the norm, International Negotiations, 5 (Kluwer Law International), p. 434.

16 For an overview of this debate see Steiner, H. and Alston, P. (2000) International Human Rights in Context: Law, Politics, Morals (Oxford University Press), pp. 366–401, in particular the article by Pannikar, ‘Is the notion of Human Rights a Western concept’, pp. 383–389.

17 See Sornarajah, M. (1981) An overview of Asian approaches to international humanitarian law, Australian Year Book International Law, 9, pp. 238–239; Viljoen, F. (2001) Africa’s contribution to the development of international human rights and humanitarian law, African Human Rights Law Journal, 18; see also McCormack, op. cit., n 6.

18 Haviland, W. (1999) Cultural Anthropology (Harcourt Brace College Publishers).

20 Haidt, J. (2006) The Happiness Hypothesis: Putting Ancient Wisdom and Philosophy to the Test of Modern Science (Arrow Books), p. 2.

19 Armstrong, K. (2005) A Short History of Myth (New York: Canongate).

21 Meron, T. (1998) War Crimes Law Comes of Age: Essays (Oxford University Press), p. 120.

22 Keith, K. (1999) Rights and responsibilities: protecting the victims of armed conflict, Duke Law Journal, 48, p. 1084.

25 Ibid., p. 16.

23 Spared from the Spear: Traditional Somali Behaviour in Warfare (ICRC, February 1997).

24 Arabian Epics (ICRC, 1997).

26 El Derecho Internacional Humanitario Y El orden Juridico Maya: Una Perspectiva historico‐Cultural (ICRC, 1997).

27 For a full account of the project and the results see ICRC project entitled ‘Protected by the Palm: Wars of Dignity in the Pacific’.

28 Seremaia Waqainabete, USP research student.

29 ‘The Story of the Two Great Warriors of Funafuti Island’, Simon Kofe, USP research student.

30 Gatoloai Tillanamua Afamasage, Dean of Education, National University of Samoa.

31 Waqainabete, n 28.

35 Kofe, n 29.

32 Daisy Rowaro, USP research student.

33 Beverleigh Kanas, USP research student.

34 Nemani Tuifagalele, USP research student.

37 Ibid., p. 31.

36 Meggitt, M. (1977) Blood is their Argument: Warfare among the Mae Enga Tribesmen of the New Guinea Highland (Mayfield), p. 10.

38 Kofe, n 29.

39 Waqainabete, n 28.

40 Jaynen Mangal—example of the warrior Tui Wainunu.

41 Interview with Mr Tamaseses (former Prime Minister of Western Samoa).

42 Alasia, S. (2003) Fata’abu: the Voice of God (University of the South Pacific, Honiara), p. 68.

43 S. Fischer.

44 Meggitt, op. cit., n 36, p. 31.

45 Interview Mr S. Alasia, Daisy Rowaro.

48 Kanas, n 33.

46 Clunie, F. (2003) Fijian Weapons and Warfare (Fiji Museum).

47 Waqainabete, n 28.