by guest contributor Boyd van Dijk
Like human rights, the popularity of the term of international humanitarian law (IHL) has skyrocketed since the late 1980s. Following the downfall of bipolarity, the term regularly appears on the covers of various print and digital media. Similarly, IHL has attracted the attention of countless reporters, diplomats, practitioners, scholars, and students. The Jean-Pictet competition, named after its mythicized founder, receives every year record numbers of student applications from across the globe. Similar to human rights, IHL usually guarantees law professors of full classrooms, illustrating the booming nature of this field of international law, despite of its countless violations during recent armed conflicts in Afghanistan and Syria.
Contrasting with this rising interest, it is remarkable how few historiographical insights there exist about the origins or genealogy of this branch of law. Unlike that of human rights, this field of academic study still suffers from the traditional weaknesses in legal-intellectual historiography – e.g. Whig history, triumphalism, and so on. Building upon Nietzsche’s critique of the search for Ursprung, Michel Foucault famously commented in the 1970s on the problem of describing the history of law in terms of a linear development. Genealogical approaches, he argued, are designed to achieve the very opposite, that is to identify the “accidents, the minute deviations, [and] the errors [that] gave birth to those things that continue to exist and have value for us” – IHL, for instance.
When I recently attended two conferences in Uppsala and Berlin about the origins of IHL, I was struck by the continuing relevance of his words. For many colleagues, IHL and its origins can be traced back to certain foundational ideas of either the ancient Stoics, the early modern period, or to the colonial civilizing mission in the late nineteenth century. In reality the origins of IHL are far more recent, dating back to the 1960s. Around this period, the term became more regularly used while the United Nations and ICRC began fusing human rights law with early humanitarian law, as part of their larger efforts to revise the legally amorphous Geneva Conventions of 1949.
The first serious and systematic attempt to define the concept of IHL occurred only in 1966, with the publication of Jean Pictet’s famous essay in the Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge. Pictet, one of the primary founders of the original drafts for the Geneva Conventions, had first coined a briefer version of this term (“droit humanitaire”) in the late 1940s. Then, it still mostly lacked systematic thought. In his new essay, however, he laid out a comprehensive theory of what “le droit international humanitaire” actually meant – or could mean. Essentially, he designed an expansive, colorful legal patchwork whose origins go back to a range of different intellectual modalities – from natural law, positivist human rights law, Hague Law, Calvinism to Genevan humanitarianism. By the 1970s, Pictet’s terminology of IHL, or DIH, became widely known. It was used by various practitioners to protect “victims of war”, the ICRC’s original vocabulary for the law’s main focus-group, against inhumane treatment.
The terminology of international humanitarian law raises another, far more important question: to what extent are the discourses of humanity, humanitarianism, genocide, human rights, and the Geneva Conventions actually related? Echoing an expansive notion of IHL, many scholars have argued in favor of drawing a connection between these fields of law and politics – or both, although this claim is historically contentious. For example, neither the Martens Clause, defining the laws of humanity, and the words of “crimes against humanity”, first catapulted into legal history as an Allied response to the Armenian Genocide, are mentioned in the original Geneva Conventions (see Kerstin von Lingen’s forthcoming Habilitation.) Nor do these treaties strictly forbid the use of scorched earth policies, or even starvation, as a means of warfare. In other words, while often called humanitarian conventions, they have a remarkably inhumane instinct as well as consequences.
Another example of the troubling relationship between the Conventions and other fields of international law is genocide. Like the famous international lawyer Hersch Lauterpacht whose own contributions to the Geneva Conventions are now largely forgotten (see Philippe Sands’ magisterial work and its neglect of them), Pictet found this term, originally coined by Raphael Lemkin, far “too political.” He also disliked its focus on collective as opposed to individual rights. For these and other reasons, the ICRC hardly referred to the term of genocide after its coining in the 1940s, even though the Conventions do make mention of “extermination” (see Article 32 of the Civilian Convention), its apparent moral equivalent. However, this terminology has technically – though not effectively – little to do with genocide: the former was originally suggested by the Soviets in order to ban atomic warfare altogether, a tactic that had turned the Geneva diplomatic conference in 1949 into a major Cold War-battleground.
