I. Introduction
The relationship between human rights and humanitarian law is one of the most contentious topics in the history of international law.Footnote 1 Most scholars studying the foundations of these two fields argue that each body of law developed autonomously and remained distinct until the second half of the twentieth century. For example,Footnote 2 Swiss legal expert Dietrich Schindler has argued that “[p]rior to the 1950s, the law of war and the law of human rights developed separately and were unrelated.”Footnote 3 Stressing that none of the four Geneva Conventions make any direct reference to human rights, many scholars argue similarly that the two fields remained fundamentally distinct until the 1950s,Footnote 4 or until 1968,Footnote 5 when the Teheran Resolution called for the application of human rights in wartime.Footnote 6
Traditional accounts like these typically describe humanitarian law and human rights as two conceptual opposites—one applying to peacetime, the other in wartime; one dating back to the Atlantic Revolutions,Footnote 7 the other originating in Genevan humanitarianism;Footnote 8 and one focusing on the limitation of group suffering in war, the other seeking to protect individual rights against disciplinary state power, or war itself.Footnote 9 In theories of international law,Footnote 10 humanitarian law is often characterized as a product of balancing the demands of humanity and military necessity, and of utopianism and realism, in a more humanitarian direction. Central to this belief is the assumption that, unlike human rights, humanitarian law is rooted in reciprocity-thinking that works through rather than against the state. These rules for warfare are said to be based on sentiments of compassion, chivalry, and pity, not of claiming rights and accountability. This widely accepted legal dichotomy suggests two conceptually distinct genealogies, each having its own separate origins, foundations, and future.
Strikingly, the leading drafters of the 1949 Geneva Conventions had a very different view of this historical relationship. The prominent French drafter Georges Cahen-Salvador affirmed that he and other drafters had succeeded in safeguarding “human rights” in wartime.Footnote 11 Claude Pilloud, the head of the International Committee of the Red Cross's (ICRC) Legal Division, admitted that there existed “des points communs évidents” between the Universal Declaration of Human Rights (UDHR) and the drafts that he had co-designed for the diplomatic conference. Like other influential drafters, the leading ICRC delegate, Jean Pictet, suggested that the non-binding UDHR had remained largely theoretical, whereas its binding equivalent of “Geneva Law [was leading] the way.”Footnote 12
Equally disappointed with the UDHR's non-binding nature, British human rights lawyer Hersch Lauterpacht agreed that the binding Civilian Convention (i.e. the Fourth Geneva Convention) was the true “instrument laying down legal rights obligations as distinguished from a mere pronouncement of moral principles and ideal standards of conduct.”Footnote 13 The authoritative Belgian drafter and Geneva-based professor of international law, Maurice Bourquin, also claimed that the Conventions’ “objective [was] to guarantee the respect of the human person, they [were] to safeguard the essential Rights of Man and his dignity.”Footnote 14 Even the skeptical UK drafter, Joyce Gutteridge, one of the few women in this highly male-dominated and Eurocentric drafting process, acknowledged a close link between human rights and the Geneva Conventions.Footnote 15
Challenging the literature's rigid understanding of the bifurcation between human rights and humanitarian law, this article demonstrates the transformative impact of “human rights thinking” on the making of the Conventions. Borrowing from the work of intellectual historians and the legal philosopher David Luban, it conceptualizes “human rights thinking” not just as a metonym for different projects promoting human dignity and limiting state sovereignty but also as a conceptual generator for viewing individuals as holders of universalistic rights in armed conflict.Footnote 16 In the sense used here, “human rights thinking” is not necessarily the inherent opposite of “humanitarianism,” nor does it imply disregarding the law's deeply historical nature. The project of recovering humanitarian law's entangled foundations requires tracing the influence of evolving rights and justice notions on their historical paths, which facilitated new legal trajectories of humanity in war still relevant today.
The article examines how legal cross-fertilization destabilized conceptual oppositions within international law, revealing a much greater convergence between human rights and humanitarian law than is often assumed in retrospect. Appropriating human rights thinking and blending it with existing humanitarian frameworks as a means to challenge a preexisting exclusive legal regime that heavily privileged wartime occupiers’ rights, the leading drafters of the 1949 Conventions played a crucial role in questioning a whole range of Nazi-style counterinsurgency policies. In their eyes, measures like hostage taking and collective penalties were no longer appropriate tools to enforce the laws of war and to safeguard the political order of Europe. These policies, they argued, were not just inhumane or lacking in military necessity, but also—and this represents a decisive conceptual shift—a violation of the fundamental rights and dignity of individuals.
An important cause for this shift was a much larger legal-moral alteration in focus from soldiers’ rights to protecting civilians in war.Footnote 17 This was partly a result of Allied wartime declarations condemning colonial-style counterinsurgency for “civilized” Europeans,Footnote 18 which would later boomerang back at them. Indeed, once the Allies, and later their drafters, had agreed to publicly condemn Nazi hostage killings on the basis of universalistic principles,Footnote 19 they were forced to reckon with other measures of counterinsurgency as well—potentially including their own. If you condemn hostage killing, critics argued, you cannot ignore the destructive effects of collective penalties for the rights of civilians, including those living in the colonies. Once post-war plans to protect the dignity and rights of European citizens against brutality in interstate wars became bound up with similar proposals for international regulation of civil and colonial wars, imperial powers were faced with a new and totally unexpected reality.Footnote 20 While never fully realized, this agency-driven logic of “cascad[ing] effects”Footnote 21 led to new calls for more universalization and less tolerance for brutality in wars, including those involving anti-colonial resistance.
This article contributes to interdisciplinary conversations about the relationship between human rights and humanitarian law in a number of ways. First, it questions traditional accounts by demonstrating how the making of the Geneva Conventions cannot be understood exclusively in terms of promoting humanitarianism, or in metaphoric terms of linearity, or teleology, like “progress” and “advancement.” Second, it reveals when human rights thinking first began to infringe upon humanitarian law,Footnote 22 and why the ambiguity surrounding this relationship has “fester[ed] so long” since 1949.Footnote 23 In particular, the article makes clear how leading drafters at first widely embraced human rights thinking but finally proved reluctant to fully adopt its key discourse as part of the Conventions’ final texts, thereby obscuring their intellectual debt to human rights in the name of upholding lex specialis. In recovering the impact of human rights reasoning, this article opens up new avenues for thinking about the contentious divisions between so-called “enthusiasts” and “skeptics” of these two fields of law—one arguing in favor of applying human rights law to armed conflict, the other fiercely resisting it.Footnote 24
Third, the article builds upon the “historicizing moment” in international law and the critical historiography of human rightsFootnote 25 to explore the transformative impact of a “moral revolution,”Footnote 26 of how human rights thinking became instrumentalized to strengthen the protection of victims of war. Part II briefly traces the doctrinal differences between the two legal traditions, as well as the origins of a preexisting exclusive legal regime for warfare, revealing how these were first seriously challenged in the wake of the “Greater War” (1912–1923).Footnote 27 The same section, which centers on analyzing treaty law rather than custom, further investigates how plans for the First Civilian Convention were first rejected by the French and then later neglected by the ICRC itself, with major consequences for the ICRC's response to the Holocaust. Part III demonstrates how these two key Francophone actors radically changed their views after 1945, laying the groundwork for the 1949 Conventions by placing different human rights conceptions (e.g. anti-communist, Gaullist, socialist, Zionist, exile, conservative, liberal) at their core.Footnote 28 Unfolding new opportunities for reimagining contemporary international law, the Conclusion shows how a diverse coalition, from ICRC delegates to Soviet representatives, created both the very first binding rules for civilian protection and a contentious legacy for contemporary legal questions regarding human rights in war.
