The Geneva Conventions and the Normative Tenor of International Relations

Sonia Cardenas

The Geneva Conventions have come under assault in recent years. Critics depict them as outmoded treaties, incompatible with twenty-first-century wars. Indeed, in an age of 'global terror', the Conventions often conjure up archaic images of prisoners of war and an idealistic Red Cross. Some observers have gone so far as to suggest that while the Conventions may have been relevant during the days of 'knights and chivalry' they are woefully inadequate for modern warfare.

More specifically, the perception is that the 1949 Conventions have three dominant characteristics that make them largely irrelevant in contemporary world politics: they are mostly prohibitive documents, restricting a range of state action; they are isolated treaties, prone to legalism and abstractness; and they derive largely from an ethical impulse to protect humanity. These popular notions, in turn, feed into the assumption that the Conventions are misguided and inappropriate doctrines for a post-Cold War world, dominated by a global 'war on terror' in which states may have to act exceptionally to protect their national security.

In fact, a close analysis of the broader politico-normative context underlying the creation and evolution of the Geneva Conventions suggests otherwise. This chapter advances three arguments, which together challenge critical views of the Conventions. First, the Geneva Conventions have been as important for generating new international norms as they have been for constraining state action. Second, the Conventions cannot be understood without examining the significance of two parallel and reinforcing developments – the United Nations Charter (1945) and the Universal Declaration of Human Rights (1948). Third, while clearly invoking ethical conceptions, the Geneva Conventions have always been rooted in a pragmatic interest in limiting war.

Reconceptualizing the Conventions as central normative instruments, linked closely to prominent international institutions and reflecting states' political interests, has profound implications. On the one hand, this view provides a more complete and accurate picture of the Geneva Conventions. On the other hand, it reveals that, far from being anachronistic documents ill suited to contemporary political imperatives, the Conventions' basic premises are as relevant today as they were last century.

A NEW NORMATIVE ORDER

As the first set of international treaties to address humanitarian issues, the Geneva Conventions have long been considered basic constraints on state behavior. Yet despite their obvious restrictions, it would be a mistake to view the Conventions as exclusively prohibitive in nature. Taken in their broader historical context, the Geneva Conventions of 1949 have been most remarkable in generating a set of expectations to govern global relations. They have created international standards regulating how states should treat civilians (i.e., human rights) during armed conflict. In particular, they have differentiated between combatants and noncombatants; defined the legitimate objectives of war; and stipulated how prisoners of war should be treated. These standards, in turn, have been a cornerstone of the post-Second World War international normative order, elevating the status of regular human beings and reconstituting the traditional contours of state sovereignty.

The prohibitive aspects of the Geneva Conventions are readily apparent. Indeed, on one level, the Conventions clearly forbid states from acting inhumanely during armed conflict. For example, states may not mistreat members of the armed forces who fall sick or are wounded in the battlefield (First Geneva Convention) or at sea (Second Geneva Convention), those who are taken prisoners of war (Third Geneva Convention), or civilians during war (Fourth Geneva Convention). Two protocols added in 1977 further limit what states can do during international armed conflicts (Protocol I) and non-international conflicts (Protocol II).

Additionally, Common Article 3, which appears in all four of the Geneva Conventions, expressly prohibits a catalogue of acts: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

In determining the extent to which the Geneva Conventions are prohibitive international instruments, it is crucial to compare the 1949 Conventions to previous developments. The Conventions certainly have deep roots in international affairs, especially in the nineteenth century, but the extent to which the Conventions are similar to and different from its precursors still needs to be clarified.

The Geneva Conventions can be traced in part to previous international developments restricting the scope of state action in armed conflict. The most direct antecedent was the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. More indirectly, however, a large body of customary rules had evolved over the centuries to regulate armed conflicts, whether in the form of codes of conduct or bilateral treaties between belligerents. And between the 1864 Convention and the adoption of the four Geneva Conventions in 1949, relevant international legal documents prohibited the use of weapons (such as the 1868 Declaration of St Petersburg and the 1925 Geneva Protocol), behaviors contrary to the laws and customs of war (The Hague Conventions of 1899 and 1907), and the inhumane treatment of prisoners of war (the 1929 Geneva Convention).

Despite building on important precedents, the 1949 Geneva Conventions also represented a crucial break from the past. Substantively, two important innovations are notable: the Fourth Geneva Convention and Common Article 3. While numerous aspects of the other 1949 Conventions could be found in earlier documents, the Fourth Convention's focus on the treatment of civilians was unique. Earlier instruments had referred only to members of the armed forces; states...