Human rights in war? For many, it creates a feeling of cognitive dissonance − the mental clash that occurs in our brain when right and wrong are placed in the same category. So it does for David Petraeus, the retired US Army general and former CIA director, whose critique of humanizing warfare through human rights law has brought the question to the fore again.

In a recent article for The Times, he has argued that applying human rights law to armed conflict has placed at risk the fighting capacity of NATO-powers like Great Britain. In Petraeus’ eyes, it has triggered not only the ‘steady displacement’ of the 1949 Geneva Conventions, the most important rules ever formulated for armed conflict, but also the erosion of the very foundations of the ‘special’ Anglo-American relationship.

When reading his article, I could hear the voices of Anglo-American officials revising the 1949 Geneva Conventions. Like Petraeus, they feared at the time that drawing connections between humanitarian and human rights law would undermine their strategic interests. At various points in time, they expressed alarm about plans to protect the ‘principles of human rights in peace as well as in war.’

As the Geneva Conventions fail to mention human rights, there continues to remain controversy about their exact relationship. Whereas some argue in favor of applying human rights to armed conflict, others like Petraeus fiercely resist it. But both sides surprisingly often agree that the Conventions and human rights had remained fundamentally distinct in 1949.

I challenge this bipartisan view. In a recently published article for the American Journal of International Law, I demonstrate that leading drafters from especially − though not only − continental Europe widely embraced human rights thinking to better protect the rights of soldiers and civilians in future armed conflicts. While experiencing major differences, these legal architects generally approved of human rights thinking as a unifying moral imperative in their collective response to Nazi empire.

A critical piece of supporting archival evidence I discovered was a human rights brochure written by Jean Pictet, the leading drafter of the International Committee of the Red Cross (ICRC). He is often seen as the main architect of the Conventions. In his extraordinary brochure, entitled La défense de la personne humaine dans le droit future (1947), he widely adopted the language of human rights, acknowledging that the ICRC’s main objective was to protect the rights and dignity of human beings in wartime, a clear example of how human rights played a transformative role in shaping humanitarian law’s development.

At the same time, in the article I show why, and how, this connection was eventually contested in different ways and for different reasons by the very same people, including Pictet, who had first promoted it. In fact, they surgically removed the words of ‘human rights’ from the final text, creating lasting ambiguity about their precise relationship with humanitarian law. It illustrates how the rise of human rights was far from straightforward but contingent upon various factors, from agency to the space available for imaginative lawmaking.

One important reason for writing this article was to reveal the legislative impact of contingency and competing legal trajectories on the making of international law. It problematizes those accounts, including the one of Petraeus, emphasizing conceptual stability and segregation in international law − one field of law applying to peacetime, the other in wartime. It also provides an antidote to regressive arguments questioning the relevance of human rights for today’s armed conflicts, with the aim of resisting attempts to lower the threshold of accountability − one that many former drafters would have probably considered as being even far too modest.

Enjoy free access to this article, Human Rights in War: On the Entangled Foundations of the 1949 Geneva Conventions, published in the American Journal of International Law, for a limited time only.

Photo credit: International Committee of the Red Cross Audiovisual Archives

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