II. Drafting the First Civilian Conventions
Traditional theories of the laws of war usually define their core aims as limiting the effects of war and mitigating human suffering. These rules, it is said, were designed to uphold the principle of humanity in war (inter arma caritas), not to protect rights; to humanize war, not to end or outlaw it; to work together with states, not to meddle in their internal affairs; to relieve pain in a utilitarian fashion, not to demand entitlements; to protect soldiers, not to empower noncombatants; and not to promote human dignity, but rather to alleviate human suffering. The laws of war gained their strength, advocates argued, from balancing the demands of humanity with those of military necessity in order to maximize state support.Footnote 29
This state-centric approach to regulating warfare, as adopted by the drafters of the 1907 Hague Regulations and other rules for warfare before the “Greater War,” left a highly selective and punitive legacy for those living under occupied rule.Footnote 30 Empowering the occupier, international law in this period never strictly outlawed the use of reprisals, collective penalties, or hostage taking—despite continuing criticisms of these measuresFootnote 31—and set an extremely high bar for the recognition of belligerency.Footnote 32 Nor did the drafters of the Hague Regulations wish to renounce the practice of internment (“concentration”) camps.Footnote 33 Being the objects rather than subjects of international law, enemy citizens who violently resisted the sovereign's rule could be harshly punished. Rather than broadly protecting rights, the discipline's aim was to limit war itself and to protect regular soldiers against attacks by civilians, so as to safeguard the existing orders of Europe.Footnote 34
Even though the drafters of the codified laws of war at this time gave some noncombatants a set of basic rights protections,Footnote 35 none of these rights were intangible or absolute, let alone universal, in scope.Footnote 36 Building upon racial and other types of hierarchies within the existing law of nations, international jurists in fact widely accepted that indigenous populations deemed not “civilized” were to be excluded from international law's shield of protection.Footnote 37 Rather than a universalizing language applying to the whole of humanity, the laws of war in this increasingly violent period excluded a whole range of non-European victims of war. The rights of European noncombatants, it was further argued, remained conditioned on the individual's behavior, or that of the collective, as well as what was deemed militarily necessary by the occupier.Footnote 38
During the “Greater War,” contemporaries witnessed the effects of the law's coercive impulses: how entire societies were mobilized, how total war blurred old legal boundaries, how prisoners of war were directly targeted,Footnote 39 and how “civilians” —a term which owes its origins to this periodFootnote 40—were greatly affected on a global scale. Allied propagandists told horrific stories about civilian suffering in German-occupied areas and the breaking of the codified laws of war, partly in order to justify their own war effort.Footnote 41 These radically changing legal understandings of what was permitted and required in European warfare featured prominently in the 1919 Allied Commission's report, which listed a whole range of what had come to be regarded as civilian atrocities, from deportations, collective penalties, sexual violence, terrorism, and hostage killing to torture—all elements that would be first strictly banned only three decades later.Footnote 42
As a result of this formative wartime experience, intertwining with the “humanitarian moment” of the early 1920s, advocates of a fundamental revision of the existing laws of war proposed new rules for intrastate warfare and a binding convention to protect soldiers and civilian internees in interstate wars. As the head of the special civilian section of the ICRC's Prisoner of War Agency and wartime veteran of prison visits to prisoners of war (POWs) and civilian internees, the Swiss medical doctor Frédéric Ferrière made a radical proposal to create a new basket treaty protecting those persons against ill-treatment.Footnote 43 Ironically, the Czarist Red Cross, revising its prewar rejection of plans to allow Red Cross intervention in times of civil war for reasons of anti-communist propaganda,Footnote 44 introduced the period's other major legal innovation—providing the Red Cross, as the guardian of the Geneva Conventions, with a legal mandate to assist political prisoners and hostages held in Bolshevik hands. This anti-communist plan with a deliberate Francophone touch—to demand protection “des droits élémentaires” for fighters and non-combatants alike as a response to the breakup of European empires and the consecutive outbreak of the Russian Civil War (1917–1923)Footnote 45—had first been suggested by Georges Lodygensky, a White Russian anti-communist living in exile in Geneva.Footnote 46
These two radical proposals to protect civilians in war were born out of a broader post-war shift toward international legal personality of the individual and elementary human rights thinking, with its embryonic references to rights concepts and its inherent potential for “cascading effects” within the strict legal boundaries of state sovereignty.Footnote 47 While originating in different political ancestries, Lodygensky and Ferrière shared a desire to place some limits on state sovereignty to protect the rights of individuals in wartime. While blending rights concepts with a still dominant humanitarian discourse, the Swiss doctor discussed the importance of saving civilians from “slavery” and protecting political prisoners against state terror. Even though he spoke mainly of rights in terms of the state's powers, he strongly disputed its wartime practices of employing reprisals, arbitrary detention, and “concentration camps.”Footnote 48 His attempts, and those of Lodygensky, to fundamentally alter the legal status quo were presented at the first “post”-war Red Cross Conference in Geneva, in 1921.
The delegates at this meeting discussed the two humanitarian plans fairly extensively, eventually endorsing a non-binding resolution declaring that all victims of European fratricidal violence had the right to be helped,Footnote 49 as well as a broad prisoners’ code which would initially cover both prisoners of war and civilian internees. Furthermore, the ICRC suggested to ban the internment of women and children, except with regard to spying (e.g. Mata Hari), revealing a gradually changing understanding of women as persons with (some) agency in war.Footnote 50
Equally critical, the Red Cross drafters effectively rejected the disjuncture of rights and nationality, creating a permanent legacy for humanitarian law by making the individual war victim's rights dependent upon his or her nationality, which meant that only nationals of an adverse belligerent would be protected under this new prisoners’ code. Displaying the sovereignty-based limitations of elementary human rights thinking in this period, persons lacking nationality (e.g. stateless persons), those imprisoned for political reasons (such as conscientious objectors), and the state's own nationals (for instance, Ottoman Armenians), were banned from having the right to have international rights in wartime.Footnote 51
Notwithstanding these major restrictions, the delegates adopted key parts of Ferrière's elementary human rights thinking, with its mixture of qualified rights concepts and heavy emphasis on humanitarian discourse. They made some groundbreaking steps in banning the use of various rights-violating measures, such as reprisals, which represented a turning point in the history of the laws of war.Footnote 52 They also instructed the ICRC to establish a special committee that would be led by Ferrière himself to prepare a new prisoners’ code for a future diplomatic conference. This new Special Committee decided, however, to breakFootnote 53 with the Red Cross movement's original demand: thanks to Ferrière's suggestions, it endorsed a separate and fairly broad Civilian Convention that built upon states’ acceptance during the war of civilian protection-related principles included in various bilateral agreements.Footnote 54 This future treaty, the ICRC argued, would have to cover a whole range of different groups of civilians, from evacuees to refugees.