Still, the most widely discussed topic remains the often contested relationship between the Conventions and human rights. Many Anglo-American scholars – though not only them – question whether there are really any connections between them. Their answer is often negative because they focus almost exclusively on the translated minutes, drafts, and/or ICRC commentaries. Pointing to the fact that none of the four Conventions make any direct reference to human rights, they argue that these two fields had remained fundamentally distinct in this period of the 1940s.
My research employs a more genealogical approach to challenge this assumption. This entails a sharpened focus on the ideas, inspirations, and contributions of influential European continental drafters, particularly those from the Francophone countries, in developing the laws of war before and after WWII. For these men – very few women were involved – there existed in the late 1940s a tight connection between human rights and early humanitarian law, a much closer relationship than might be easily assumed in retrospect.
In 1966, Pictet wrote in his essay that humanitarian law from its very beginnings had been about protecting “la personne humaine.” In his view, this field of law had reached a decisive stage in its development already in the late 1940s, with the signing of the Universal Declaration of Human Rights (1948), the Geneva Conventions (1949), and the European Convention on Human Rights (1950) – interestingly, he did not include in this list the Genocide Convention of 1948. Claude Pilloud, a fellow ICRC-official and a co-drafter of the original drafts of the Geneva Conventions, made a similar claim. In April 1949, right at the start of the diplomatic negotiations, he argued in an essay for the Revue, which was entitled: “La Déclaration Universelle des droits de l’homme et les conventions internationales protégeant les victimes de la guerre,” that there existed “des points communs évidents” between the UDHR and the drafts that he had helped to design for the upcoming diplomatic conference.
Strikingly, the French-Jewish co-drafter Georges Cahen-Salvador, also René Cassin’s colleague at the Conseil d’État, strongly echoed his view at the end of these negotiations. In an article for Le Figaro, he argued that the drafters of the Conventions had finally safeguarded human rights (“des droits et des libertés humaines”) in wartime, which further indicates the degree of closeness between these two fields of international law – why, how, and to what extent this connection was made by the drafters as a whole is more extensively discussed in my research.
Equally important, it is critical to identify not just those moments of overlap, but also the instances when human rights failed to connect with humanitarian law – the occasion upon which a mostly continental European aspiration remained unrealized, to paraphrase Foucault. Put differently, why are human rights not mentioned in the Geneva Conventions? One answer to this question is to refer to the drafting history of Common Article 3, a critical legal provision that the US Supreme Court used in 2006 (look here for its judgment) to end the torture of Al Qaeda detainees. Originally, the text for this article, co-drafted by Cahen himself, had made mention of human rights; they were made part of a list of individual protections against forms of inhumane treatment, such as hostage taking, summary executions, and torture. However, the drafters decided, under pressure from various delegations, to remove this reference to human rights from the final texts, eventually causing a bias in the literature which claims that human rights had nothing to do with early humanitarian law.
What is true, however, is that a direct legal contact between these two branches of law was only established in the period since the 1960s, following the attempts by particularly the UN Human Rights Division in seeking to remedy for the failures of Common Article 3 to regulate so-called “non-international armed conflicts,” such as colonial wars. This was partly a response to the previous years during which it had witnessed how colonial powers had denied the relevance of this article for their brutal counterinsurgency campaigns in Algeria, as well as in Kenya.
As a consequence of these failures of Common Article 3, the UN body and the General Assembly wished to use human rights as a means to fill the law’s gap with regard to insurgencies that were considered short of armed conflict. Such an approach has fundamentally changed the language, typology, nature, and practice of legality in war. Whereas it formerly applied only in peacetime, human rights law now did so in wartime as well (see Guglielmo Verdirame’s criticism of this point). Ironically, the unintended consequence of this effort to strengthen IHL led to its gradual weakening, if not overtaking, by human rights – or, as some prefer to call it, to the weaponization of human rights law.
Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He is currently working on a new international history of the Geneva Conventions of 1949. Previously, he published a book on the bystanders of an SS concentration camp in the Low Countries.