The 1949 Geneva Conventions After Seventyyears

Global Governance 25 (2019) 359–369

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The 1949 Geneva Conventions after Seventy Years The Fate of Charity in Turbulent Times

David P. Forsythe

1 Introduction

Every ten years, essays appear marking another anniversary of the 1949 Geneva Conventions. Many of these essays note the importance of the four landmark treaties that comprise the cornerstone of modern international humanitarian law (IHL)—aka the law of armed conflict or the laws of war. The essays usually observe the considerable development of norms in this part of international law, then move on to emphasize the lamentable lack of proper application. There is a predictable pattern to this commentary. Not surprisingly, the pattern is similar to evaluating international human rights law: normative development, maybe even a normative revolution, but lax enforcement. These two international legal firewalls against barbarianism, human rights and humanitarian law, show the same general characteristics.1 But then both bodies of law are made by states, which usually have other pri- orities especially when it comes to application. Moreover, both bodies of law are affected by important nonstate actors, armed and unarmed. What could possibly be said that is new on this hoary subject? From a political perspective, by which I mean a focus on power and policy rather than on legal verbiage and logic, there are some developments which, if not entirely new, still merit a new commentary. Many of these factors are negative, but a few are at least partly positive. Some may turn out to be positive, but are indeterminate at the moment. That framework is in itself new, and a broad approach gives insights.

1 On the notion of international legal firewalls against barbarism, see Ignatieff 1999, 5.

2 Insights from History

It has never been easy to develop IHL. Many states, especially powerful ones, have not been willing to create and use an authoritative enforcement mecha- nism. When it comes to regulating war, and thus situations where the fighting parties consider the relevant issues worth violence, states may endorse some limits in what passes for peacetime. But many of those with power do not want an authoritative body looking over their shoulder about how they apply (or not) the humanitarian norms. The first Geneva Convention of 1864 was the result of a version of Chris- tian charity as practiced by a few Protestant evangelicals in Geneva. In 1863, a group of five advocates, who became the International Committee of the Red Cross (ICRC), initiated a network of aid societies to improve care of the war wounded—now the International Red Cross and Red Crescent Movement. One year later, they advanced a treaty that recognized the neutrality of both the wounded and those that treated them.2 In this way, the one lawyer among them, Gustave Moynier, sought that the notion of charity on the battlefield should be endorsed by public international law. The only one of the five not known for religious commitment, General Guillaume Henri Dufour, drafted the 1864 treaty with Moynier while their colleague, Henry Dunant, pushed for a broad concept of humanitarian neutrality. Modern IHL originated with notions of charity, but state interests were always there. By 1864 there was mass conscription of soldiers, with publics interested in their fate, especially in the more numerous democracies or quasi- democracies, with better means of communication. States going to war had to worry about support on the home front; ergo, state support for better care of war wounded. There was immediate opposition to the idea of Red Cross and the 1864 Geneva Convention on two primary grounds. If one was concerned about the evils of war, better to concentrate on promoting peace rather than limiting war. And even if one wanted to curtail war’s negative effects, better to have a short unlimited war than to draw it out with so-called humane restrictions. This last argument in particular has a long history despite its rejection by Otto von Bis- marck and other successful practitioners of power politics of that time. For these two reasons and more, an effort to revise the 1864 Geneva Conven- tion so as to clarify wording and make it applicable to victims of naval warfare (and not just land engagements) had to wait until 1906. States did not exactly

2 Forsythe forthcoming 2019.

Global Governance 25 (2019) 359–369