For the next Red Cross Conference, in 1923, which followed the ICRC's unsuccessful intervention in the Russian Civil War, the organization took a more restrictive approach, shifting its attention to matters other than regulating civil wars and suggesting a much less ambitious Civilian Convention.Footnote 55 Considering the question of civilians infinitely more complex than that of prisoners of war—which illustrates the ICRC's continuing predilection for soldiers’ rights, and fears of undermining its position of neutrality—the organization advanced a much less far-reaching Convention. In continuing the laws of war's preexisting disposition toward safeguarding state sovereignty and military interests, the ICRC hoped to improve the chances that its plans would be eventually accepted by the Great Powers, although it faced an uphill battle when it first presented the plans in 1923.Footnote 56
At the Red Cross Conference, and in the wake of the French occupation of the Ruhr area of Weimar Germany, the previously absent French delegation was especially resistant to the idea of a separate and binding Civilian Convention.Footnote 57 The French were particularly immune to Ferrière's plans for occupied territory and more detailed restrictions against hostage taking, for instance. At various occasions, they disputed the ICRC's suggestions, arguing that matters like these fell virtually exclusively within the domain of state sovereignty, a concept already under significant international scrutiny since 1919.Footnote 58 In principle, the French, as a victorious and occupying power, were unwilling to give up their extensive wartime authority and, despite Ferrière's opposition, succeeded in dealing a severe blow to his attempt to create a separate Civilian Convention.Footnote 59 By showing a lack of urgency, if not complacency, with respect to the need for protecting civilians more strongly, the Red Cross movement as a whole destroyed the core of Ferrière's project already at an early stage.
After the failed 1923 conference, Ferrière's elementary human rights thinking lost support within and outside the ICRC. This was the result of opposition from France and many National Red Cross Societies,Footnote 60 and because of Ferrière's death one year later. The remaining ICRC officials lacked his enthusiasm and expertise, and they remained divided over how they were to deal with the question of civilian protection.Footnote 61 Following discussions with Bern as the official depository of the Geneva Conventions, the ICRC decided to temporarily suspend its plans for a Civilian Convention due to objections from “especially France.” Privileging the rights of soldiers and state (and neutrality) interests over the rights of civilians, the organization shifted its attention away from making a Civilian Convention. In the following months, it received pressure from Bern to not raise this question before the POW Convention had been adopted. The Swiss feared that it might otherwise negatively impact the French government's skepticism toward the existing drafts for that future treaty, the ICRC's other critical interwar drafting project.Footnote 62 By 1925, the ICRC had largely abandoned Ferrière's project due to a combination of internal division and pressure from Paris and Bern.
The Genevans broke their silence over the question of civilian protection only in 1929, when the diplomatic conference gathered in their city for the discussion of the POW Convention. The ICRC had suggested in its humanitarian-framed proposals for the meeting not only to reiterate parts of Ferrière's elementary human rights thinking by banning reprisals against POWs, but also to extend the treaty's scope for civilian internees, an idea that received opposition from several delegations, leading to its eventual rejection by the conference. While adopting the suggested preamble referencing the humanitarian duty to mitigate the rigors of war—which illustrates the dominance of humanitarian discourse at this stageFootnote 63—the drafters ultimately gave the Swiss a mandate to prepare a set of drafts for an alternative convention covering enemy civilians alone.Footnote 64 However, revealing its lack of conviction that states would ever accept such a treaty and because of its competing drafting interests, the ICRC, motivated by the children's rights activist Suzanne Ferrière (Frédéric's niece), presented a new plan for protecting civilian rights in interstate war only five years later.
In 1934, at the Red Cross Conference in Tokyo, the ICRC suggested a limited treaty protecting only some enemy civilians in some armed conflicts against some counterinsurgency measures.Footnote 65 This Tokyo Draft, as it became known, largely focused on the protection of enemy aliens in belligerent territory to complement the existing Hague Regulations concentrating on occupied territory, leaving many other important categories of civilians excluded. The rising number of deportees and political prisoners in fascist Italy, Nazi Germany, the Soviet Union, and across other empires were thus mostly excluded from this text.Footnote 66 Echoing Ferrière's elementary human rights thinking, the Tokyo Draft placed some limitations on state sovereignty, banned the severe punishment of hostages, and applied to armed conflict even if a belligerent was not a party to the Convention. But the Draft proved allergic to rights talk and included numerous reservations privileging state sovereignty in critical ways. Indeed, even if this humanitarian text had been applied faithfully during World War II, it would not have protected numerous civilians, such as American-Japanese internees (as the state's own nationals), Italian Jews (co-belligerent nationals), Poles (denationalized persons), or German Jews (stateless individuals).
Interwar Human Rights in War: The 1934 Monaco Draft
At the same time, demonstrating the ICRC's continuing inclination toward the humanitarian project at the expense of human rights’ frameworks, the organization had rejected the only explicit human rights law text for regulating warfare of the entire period—the so-called Monaco Draft.Footnote 67 In the same year as the Red Cross Conference met in Tokyo, a group of Francophone military doctors and international jurists gathered in Monaco. Among them was Albert De la Pradelle, a prominent liberal international jurist from Paris, who had previously taken part in the creation of the Hague Air Rules (1923) and the Declaration of the International Rights of Man (1929).Footnote 68 His legal fingerprints are all over the final text of the future Monaco Draft, with its implicit references to the Hague Air Rules and mixture of humanitarian discourse with interwar human rights talk (“des droits de l'humanité en temps de guerre”).Footnote 69
Representing a missed opportunity in interwar legal history, the Monaco Draft, as it came to be called, is an often overlooked but truly extraordinary human rights text of the laws of war, covering a whole range of different issues crucial to future legal regulation of warfare. The drafters’ stated aim, as an early example of a later shift to fully prioritizing individual rights of civilians as part of a broader human rights thinking, was to gain respect for “la vie humaine pendant la guerre,” a unique reference to interwar republican discourses on human rights among especially French wartime veterans.Footnote 70 Applying also to occupied territory, the text featured five chapters and, in some respects, was more comprehensive than the 1949 Geneva Conventions would ever be.
Most strikingly, adopting both human rights thinking and discourse, the Monaco Draft protected the “l'intégrité physique et la dignité morale de la personne,”Footnote 71 the civilian's freedom of worship, rights of property, “droit à la vie,”Footnote 72 and rights in detention, even though it weakened these wartime rights by several major reservations and a strict duty of allegiance to the occupier's rule as a concession to state sovereignty.Footnote 73 Equally striking, the drafters attributed these rights for civilians to “la conscience humaine,” not the “public conscience” from the Martens Clause.Footnote 74 The Monaco Draft also included legally unique sections on matters such as sanctions, and, unlike the later Geneva Conventions, featured basic rules on the use of air bombardment that were loosely based upon the Hague Air Rules—an early example of entangling “legal flows.”Footnote 75
However, these extraordinary proposals to “humanize war” and to protect human rights in (air) war received little support, let alone enthusiasm, among the ICRC and Great Powers, which were slowly preparing for the upcoming war. With its treatment of individual rights and human dignity as the foundation of a future international legal order, the Monaco Draft touched directly upon matters already covered by the Tokyo Draft as well as the POW Convention. As confirmed by ICRC President Max Huber, the Monaco Draft gained little support among the Great Powers—especially France. The combination of a lack of political space for imaginative lawmaking, the international system's breakdown, the lack of state support, and the ICRC's elementary human rights thinking (which rejected the burden of strictly regulating the conduct of air warfare) led to the Monaco's Draft gradual demise in the following years.Footnote 76 Unlike the Monaco drafters, the ICRC was unwilling to go any further than formulating a draft convention of hospital towns and safety localities for soldiers, a trivial legal project for regulating air warfare that received little support and ultimately collapsed in 1939.Footnote 77
The Tokyo Draft has never been signed or ratified by any belligerent. The Sisyphean plan to hold a diplomatic conference in 1937, amidst the Spanish Civil War and Sino-Japanese War, was skeptically received by France and Great Britain.Footnote 78 By this time, with the breakdown of the international system and major wars taking place across Eurasia, crucial plans to create any Civilian Convention, or any other legal product of human rights thinking—elementary or not—were doomed to failure. The Swiss government decided to temporarily postpone its plan for a diplomatic conference, triggering the downfall of the Tokyo Draft and leaving Jewish civilians with no robust rights under the existing laws of war—an important dimension missing in contemporary debates about the ICRC's wartime struggle to protect European Jews.Footnote 79
However, the most promising drafts for the protection of individual rights in war had already been rejected by the French years earlier, and both Swiss actors (i.e. the ICRC plus the federal government) were not entirely free of blame either. Their later suggestions that either the outbreak of World War II in Europe had led to the early death of plans for a binding civilian treaty, or that “states” (no specific countries were usually mentioned) lacked interest and should therefore be held responsible for this interwar failure,Footnote 80 are historically imprecise. Although one of the few voices during the interwar period to demand a basic Civilian Convention, the ICRC did remarkably little to spark interest in its ideas and usually acted with extreme hesitation out of fear of provoking the Great Powers.
