With good reason, the Rule of the Splintered Paddle has achieved iconic status in Hawaiian history and culture. Ironically, though, much of its import was lost soon after Kamehameha delivered his edict. It was announced in the closing years of Hawaiian inter-island warfare. With their passing, the context for his rule was quickly forgotten.

The Rule of the Splintered Paddle is revered among the people of Hawaii as a symbol of protection and compassion.1 For that alone, it deserves respect. But we should also appreciate the Splintered Paddle's potential impact far beyond Hawaii. It stands as a landmark in the development of rules for humanitarian constraint in war, and points the way forward for international humanitarian law in the twenty-first century. International humanitarian law, also known in the armed forces as the law of war, is used to save lives and alleviate suffering in time of war.

The Law of the Splintered Paddle

In the mid-1780s Kamehameha was well launched on the military campaigns by which he unified the Hawaiian Islands. In those days a small, otherwise insignificant encounter gave rise to the Rule of the Splintered Paddle. Following a harrowing overnight voyage in waters rimming the Big Island coast, a raiding party, led by Kamehameha, pulled ashore near an inviting target of opportunity. He tore ahead of his men and went straight for his quarry, a group of men and women from a nearby fishing village.

Two men stayed behind to buy time while their neighbors scooped up children, grabbed fishing nets and fled for their lives. A hole in the lava beds caught Kamehameha's foot, and they seized their opportunity. Kamehameha fought them off and tried to pull free, but eventually one man found an opening and smashed a wooden paddle over his head.

They ran as Kamehameha collapsed in a bleeding heap and his men surged forward to his rescue. There are several traditions on what happened next. According to one, his opponents were captured soon after and brought to a hut where Kamehameha convalesced, uncharacteristically prostrate from their blows. According to another tradition, they were brought before him some years later, after he had fully subjugated the island of Hawaii. At that point diverging threads of tradition reassemble, and the story reaches much the same conclusion in each version.2

They expected to die. Kamehameha asked the principal assailant why he hadn't struck twice. The reply, "if I had known you were still alive I would have struck again." Rather than confirm what they already knew - that death awaited them - Kamehameha decided, instead, that he had been in the wrong to attack them. They were fishermen, not warriors. They were freed, given land, and became Kamehameha's loyal allies.

Drawing on his power to issue edicts and to bring his wrath on those who disobeyed, Kamehameha pronounced a rule for future guidance famed as the Kanawai Mamala-hoe, translated as the Rule of the Splintered Paddle. "Let the aged, men and women, and children lie down by the road in safety." In other words, spare civilians not taking part in the fight. They are non-combatants. They shall not be targeted. Attack them and you shall be punished.

The rule seems to have had antecedents in the discretionary power of chiefs to grant clemency, but Kamehameha's edict turned an act of grace into a rule governing the conduct of war. It was applied in the field soon after. When Kamehameha's forces attacked a rival chief and his followers in 1791, he invoked the Kanawai Mamala-hoe to stop further slaughter of his defeated enemies. Some of our insights come from Samuel Kamakau, a native nineteenth century Hawaiian historian who recorded oral traditions from Kamehameha's time and wrote about the Kanawai Mamala-hoe.

Kamakau recorded that thousands of lives were saved that day thanks to invocation of the Splintered Paddle. Kamehameha enforced the rule against protests from his followers and the in the face of doubts about his ultimate success. Though the law of war was not Kamakau's reference point, he did capture the moral imperative for such rules. "It was a righteous thing (mea kupono) that Kamehameha did, against the opposition of his friends, because the outcome of the war for the kingdom was still undecided."3

The Rule of the Splintered Paddle is internationally important for two reasons. First, it represents the last dramatic breakthrough in the development of customary international laws of war. From antiquity on, rules of war had evolved from battlefield customs that eventually became binding norms. Such norms are known as customary international law. They were found in war (e.g. the use of white flags on a battlefield to signal surrender or a desire to communicate with the other side) and peace (e.g. the obligation to rescue shipwrecked sailors at sea) alike. Second, it is important because the treaty-based system that replaced the Splintered Paddle and its antecedents will not progress much further until it gets a strong boost from new customary law and practice.

