By James W. Houlihan
In the early summer of AD 697 the Law of the Innocents—Lex Innocentium in the annals, also known as Cáin Adomnáin—was proclaimed at Birr, Co. Offaly. (See HI 23.1, Jan./Feb. 2015, pp 14–17.) It was a law for the protection of innocents, what we call today non-combatants, primarily—though not exclusively—in times of strife. The word ‘innocents’ is derived from the Latin nocere, ‘to hurt’, and innocere for those who do not hurt—in other words, non-arms-bearing people. In the text of the law, the concept or principle that such innocents should have an immunity from violence is clearly articulated.
Adomnán, abbot of Iona, who inspired and drafted the law, was a formidable figure, described by one modern medievalist as ‘one of the leading churchmen in these islands in the first millennium’. He had an acute and unusual awareness of the predicament of the non-combatant, and it is clear from his writings that he had a special and unique concern for the innocent victims of warrior violence. At the time of his abbacy the annals were being compiled in Iona, and it is likely that he himself would have chosen the name Lex Innocentium for his law, the first in the history of western Europe and, indeed, the only one for many centuries.
In relatively modern times the laws of war were divided into two categories: jus ad bellum, which addresses the question of when it is right to go to war, and jus in bello, which is concerned with right conduct during the course of war. From Greek and Roman times western thinkers have been preoccupied with the question of when it was just to go to war to the virtual exclusion of what behaviour during war was just. It was believed that a just cause legitimised violence towards the enemy’s population. The early Christians had difficulty in reconciling those who advocated pacifism on the one hand and the necessity to defend the empire on the other hand, particularly after the conversion to Christianity of the emperor, Constantine, after AD 323–4. Augustine of Hippo’s (354–430) thinking had a defining influence on what was to become the dominant ‘just war’ thinking into the late medieval and early modern period. Faced with the occupation of Rome by Alaric’s Goths on 24 August 410 and the need to justify the wars of the Old Testament, he held that war and the killing of human beings was a necessity in certain circumstances. In fact, at one point, when considering the evils of war, he writes that they are ‘love of violence, revengeful cruelty, fierce and implacable enmity, wild resistance and lust for power’ and not ‘the death of someone who will soon die in any case’. It is clear that Augustine’s thinking is perpetrator-driven and not victim-driven; he is concerned for the soul of the warrior and not, like Adomnán, for the welfare of the victim, for jus ad bellum and not jus in bello. Furthermore, Augustine widened the circumstances in which a war could be considered just by including among the wrongs that could be avenged not only illegal acts but also immoral and sacrilegious acts. He argued that the subjective guilt of the enemy merited punishment of the enemy population without regard to the distinction between soldiers and civilians.
In the ensuing centuries the boundaries of Augustine’s just war thinking were extended further and further, far beyond what he himself taught. Its most extreme manifestation was the calling of the First Crusade by Pope Urban II in 1095, when the knights of western Europe were urged to fight for Christ and be assured of spiritual reward in heaven because it was pleasing to God that the knight should do battle against God’s enemies. This was the ultimate just war, where there were no limits on the suffering inflicted on the enemy. One contemporary account of the fall of Jerusalem reads: ‘Nearly ten thousand were beheaded in the temple … What shall I say? None of them were left alive. Neither women nor children were spared.’ Another reads ‘… wonderful sights were to be seen … Piles of heads, hands and feet … men rode in blood up to their knees and bridle reins. Indeed it was a just and splendid judgement of God …’
The western mind-set, therefore, was dominated from antiquity into early and late medieval and early modern times by the concept of jus ad bellum to the virtual exclusion of jus in bello. Even Hugo Grotius (1583–1645), the Dutch jurist often credited with being one of the original international lawyers, held that punishment was one of the four justifications for waging war. Because of the perceived entitlement bestowed by a just cause, there was no place for jus in bello. This, it is suggested, goes a long way towards explaining the singularity of Adomnán’s Law of the Innocents.
Jus in bello, however, was not entirely missing from the medieval world. Some historians, unaware of Adomnán’s Law of the Innocents, often credit the Peace of God movement in Francia around the turn of the tenth/eleventh centuries as being the turning-point when non-combatants were first given legal recognition. Large gatherings of people, called councils, were organised by churchmen, particularly around the French Midi and further afield, which agreed canons that had the goal of providing protection against unjust aristocratic violence against weaker members of the community and the unarmed. In recognising the innocent and in attempting to protect them, the Peace of God movement rightly takes its place in the history of jus in bello. In c. 1140 Gratian, a monk and canon lawyer from Bologna, urged the exemption of pilgrims, clerics, monks, women and the unarmed poor from violence on pain of excommunication. Over the centuries, other canonists and thinkers made the distinction between combatants and non-combatants and recognised the ideal that the latter should enjoy a measure of protection. Real change, however, was the product of the eighteenth-century Enlightenment, when just war theories gave way to the view that it was the sovereign’s inherent right to wage war, just as it was the king’s in early medieval Ireland. This was why it was pointless for Adomnán to be concerned with just cause for war; the king per se had the right. Adomnán was a realist and sought instead to limit the evil effects of war. Similarly, in the era of raison d’état in Europe, war was seen as a de facto and morally neutral situation. This opened space for attention to be paid to how war was waged, to consider rights and duties during war.
In 1859 Henry Dunant (1828–1910) was present to experience the aftermath of the battle of Solferino, which inspired him to found, in 1863, what was to become the International Committee of the Red Cross. In the same year specific humanitarian rules to apply in time of war were promulgated to the Union army in the American Civil War. Over the course of the remainder of the nineteenth century and in the first half of the twentieth century various international conferences were held, but it was not until the fourth Geneva Convention of 1949 and subsequent protocol of 1977 that the rights of innocents in time of war, regardless of who had the just cause, was firmly enshrined in International Humanitarian Law (IHL). It took two disastrous world wars, in which millions of innocents were slaughtered, before the international community agreed, as was agreed in Birr in 697, that innocents had an unconditional right to protection.
We have all witnessed the horrors of the Israeli/Hamas conflict. We have been shocked by the barbaric attack by Hamas on innocent people. We have been revolted by the monstrously disproportionate response from Israel. The slaughter of thousands of innocent women and children, including the deliberate use of starvation as a weapon of war, can never be justified and clearly constitutes a war crime under IHL. Those responsible must, ultimately, be held accountable under the law. It seems clear also that the Israeli conduct amounts to genocide or, at a minimum, ethnic cleansing. Their dismissal of the two-state solution makes this self-evident. What is really worrying is the reaction of the western powers; they have continued to supply arms to Israel and have suspended their funding of UNWRA, the UN’s relief organisation for Palestinian refugees, thereby aiding and abetting the infliction of misery on millions of innocents. Many of us feel ashamed of this reaction on the part of our fellow westerners, which could be seen as a rejection of IHL itself. On the other hand, we can feel proud of the reaction of our own government, who have been firm in their support of jus in bello in the context of this conflict. We must take the lead in defending IHL and in prosecuting its implementation. The Law of the Innocents, the first law for the protection of non-combatants in western Europe, Adomnán’s legacy, demands it.
James W. Houlihan is a solicitor and author of Adomnán’s Lex Innocentium and the laws of war (Four Courts Press, 2020).