Equally important, the organization decided at the most decisive moments to prioritize its rival drafting projects. Whereas in the interwar period international human rights in peacetime were largely trumped by minority rights,Footnote 81 the protection of enemy civilians in wartime, as a product of elementary human rights thinking, came to be overshadowed by the ICRC's continuing concern for safeguarding its own interests and those of soldiers as well as states, with crucial implications for its later response to the Holocaust.Footnote 82 For various reasons, the ICRC rejected human rights discourse and, thanks to the non-binding nature of the 1921 Red Cross resolution, faced major problems when trying to gain access to victims of state terror in the 1930s. Thus, even though human rights thinking had conceptual effects on ICRC proposals, it stayed very much at the periphery of the organization's legal reasoning in the interwar period.
The Tokyo Draft, which was discussed within the organization as a possible means to condemn the Holocaust,Footnote 83 could have been lifted out of its obscurity by the ICRC, Allies, (Swiss) neutrals, or Axis powers during World War II. But they paid little heed to it. During the war, only Jewish organizations tried to use the text as a means to put pressure on Nazi Germany to stop its genocidal policies against Jewish civilians, but the ICRC proved extremely reluctant to endorse their proposals as a result of its own non-denunciation policy, the Tokyo Draft's non-binding nature, political considerations, and because of its primary focus on protecting binding soldiers’ rights.Footnote 84 The organization recognized, too, that, if ever applied, the text would have had limited impact as a result of its major birth defects.Footnote 85 Publicly condemning Nazi atrocities as a violation of “human rights,”Footnote 86 the Allies transformed this concept into an universalistic battle-cry, while entirely ignoring the Tokyo Draft.Footnote 87
III. Reinventing the Geneva Conventions After 1945
Paradoxically, however, the rival human rights conceptions coined by the Allies and Free French would play a transformative role after 1945 in resurrecting the spectral Tokyo Draft, as well as the discursive birth of “humanitarian law.” Unlike before the war, the ICRC's Legal Division, playing an instrumental role, strongly endorsed both the discourse and thinking of human rights and dignity as a means to condemn Nazi-style counterinsurgency measures, suggesting plans to substantially broaden the Tokyo Draft's scope and to strengthen its basic provisions regulating civilian protection in occupied territory.Footnote 88 Breaking with interwar elementary rights thinking, the ICRC's drafters, supervised by Pictet and given “valuable” advice from Bourquin and Ferrière,Footnote 89 suggested a complete prohibition against hostage taking, for instance.Footnote 90 For Pictet, the atrocities of the war and the revolutionary historical changes indicated by decolonization, the rise of new hegemonic powers, and mass statelessness required a new interpretation of humanitarian law that sought a structural reimagination of the discourse, concepts, and scope of the discipline itself. The engraving of human rights onto the existing laws of war equipped Pictet's team with the legal and political instruments to react to Hitler's wartime atrocities, to reflect on the damaged key concept of human dignity, and to reinvent the ICRC in the wake of the criticisms it had received from Jewish and Allied commentators for its dubious wartime decisions.Footnote 91
Signaling a major shift in legal understandings with respect to belligerent occupation as compared to the interwar period, the Red Cross experts who gathered in mid-1946 enthusiastically approved of the ICRC's open-ended human rights agenda, with its stated aim of protecting the human person's dignity in armed conflict, as a unifying moral imperative in their collective response to Nazi empire.Footnote 92 They condemned the use of now considered “inhumane” enforcement measures for European warfare. Like the socialist Yugoslavs, Frede Castberg, an influential Norwegian human rights lawyer and former exile in London, suggested that the Tokyo Draft ought to be entangled and substantially revised on the basis of the UN's agenda of safeguarding human rights. Fully embracing human rights thinking, he called for the abolition of arbitrary treatment in wartime, especially torture and collective penalties. In the end, he and other Red Cross experts approved of not only stricter limitations upon the occupying state's extensive wartime powers, but also his other, far more radical suggestion to apply human rights thinking to internal wars as well, potentially leading to the internationalization of civil and colonial wars.Footnote 93
The plan to apply binding international law to armed conflicts within states or empires had already been internally discussed within the ICRC as a continuation of its interwar conversation on this topic. Whereas some preferred a bold approach, suggesting the direct application of international law to internal war, the conservative (and now former ICRC President) Huber, aware of the sensitive link between the entangled questions of colonial sovereignty, belligerency, and partisans, opted for a far more cautious path. Playing a fairly dominant role within this preparatory body, he pressured the organization's Legal Division to act discreetly in light of Anglophone sensitivities by raising the matter of civil war at future conferences only at “its margins.”Footnote 94 At another meeting, ICRC drafter Jean Meylan tried again, with Pictet's support, to discuss the issue, but it again led to nothing substantial, revealing the ICRC's initially mixed attitude toward confronting absolute colonial sovereignty head-on.Footnote 95
As a former student in interwar Paris and law graduate from the local university in Geneva, Pictet's tentative support for applying international law to internal wars testifies to his wider enthusiasm for exploiting Allied and republican human rights thinking, with its stress on Rooseveltian freedoms and rights-of-man traditions, as key drafting principles for regulating warfare. Pictet's team began to conceptualize humanitarian law not in terms of exclusively promoting humanitarian beliefs, or of safeguarding the individual's human dignity in wartime, but rather as a balancing act integrating the discourses and concepts of sovereignty, justice, rights, duties, and humanitarianism. In the following months, Pictet's wide-ranging and open-ended human rights agenda, lacking a strict predetermined legal boundary but featuring a generative potential due to its universalistic tendencies, began to slowly materialize.
At this critical early stage of the drafting process, his team began discussing a revolutionized Tokyo Draft that included a wide range of previously neglected human rights concepts, from rights in detention, and individual responsibility, to non-renunciation and saving clauses as a response to wartime state destruction.Footnote 96 In his extraordinary but entirely forgotten brochure, entitled La défense de la personne humaine dans le droit future (1947),Footnote 97 Pictet emphatically adopted the language of human rights, acknowledging that his team's main objective was to safeguard “le respect de la personne humaine et … les droits essentiels de l'homme et sa dignité,” a radical break with the ICRC's interwar reluctance to recognize the conceptual and discursive centrality of this type of legal thinking.Footnote 98 Pictet's internal memorandum from 1946, which suggested stronger rights for partisans, equally revealed his broader human rights agenda.Footnote 99
The future POW Convention, he argued, should guarantee intangible rights for specific categories of irregulars, potentially including female fighters as a response to their empowerment during the war.Footnote 100 At a later stage, inspired by his disappointment about the Nuremberg Trials’ decision to stay silent on the recent war's terror bombings, Pictet went so far as to endorse a special Red Cross resolution to protect not only the individual, but also the collective rights of civilians against all “armes aveugles,” such as atomic and carpet bombing.Footnote 101 Unlike Pictet, Pilloud, his drafter-in-arms and head of the ICRC's Legal Division, believed such a resolution would seriously upset their Anglo-American drafting allies, threatening the future of the Civilian Convention for individual rights in war, ultimately causing the downfall of Pictet's radical suggestion.