International Humanitarian Law through the Twentieth Century

Customary rules of war continued to control the means and methods of combat through the first half of the nineteenth century, though with no dramatic change from what they had been in the eighteenth. In the 1860s our modern, legislative paradigm took hold. The Geneva Convention of 1864 was proposed and championed by Henri Dunant and his colleagues who founded the International Committee of the Red Cross and the International Red Cross & Red Crescent Movement. It provided for protection of wounded and sick soldiers in battle.

Though it took a long time for other treaties to follow, the customary approach of developing the law through field based practice never disappeared entirely. In 1863 President Lincoln promulgated the Lieber Code, history's first example of a comprehensive set of rules regulating an army in wartime. It served as a model code, and was the impetus for much debate, up until the beginning of the twentieth century.

The Geneva Convention was followed, in 1899 and 1907, by treaties that regulated land and maritime warfare. Based on the experience of World War One the legislative, treaty-based system was reinforced with new agreements that prohibited chemical warfare, regulated maritime warfare, updated the Geneva Convention for wounded and sick on land and established a new treaty for the protection of prisoners of war. The horrors of World War Two led to the adoption of four new Geneva Conventions in 1949.

The Geneva Conventions of 1949 remain at the heart of the law today. They provide for protection of wounded, sick and shipwrecked members of armed forces, prisoners of war and civilians. In 1977 they were supplemented by two Protocols Additional to the Geneva Conventions of 1949. These protocols were intended to update rules for both international and internal armed conflict.4

The years since have been marked by efforts to advance the law in relation to means of war. Notable examples of treaty-based efforts are the 1980 UN Convention on Certain Conventional Weapons and the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. That this system of law would flourish seems assured by growing public interest and awareness of issues relating to the law of war.

In recent years the term international humanitarian law has come to prominence and is found often in journalistic coverage of military operations and diplomatic events. Though the armed forces retain "law of war" as their usage, "international humanitarian law" has come to be associated with these rules. Under this newer terminology, the rules of war get more sustained public attention than at any time in history. The democratization of the treaty-based system of international humanitarian law was affirmed by the vital role NGO's played in pushing through the Convention on Anti-personnel mines. Finally, the Rome treaty of 1998 provides for the establishment of a standing international criminal tribunal to try war crimes cases. The future seems bright for our treaty-based system of international humanitarian law. However, it is not.

In a sense, International humanitarian law is overdeveloped. While changes in weapons technology may, from time to time, call for new humanitarian constraints to head off avoidable and militarily unnecessary forms of suffering, the law cannot go much further in its present form and make a difference on the ground. The law of war, as written, is premised on the existence of organized, trained, disciplined armed forces operating under a responsible chain of command. It's unstated, but understood, that these forces will answer to political leaders who have a stake in the international legal and diplomatic system and are susceptible to economic, legal and political pressure.

Such premises are sometimes dubious in the early twenty-first century, and the points of leverage sometimes illusory. Many conflicts involve emerging new categories of combatants, to include private armies, undisciplined gangs, political units that resemble organized criminal enterprises as much as they resemble conventional states, and roving ideological warriors who move freely across borders and are unattached to any nation's armed forces. Some states seem to hold no allegiance to, or stake in the established international legal and political system. They are no more inclined to subscribe to the rules of war as we know them than are the emerging new combatants.

Our recent emphasis on the establishment of international criminal tribunals only underscores a lack of respect, in many instances, for the law that already exists. Where genocide or ethnic cleansing is a strategic goal in war, as it sometimes is today, then the law itself is merely an obstacle to overcome. Sometimes, it is not much of one at that. International criminal tribunals are a weak substitute for military resolve in the face of calculated, systematic mass murder.

The fact is we don't know how to prevent war crimes among recalcitrant armed forces, other than by way of decisive military intervention. Adding new treaties won't achieve much if there's little respect for those that already exist. In fact, after a certain point added treaties may undermine rather than enhance the law. All we will do with a growing list of ignored treaties is invite doubts as to the viability of international humanitarian law. War crimes trials are important to achieve justice and ensure that the suffering of victims is not forgotten, but there is no evidence that our recent emphasis on international criminal tribunals will avert any crimes or encourage better application of international humanitarian law.

The Edict of Kanawai Mamala-hoe Illuminates the Way Ahead

We need diagnostic tools to understand the causes of war crimes. We haven't even invented a stethoscope to help with that diagnosis, let alone X-ray or MRI technology. Treaties and tribunals alone are weak instruments for preventive application of international humanitarian law.

