The view of the past in international humanitarian law (1860-2020)

Abstract

This essay explores how the drafters of international humanitarian law (IHL) incorporated the past into their work between 1860 and 2020, and how they approached time, memory and history as indicators for this view of the past. Its sources consist of the complete series of general conventional and customary IHL instruments as well as the leading commentaries on them. For the IHL view of time, the impact of legal principles on the perception of time is scrutinized. Balancing nonretroactivity against customary international law and the humanity principle broadens the temporal scope towards the past, while balancing legal forgetting against imprescriptibility and State succession broadens it towards the future. For the IHL view of memory, dead persons and cultural heritage are seen as crucial vectors. Attention to the fate of the dead has been a constant hallmark of IHL, while care for cultural heritage has an even longer pedigree. For the IHL view of history, the essay highlights that the International Committee of the Red Cross has consistently advocated State duties to the war dead and has organized an archival infrastructure to satisfy the need - later converted into a right - of families and society to search for the historical truth about them. Furthermore, the responses of IHL drafters to five major historical challenges are examined. First, while in the realm of war crimes impunity prevailed for most of history, after World War II a system of war crimes trials was mounted, culminating in the International Criminal Court. Second, soul-searching about the atrocities of World War II, including the Holocaust, helped create Geneva Convention IV of 1949, which protects civilians in wartime. Third, the human rights idea was not fully embraced by IHL treaty drafters until 1968. Fourth, the IHL approach to civil wars was slow and incomplete, but its appearance in 1949 and coming of age in 1977 were breakthroughs nevertheless. Fifth, colonial conflicts were not recognized as international wars in 1949, when this could have had considerable impact, but only in 1977, when decolonization was largely over. In all cases, the responses to these historical challenges came after long delays. Clearly, the IHL view of the past has to be assessed on a transgenerational scale.