In its reports for the upcoming Allied Government Expert Conference, Pictet's team, influenced by the ICRC's broader concerns over its marginalization by the Allied powers, adopted parts of Castberg's cosponsored plan for internationalizing internal wars. Using this human rights idea mixed with humanitarian concepts and discourse as a means to securing its own institutional future, the ICRC's proposals also responded to its ongoing struggle in Indochina and Palestine to persuade insurgents and colonial powers to apply humanitarian rules reciprocally.Footnote 102 Despite these far-reaching proposals questioning colonial sovereignty in unique but judicious ways, the ICRC adopted a selective and distinct human rights agenda. Yet in his brochure, Pictet admitted that they would endorse only a measured convention for “enemy civilians,” a limited category that would continue to cause controversy among Jewish observers and within the ICRC.Footnote 103
Some ICRC officials, including Pictet, who had taken part in the wartime debates about not filing a public ICRC appeal against the Holocaust, questioned the Tokyo Draft's exclusion of political prisoners and the state's own nationals in light of the Nazi terror against German Jews and Communists. Disillusioned by his wartime experiences, Huber, by contrast, believed that covering the state's own nationals would trigger severe opposition and be ineffective since “reciprocity was [not] granted.”Footnote 104 While publicly admitting the central importance of the language and concepts of human rights at the Government Expert Conference held in 1947,Footnote 105 Huber, like Pilloud, emphasized the importance of the preexisting humanitarian principle of reciprocity, stressing that sovereignty-related matters like political imprisonment should be left to states or the UN Commission on Human Rights (UNCHR).Footnote 106
Concurring with these restrictive views, the ICRC's Legal Division finally rejected Pictet's cosponsored proposal, suggesting a distinct and non-UN-involved Civilian Convention with a limited scope that would apply to “enemy civilians” only.Footnote 107 By adopting this selective approach to human rights and rejecting the “political” concept of genocide—a move that also largely secured state sovereignty as well as the ICRC's own role as humanitarian law's leading drafter—the ICRC appropriated human rights thinking without adopting all of its key discourse while developing its own draft for the future Civilian Convention. By doing so, the Genevans hoped to gain widespread support from the Great Powers.
With the language of human rights gradually disappearing from the ICRC's drafting radar, this preliminary outcome affirms Marco Duranti's crucial remarks stressing the multiplicity of human rights, with their various interdependent and competitive qualities.Footnote 108 On the one hand, the turn to human rights thinking placed Pictet's team in a unique position to push for ever more rights’ protections long before the Teheran Conference had adopted the specific discourse of human rights in wartime. On the other hand, this turn remained highly selective and somewhat ambiguous. The removal of several categories of persons and the ICRC's cautious approach toward limiting state sovereignty increased the chances of future drafting success and reflected the historical lessons drawn from the Tokyo Draft's failure. At the same time, it complicates the still-dominant view in the contemporary literature that downplays the impact of the human rights revolution on the ICRC's quickly evolving drafting position in the late 1940s, as well as heralding its role on behalf of political prisoners more generally.Footnote 109
Gaullism at War
The most radical post-war shift in attitudes toward rights and civilian protection in wartime, however, had been taken on the part of the French government. Unlike its prewar predecessor, which had basically rejected the Tokyo Draft, the new Gaullist provisional government not only embraced this text, but also wished to radically transform its scope and nature in line with French legal visions and interests. The experience of total defeat and brutal counterinsurgency as an occupied country, combined with the dominant influence of human rights thinking in debates among the former victims of war on its preparatory commission, triggered a critical shift in French legal attitudes. The future Civilian Convention, Paris argued, was to be based upon, among other things, the Tokyo Draft and a human rights report which had been written by René Cassin, the Gaullist representative at the UNCHR.Footnote 110
Drawing inspiration from Cassin's wider efforts to reconstruct liberal and democratic values after the Vichy era, the French preparatory commission put a heavy stress on the concepts and language of human rights.Footnote 111 In the first place, it significantly widened the Tokyo Draft's originally limited scope by opening its doors to virtually all civilians in occupied territory. Furthermore, it strengthened the text's protections against the occupier's arbitrary counterinsurgency measures and, contrary to the ICRC, banned deportations and collective punishment of villages (a response to the Nazi atrocity at Oradour-sur-Glane).Footnote 112 Under influence of military officials, the French initially expressed reluctance, however, to adopt a comprehensive human rights agenda by strictly banning the use of reprisals, which they considered a potentially useful means to “retaliate” against structural violators of the law.Footnote 113 Further revealing the limitations of their human rights thinking, the French also opposed extending their plans to protect partisans in occupied territory to Viet Minh fighters.
When these French proposals were finally presented at the meeting of Allied government experts in mid-1947, the delegates witnessed fierce clashes between continental Europeans, who supported greater protections for civilians and partisans in occupied territory, and their Anglo-American colleagues, who sought to protect their security interests as present (and potential future) occupiers in Palestine, Germany, and Japan. Due to continuing pressure from the ICRC and other continental Europeans, the conference—which ended its plenary meeting with great applause after the president had talked warmly about the need for peace and the protection of “les droits de l'homme”Footnote 114—accepted a groundbreaking reference to colonial wars (the result of Castberg's continuing interventions to limit state sovereignty in warFootnote 115) and strict prohibitions against various arbitrary measures, to French surprise.Footnote 116
Apart from the continental Europeans’ voting majority, the ICRC's decision to avoid prioritizing issues other than the Civilian Convention, as it had done before the war, played a crucial part in this success. Equally important, the U.S. government initially took a fairly flexible position on the Civilian Convention's sections dealing with occupation, as it realized that it could no longer resist the normative shift which had taken place since 1945 favoring stricter regulation of an occupier's powers. Combined with the conceptual impact of different human rights agendas, these factors together laid the groundwork for an early and legally revolutionary drafting success in obtaining an ambitious draft of a Civilian Convention. At the same time, the delegates realized that, due to fierce Anglo-American opposition, they had been unable to provide neither partisans nor victims of air bombing with sufficient legal protection.
The Stockholm Moment
In the following months, Pictet's team began creating the first comprehensive drafts for a separate Civilian Convention to be presented at the upcoming Red Cross Conference in Stockholm. While doing so, Pictet indicated a serious interest in the work of the UNCHR: he read reports about the Commission's work and even attended as an observer its meetings in Geneva, in December 1947.Footnote 117 The effects of this continuing engagement with human rights thinking can be illustrated by his team's first drafts for the Conventions. Unlike previous texts, these drafts now expressly banned collective penalties and guaranteed basic rights for every person held in detention, including those partisans excluded from the POW Convention, thereby calling into question the older distinction between combatants and non-combatants, complained UK officials.Footnote 118 By mid-1948, showing their pragmatic impulses and political awareness, the ICRC's drafters had largely given up on Pictet's older plan to widen the POW Convention's restrictive outlook, focusing their attention instead on creating a robust Civilian Convention for enemy civilians and excluded irregulars.Footnote 119
At the same time, however, Pictet's team suddenly opposed using the specific discourse of “human rights,”Footnote 120 suggesting that such a reference might imply protecting civilians against their own government—a topic that the ICRC wished to outsource to the UNCHR.Footnote 121 For different reasons, Huber continued to defend a narrower human rights vision than Pictet, arguing that the ICRC could only act successfully when “reciprocity was granted,” which was not the case with “nationals of persecuting states.”Footnote 122 By prioritizing its own interests and framing human rights discourse as a UN doctrine for civilian categories to be excluded from humanitarian law, the ICRC opposed any reference to human rights in armed conflict, turning this particular vocabulary into a spectral legal phenomenon. This prioritization also reflected the organization's wish to have its own distinct Convention for enemy civilians alone. These decisions help to explain the later disappearance of “human rights” from the legal memory of most observers of humanitarian law. Indeed, it is remarkable how the human rights revolution, as a discourse, momentum, and a collection of concepts, was first appropriated by the ICRC, but then situated in a discursive borderland, as a casualty of concerns about potential opposition from the Great Powers, ideas of legal exceptionalism, and fears of restricting the ICRC's own institutional role at the global stage.