We need to find ways to train, persuade, and inculcate humanitarian norms that will be applied in war zones. Some armed forces respect these rules and apply them. Others do not know of them. In the worst cases, these rules are viewed with absolute contempt.

Before we go further in promoting new treaties or looking to the courts for an answer to these challenges, it's time to embrace an interdisciplinary approach to the challenge of war crimes and implementation of international humanitarian law. To cite but a few examples, criminologists can help to shed light on the motives and mindset of those likely to commit war crimes, anthropologists can identify traditional humanitarian values and communications strategies to build on them, military professionals can begin to formulate military theories and doctrine for counter-genocide operations.

Hawaii, home to the Rule of the Splintered Paddle, holds promise to become the birthplace for much innovative work that needs to be done in the twenty-first century. The Center of Excellence is clearly a leader in the interdisciplinary approach to emergency response, has played an innovative role in law of war/international humanitarian law training since the Center's inception, and provides a unique link between the military and humanitarian communities. It has the potential to contribute much to research and development in this field as its programs grow. The University of Hawaii has quickly taken on a leadership role in interdisciplinary graduate education for the humanitarian community, to include training in international humanitarian and human rights law. The University is a promising site for cutting edge, interdisciplinary research into these challenges not only in the Asia-Pacific region but around the world. The Asia-Pacific Center for Security Studies forms another vital link with seminars and research programs that further the professional development of military leaders across the Pacific Rim. The Henri Dunant Institute of the Pacific is one of only a handful of organizations around the world devoted to the advancement of international humanitarian law, and could be a valuable partner in all of this work.

Before we invest much in further treaty-making, we need to devise creative new approaches for the application of international humanitarian law. Once we understand what works in emerging new conflict environments, we'll have a stronger basis for legislative rule-making. Our greatest single challenge is to convince strong, charismatic leaders outside of the established international system that there is advantage and wisdom in the rules of war. Kamehameha and his followers would have understood.

Customary rules of war tended to develop incrementally, and Kamehameha's edict is striking for the sweeping principle enunciated and the speed with which it was embraced throughout the islands. The edict of the Splintered Paddle is also striking as it came shortly before the treaty-based system of international law eclipsed customary rules of war. However, the treaty-based system has reached a point of diminishing returns as we enter the twenty-first century. Before it can be revitalized, we need to know that future treaties will be informed by practical field-based observations, experience and, one hopes, successful innovations.

Though no one seems to have noticed, the Rule of the Splintered Paddle stood for generations as the last great stride forward in an ancient, sometimes outdated system of rules of war. But times have changed, and it now marks a new beginning rather than just the dramatic end point for an old process of rule-making. The Splintered Paddle capped an old but essential path for creating and implementing international humanitarian law. Today, it points our way to meet some of the biggest challenges of the century ahead.

Michael Hoffman is an attorney and the American Red Cross Director of International Humanitarian Law & Policy. His fieldwork includes service as an Army judge advocate in Korea (he is a retired lieutenant colonel in the Army Reserve), as an American Red Cross representative in the Middle East, and as an ICRC delegate in Sri Lanka. His research interest is in developing practical, field based strategies for implementation of international law. All opinions expressed in this article are those of the author and not necessarily of any mentioned organization.

1. See the Hawaii State Constitution, Section 10.
"The law of the splintered paddle, mamala-hoe kanawai, decreed by Kamehameha I - Let every elderly person, woman and child lie by the roadside in safety - shall be a unique and living symbol of the State's concern for the public safety. The State shall have the power to provide for the safety of the people from crimes against persons and property."

2. For two basic versions see Dr. N.B. Emerson, Mamala-Hoa, Tenth Annual Report of the Hawaiian Historical Society (Hawaiian Gazette Company, Ltd.: Honolulu 1903) pp. 15-29 and Albert Pierce Taylor, Kamehameha's 'Law of the Splintered Paddle', Paradise of the Pacific, April 1927.

3. Samuel Manaiakalani Kamakau, Ka Po`e Kahiko The People Of Old, Translated by Mary Kawena Pukui, arranged and edited by Dorothy B. Barrere (Honolulu: Bishop Museum Press:1991) pp. 16-17

4. The United States has not ratified the Protocols. However, the US does acknowledge that some of the rules set forth in the Protocols do reflect (never quite extinguished and still evolving) customary international law.