For similar reasons, at the final preliminary drafting meeting in Stockholm in August 1948, Pilloud opposed a proposal from a Danish delegate prohibiting transfer of the occupier's own nationals into occupied territory. In Pilloud's eyes, this proposal overly infringed upon state sovereignty, including control over a state's own nationals. Bringing to light the limitations of the ICRC's selective human rights agenda, Castberg, the Norwegian human rights lawyer, argued that the ICRC focused disproportionally on appeasing state demands and safeguarding the occupier's own sovereignty, thereby ignoring the fact that this proposal sought to protect enemy civilians against the occupier's arbitrary will, not vice versa. Stressing the rights of occupied nationals vis-à-vis the occupier's own nationals, Castberg saw this plan as being aimed at prohibiting settlers from taking the food supplies and homes of indigenous populations.Footnote 123
Partly due to Castberg's continuing interventions to adopt a more ambitious human rights agenda, the Stockholm Conference finally accepted a whole range of plans against arbitrary treatment. Emboldened by this breakthrough, Cahen-Salvador, a French Holocaust survivor and Cassin's subordinate at the Conseil d’État, drafted together with Castberg a special preamble for the Civilian Convention—the Frenchman later spoke of a “moral revolution.”Footnote 124 Clearly influenced by the recently accepted draft text of Cassin's UNCHR, the document they formulated sought to protect human rights “at any time and in all places,”Footnote 125 and it included protections against violence to life (Article 3 of the UNCHR draft text), torture (Article 4), and summary executions (Articles 8 and 9).Footnote 126 In the end, the Red Cross drafters accepted with overwhelming support the first comprehensive human rights text in history protecting civilians in belligerent, occupied, and even colonial territory, symbolizing the increasingly circumscribed nature of state sovereignty in this period.
Most remarkably, the Stockholm drafts, as they became known, featured a reference to “human rights” (despite ICRC skepticism), as well as a set of protections against summary executions and other forms of arbitrary treatment, even for “child soldiers,”Footnote 127 causing exhilaration among the victims of former Nazi empire. To be sure, these texts contained various loopholes, but they remained much smaller in size and number compared to the Tokyo Draft. On the whole, this outcome represented a major success for France and, to a large extent, Pictet as well. The absence of a restrictive British delegation, combined with the ICRC's Faustian bargain to protect crucial parts of state sovereignty in exchange for robust protections for enemy civilians, made it possible for Western Europeans to push for more far-reaching proposals (an example of the “cascading effects” discussed earlier) to protect human rights in armed conflict.
Urging a more robust sanctions mechanism, the ICRC's Legal Division even asked four international jurists, including human rights advocate Lauterpacht, to come to Geneva for a special meeting to draft a set of penal provisions for the future Conventions. While originally viewing criminal prosecution as anti-humanitarian, the ICRC now endorsed it as an important instrument in protecting the rights and dignity of individuals in wartime.Footnote 128 The rise of criminal accountability and individual responsibility connected with the surge of human rights thinking: these “legal flows” got entangled and indeed strengthened each other.Footnote 129 Merging them with older legal principles,Footnote 130 the jurists created several articles legislating individual criminal responsibility and fair trials. They also criminalized acts against the body, personal liberty, and dignity of individuals—another illustration of “cascading effects.”Footnote 131
The British government reacted furiously to these criminal law proposals from the ICRC as well as to the Stockholm Conference's larger outcome. Influenced by its anxieties as a result of the East-West tensions and wars of decolonization, the War Office wished to protect its (overstretched) armed forces from rear attacks by guerrillas, and it disliked the continental efforts at Stockholm to draw connections among and between the Conventions, human rights law, criminal law, and efforts to regulate colonial war. Striving to either scrap or disentangle these issues, one War Office representative argued that “it will need all our skill … to prevent overlap with the ‘Human Rights’ proposals.”Footnote 132 While simultaneously trying to exclude colonial war from texts discussed at global and European fora,Footnote 133 UK officials also opposed the preamble, as they believed it cast a “blanket” over the two Conventions “to safeguard the ‘principles of human rights’ in peace as well as in war.”Footnote 134
While less restrictive than its British counterpart, Washington also hardened its views in the wake of the “Stockholm moment.” The United States’ main concern lay with securing the interests of its armed forces while protecting them against inhumane treatment and rear attacks by Communist spies and saboteurs—a concern that grew in the wake of East-West tensions following the Berlin Crisis. The Americans, like the British, eventually opposed core elements of both human rights thinking and discourse. They suggested cutting the link between the POW and Civilian Conventions by means of extrajudicial editing techniques, by placing unwanted persons between rather than under these two treaties, as well as a special security clause. This particular provision would place captured (Communist) agents temporarily outside humanitarian law's scope. By trying to prevent these detainees from spreading intelligence through prison visits by outside observers, Washington aimed to protect its most vital security interests at this stage of the Cold War.Footnote 135
The Diplomatic Conference: Codifying “Human Rights”—Or Not?
The crucial final drafting debate over the Civilian Convention took place in the diplomatic conference's Third Committee, which was chaired by two Holocaust survivors—Chairman Cahen-Salvador, and the Bulgarian Vice-Chairman Nissim Mevorah. The Committee also included delegates from the Soviet Union and a number of postcolonial states, like India and Burma. The result was a rich but numerically weak concert of delegates from Asia, Latin America, and the Middle East, even though the diplomatic conference as a whole remained very Eurocentric. What is most striking about the Committee's work is that human rights-talk went from being at the core of humanitarian law's discursive future, to circulating around the periphery of the debates, to finally disappearing from large parts of the final texts. Although several key delegations—including some unexpected actors—continued to engage impactfully with human rights thinking, they also questioned the principle of applying individual rights and dignity to armed conflict not only from a political standpoint, but also discursively and conceptually.
The Scandinavian delegates, while often seen as major advocates of human rights in the twentieth century, vigorously opposed plans to completely outlaw the employment of prisoners of war for the removal of mines.Footnote 136 In their eyes, the collective rights of their own civilian populations weighed heavier than the individual rights of enemy soldiers, whom they held responsible for the minefields laid during the Nazi occupation, with potentially catastrophic effects for future POWs. In a similar fashion, Israeli and other delegates suggested prioritizing the collective rights of endangered civilian groups over the individual rights of enemy soldiers. For them, the concept of “belligerent equality,” a cardinal principle which said that the law's obligations and rights apply equally to every belligerent regardless of whether its acts of war had been unlawful or not, had lost its relevance in the age of genocide. An Israeli delegate, “bearing in mind the terrible suffering undergone by [my] people,” said that:
Up to the last war combatants alone were involved in the event of conflict. That was no longer the case during the Second World War, in the course of which a belligerent Power was manifestly bent on exterminating a whole people, massacring women and children in cold blood. What should a people do in such circumstances? Should it not rightly and dutifully seek to defend itself?Footnote 137
As one of the few direct references to the Holocaust during the entire drafting process,Footnote 138 the main goal of the Israeli proposal was to lower the threshold for resistance groups operating with a so-called “just cause” and in a combined legal space of aggression and genocide.
A recent example of such a case was the group of former Jewish partisans in Nazi-occupied Belarus who lacked protection under the then existing laws of war. Such armed groups, advocates argued, would only have to comply with some basic rules set by the Hague Regulations to receive the future law's backing.Footnote 139 These ideas remained silent, however, on measures that would subvert the aggressors’ human rights (e.g. those of German POWs held by Jewish partisans). Expressing concern about these proposals, the Anglo-American drafters ultimately crushed them to pieces—not because they cared so much about human rights, but rather due to fears of having to face similar partisans in the near future.
Illuminating the shrinking political space for imaginative lawmaking, the UK and United States also defeated numerous plans at the diplomatic conference to broadly protect the rights and dignity of civilians and soldiers in armed conflict. They rejected, among other things, attempts to question indiscriminate air bombing, substantially lower the POW Convention's threshold, or allow irregulars to fall under the Civilian Convention's shield of protection, as had been originally suggested by Pictet's team.Footnote 140 The Third Committee, where the Anglo-American security clause to the treaty was discussed under supervision of Committee president Cahen, had witnessed a major split between the ICRC and French, seeking to protect human rights for every “protected person,” and the closely collaborating British and American delegates mostly successfully arguing in favor of excluding Communist irregulars from both Conventions.
The remaining tool for creating a legally meaningful backup for irregulars excluded from the restrictive POW Convention was the preamble featuring a notable reference to human rights. Calling it an “integral part” of the Conventions,Footnote 141 Cahen's delegation continued to use human rights as a rallying cry at the diplomatic conference. While acting as a Monegasque delegate under French control, the son of De La Pradelle, the liberal Parisian jurist of international law, similarly argued that the preamble should “ensure that individual liberties which were recognized in peace-time were also respected in time of war,”Footnote 142 a reflection of a fairly consistent Francophone aim of converging human rights and humanitarian law. However, once the Western delegations supported an essentially anti-Communist proposal from the Vatican to include a reference to the “Divine Origins of Man,”Footnote 143 the preamble's debate became a major Cold War battleground, subsequently resulting in the instrument's elimination. This omission created lasting ambiguity about the relationship between human rights and humanitarian law—a love that dared not speak its name until the Teheran Resolution of 1968.
More tragically, however, Castberg's destroyed human rights preamble was given new life and meaning by the French in a manner that undermined his other key plan—to apply the Conventions directly to civil and colonial wars. Bringing the diplomatic negotiations out of their impasse, the French delegation, “embarrassed by [their] position in Indochina,”Footnote 144 had suggested applying the preamble's very general principles to “non-international armed conflicts” (NIAC).Footnote 145 In practice, however, this meant that the French, seeking to protect their colonial interests, prevented any serious encroachments on their sovereign discretion, to British satisfaction.Footnote 146 Many of the (post-)colonial powers therefore viewed it positively, partly because the drafters removed the original text's reference to human rights.Footnote 147 The new text was finally adopted by the conference as Common Article 3 (CA3).
So, while causing tension, the malleable concepts of human rights, humanitarian law, and empire were eventually brought into harmony with each other by means of shrewd French drafting techniques. In French eyes, there was no necessary contradiction between promoting human rights on the international stage and protecting colonial sovereignty. Their new draft for CA3,Footnote 148 which was based on Cahen's coedited human rights preamble, did not so much contradict empire as allay its concern about outside interference in its own affairs. France had already successfully removed, in 1948, Castberg's suggested reference to colonial wars in favor of embracing “non-international armed conflicts,” and they blocked CA3 from potentially recognizing the Viet Minh as a belligerent. (The concept of self-determination was legally enshrined only after the end of formal empire three decades later.)Footnote 149 By significantly limiting the article's scope and its legal obligations, the French succeeded in protecting their colonial state's authority to decide whether it would apply it to so-called “policing” operations, which exemplifies the colonial encounter's constitutive impact on the making of humanitarian law. In a stealthy move, they cracked the enigma of absolute sovereignty without collaterally damaging their colonial state's discretionary powers.
Even though some concepts and vocabulary of human rights were removed or hidden at the margins of the Conventions’ texts, the diplomatic drafters remained largely committed to applying human rights thinking to situations of armed conflict. Showing the impact of “cascading effects,” they adopted the right to a fair trial;Footnote 150 the right to freedom of religion;Footnote 151 the right to counsel;Footnote 152 the right to appoint an interpreter;Footnote 153 the right of communication with Protecting Powers;Footnote 154 the right of appeal;Footnote 155 the right to humane treatment; the principle of non-discrimination;Footnote 156 the principle of human dignity;Footnote 157 and the right to have rights.Footnote 158 In addition to these innovations, the drafters also accepted surprisingly quickly a whole range of prohibitions against brutal counterinsurgency measures, from “extermination” (not genocide) to hostage taking.Footnote 159 Contrasting with the codification difficulties of the interwar years, the suggested ban on hostage taking failed to spark any debate at all, leading to its acceptance at the first reading and making newspaper headlines across the globe. Whereas the Americans had given up on this point at an early stage, the British finally did as well once they realized the overwhelming resistance they would be facing.Footnote 160
Equally important, to the surprise of the ICRC as well as the French,Footnote 161 the Soviets strongly supported many of those plans to empower the rights of civilians and POWs, often closely collaborating with the Western European powers, while creating the conditions for the revolutionary drafting success in August 1949. Anglo-American attempts to undermine the proposed limitations on the death penalty were successfully deflected by a surprisingly united opposition of former victims of the Nazi empire. The two major liberal powers that sought to maintain their sovereign wartime powers were ultimately forced by, among other things, the universalistic potential of their own wartime declarations to accept significant political costs at the final diplomatic conference.Footnote 162
As most observers recognized, the signing of the four Geneva Conventions after a great game of lawmaking represented a “revolutionary” shift in the history of the laws of war.Footnote 163 Whereas preexisting international treaties generally agreed on the legality of vicious counterinsurgency measures like summary executions,Footnote 164 the Civilian Convention banned many of these with a stroke of the pen, providing occupiers the right to repeal those penal laws that sought to turn back the clock.Footnote 165 The treaty's architects had made remarkable steps in pivoting the laws of war from focusing on soldiers’ rights to protecting enemy civilians. They accepted, for the first time in history, a “bill of rights” for individuals other than soldiers and questioned absolute state sovereignty in myriad ways.Footnote 166 In fact, they imposed obligations on parties even if they had not signed the Conventions or simply lacked subjectivity under international law. Whereas under previous laws of war the protection of individuals remained contingent upon the state's diplomatic obligations, this principle came under severe pressure as a result of the law's embrace of individual legal personality.
Despite its birth defects, Common Article 3 represents the first binding post-1945 international legal provision that tried to break with absolute state sovereignty in domestic and colonial affairs.Footnote 167 The Civilian Convention also symbolizes the first binding international agreement in history recognizing human rights protections for civilians in belligerent and occupied territory. In 1945, the drafters of the UN Charter had paid merely lip service to the idea of human rights,Footnote 168 the European Convention of Human Rights was adopted only a year after the diplomatic conference's closure,Footnote 169 while the UDHR remained a non-binding statement of moral principles.Footnote 170 Those two provisions of the Conventions personify the first major post-1945 challenge to the idea of absolute state sovereignty,Footnote 171 and illustrate the entangled emergence of interacting “legal flows” such as human rights, humanitarianism, international criminal justice, and postcolonial sovereignty in this post-war epoch.
IV. Conclusion
This article has demystified a crucial misconception—that human rights had nothing to do with humanitarian law until the legal revolution of “1968,” rather than having a transformative effect on the 1949 Geneva Conventions’ foundations. Recovering this past matters not just historically, but also theoretically and conceptually. Unearthing international law's history brings to life the original registers of key terms, thereby fracturing entrenched understandings of its principal ideas and norms.
This genealogical approach also has significance for scholars exploring the development of international law. In challenging conventional theories, this article has demonstrated the impact of contingency and competing legal trajectories on the Geneva Conventions’ drafting process. Advocates of humanitarian law supported human rights in their own way while clashing over which and whose rights should come first.Footnote 172 For example, the Civilian Convention seeking to protect enemy civilians against inhumane treatment failed to strictly forbid the use of starvation as a weapon of war. Similarly, it closed its doors on many different categories of civilians, such as the states’ own nationals and political prisoners.
This element, which alludes to the deeper intricacies in the history of international lawmaking,Footnote 173 problematizes those accounts emphasizing conceptual stability and segregation in international law. Moreover, the drafters faced competition from rival projects (such as self-determination, genocide law, soldiers’ rights, human rights law) and were supposed to respect the demands of the institutions, as well as their partners, that they represented. The history rediscovered in this article exemplifies how the rise of human rights remained contingent upon the interplay of strategy, power, and of agency, as well as the political space available for imaginative lawmaking.Footnote 174
In terms of historical legacies, it is striking that the ICRC's post-1949 efforts to preserve humanitarian law's distinctiveness tended to minimize the role of human rights thinking on its historical development. For example, in 1966, with the publication of his famous essay coining the term of “international humanitarian law” (IHL), Pictet relegated human rights to a junior position under IHL's umbrella, calling the latter “a province in its own right.”Footnote 175 He also archived his own human rights brochure. Similarly, Pictet's Commentary from the 1950s, which has deeply shaped scholarly understandings of humanitarian law's history, referred only “tentatively … to human rights.”Footnote 176 Reinforced by the Anglo-American desire to disentangle human rights from humanitarian law, the ICRC's stress on the latter's distinctiveness has entrenched the literature's view of disciplinary partition and conceptual stability.
These stories of the past and present reveal three crucial details about humanitarian law for contemporary legal scholars. First, they demonstrate the discipline's ability to clothe its efforts in historical terms while noting that there is nothing “new” about them.Footnote 177 The field's historical narratives not only evolve according to generational demands but also create more humane interpretations when speaking to particular needs.Footnote 178 The Commentary’s effacing of history provided the ICRC with the political instruments to reclaim its role as legal expert and to revive the discipline's future in the years after the destructive world wars. For Pictet, this required first legally reconfiguring and then making real a distinctive international legal discipline consisting out of “fundamental principles,” “guardians,” “unique origins,” and other invented traditions, which have deeply shaped our understandings of humanitarian law and human rights, as well as their historical relationship.Footnote 179
Second, these stories show, too, that despite the immense controversy surrounding CA3's making, the ICRC carried on with its agenda of combining human rights thinking with internationalizing internal armed conflicts. It often went much further than its newly updated codebook strictly allowed for, using vernacular human rights norms as a means to pressure states to treat detainees more humanely, regardless of their legal exclusion, or other legal barriers. This illustrates how former drafters like Pictet wished to escape from the prison of history through embracing pioneering attempts to apply human rights thinking to wars of various kinds, which had generated a normative shift in attitudes toward sovereignty itself.
When the International Commission of Jurists lobbied for a human rights resolution to be introduced at the Teheran Conference, in 1968, as a response to CA3's perceived malfunctioning in the Global South,Footnote 180 the resolution's advocates continued rather than defied past efforts of Pictet and others who had called for the protection of human rights in armed conflict. Yet these remarkable steps raise important and contentious questions for contemporary scholars about CA3's formative scope, the idea of exterritoriality, and the idea of humanity in war. This is not just morally challenging—for it requires us to recognize the violence sanctioned under humanitarian law that may threaten to destroy human life on a truly global scale.Footnote 181 But it also accentuates the article's larger relevance to contemporary legal questions about international law in wartime.
This connects to the third and last point; namely, that the Conventions’ significance lies not so much in codification itself, but rather in the rights’ concepts and norms that emerged from them.Footnote 182 As suggested previously, it is crucial to bear in mind that these norms had the potential of strengthening and undermining other rights regimes, as they featured inclusive and exclusive impulses,Footnote 183 and both humane and inhumane consequences, and they could be understood and arranged in seemingly contradictory ways (seemingly, because the actors themselves saw things often in a starkly different light).Footnote 184 Among other seeming contradictions, drafters banned racial segregation (after repeated demands from Jewish survivors) while leaving Jim Crow and colonial laws unaddressed;Footnote 185 they opposed maltreatment while aiming their “telescopic philanthropy” beyond the suffering of animals in war;Footnote 186 they rejected deportations while expelling millions of Germans from their homes; and they outlawed extermination in response to the Holocaust while privately contemplating its nuclear equivalent.
Reviving an old Tolstoyan criticism of the laws of war, these legal blind spots raised fundamental questions about the project itself in the years after 1949. Some critics believed that the project's core idea of humanizing warfare through rights’ promotion was not just highly selective, but also deeply ambiguous and hierarchical in its aims. Why, they asked, should we concentrate our moral energy on limiting the effects of war through rights’ norms, rather than eliminating its root causes—a critical question that certainly has not lost its relevance in the age of endless war?Footnote 187 Others feared that leaving “major evils” (e.g. strategic bombing) deregulated while strictly outlawing “minor evils” (torture) would send a wrong signal: humanized war, they feared, would fail to shock the “conscience of mankind” and, signaling a wider fear of a resurgence of war, lower the threshold of war itself.Footnote 188 At issue here was not just the legitimacy of a field “at the vanishing point of [international] law”—which, in turn, placed human rights at its own vanishing point,Footnote 189 but also that of the post-1945 international legal order as a whole.
In sum, claims that persons in war other than soldiers possessed rights as victims of war, combined with the drafters’ appropriation of human rights thinking, led to major conceptual shifts and flows in the meaning and significance of international law in wartime, as well as in the specific relations between civilians and soldiers, colonizers and colonized, and between human rights and humanitarian law. Unlike what many have suggested previously, these two rights’ regimes often overlapped, triggered conceptual tension, lacked stable meanings, caused unintended consequences, and created unique possibilities at crucial points in time that are now largely forgotten. Analysis of these revolutionary legal interactions and trajectories from a less disciplinary-confined and more process-oriented perspective reveals a much richer history, present, and future for international law, than the current literature recognizes. Amplifying this point, scholars and practitioners should pay closer attention to the meaning and specific contexts of the making of humanitarian law, as a site for exploring legal thought and reimagining international law. During the drafting of the 1949 Geneva Conventions, actors from across the political spectrum discussed questions relating to state sovereignty, human rights, criminal law, citizenship, race, and empire—all key matters that deserve much broader scholarly consideration beyond the niche of the laws of war field alone.
