Civilian Protection: Some Thoughts on the Historical Origins of the Norm

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When we think about the historical origins of civilian protection, we tend to do so in a particular way. We associate the emergence of the norm with the development of the principles of discrimination and, to a lesser degree, proportionality in the Geneva Conventions. We then link the idea of protecting vulnerable individuals and groups in times of conflict to the elaboration of the international legal framework following the devastating events of the Second World War. In this account, what occurred before 1945 is of little consequence. In what follows, though, I want to suggest that by looking back at the decades preceding the start of the Second World War, and outside ius in bello discussions, we might see that the historical origins of the norm are older, and surely broader, than often thought.

The Conventional account: Civilian protection after World War II

Conventionally, the idea of protecting civilians from the effects of war, or from even being a target of the war, would originate in the aftermath of World War II. At best, for those who know about it, the attempt by the International Committee of the Red Cross to set up in 1929 a Commission on the treatment of civilians, might be seen as a precursor – though the correlative Conference held in Tokyo in 1934 is described as a failure, given the international environment of the time. After all, as much of the existing scholarship in Political Theory, Legal Theory, and politics tells us, while the moral and conceptual roots of protecting non-combatant populations are old and date back to the origins of Just War Theory, in the 19th century, when the Laws of War were codified, not much was mentioned on the matter.

We are often told that before World War II, civilians and their protection were not so much matters of preoccupations in debates about waging war. Indeed, in Western conferences, treaties and codes concerned either with the ius in bello or with humanitarianism, clear references to the protection of innocent people were rare, if present at all. Many of these documents, we are told, referred to distinctions between combatants and non-combatants and others, more or less explicitly, to some sort of idea of non-combatant immunity. Experts agree, however, that that distinction served military purposes rather than civilian interests and was rather about limiting civilian casualties than about protecting non-combatants. Protection was in the 19th century an idea developed with regards to soldiers and wounded combatants.

Hence, the events that characterised World War II sparked the legal codification of the norm. The first procedures in this direction after the war were the Nuremberg trials. The Allies charged numerous members of the Nazi leadership for a series of accusations falling under three classes of crime: crimes against peace, war crimes and crimes against humanity. What became obvious with the trials was both that there was a positive obligation on the side of Nazi elites to make the distinction between civilians and combatants and that the lack of respect of this principle was punishable. Some have claimed that many of the imputations at Nuremberg were indeed about breaches of what became soon after the principle of non-combatant immunity in International Humanitarian Law.

In terms of broader normative advancements, in the following years the United Nations passed several resolutions dealing with crimes against humanity and genocide, but it was in 1948 that two main documents touching upon the rights and the protection of (though not exclusively) civilian populations were ratified: the Genocide Convention and the Declaration of Human Rights. Crucially, in 1949 the norm of civilian protection took full form, as it was codified in what came to be the Fourth Geneva Convention and in Common Article 3 to all the Conventions. The conventions put a constraint on state behaviour whilst generating a set of expectations to regulate how states should treat civilians. Civilian protection was further fostered in 1977, as two Protocols were added to the 1949 texts, dealing specifically with non-combatant populations in international, colonial and domestic armed conflicts.

I do not deny that this is how the legal history of the norm of civilian protection goes, since its entrenchment in the framework of International Humanitarian Law and Human Rights Law. However, I also believe that it might be naïve to assume that in 1945, lawyers, humanitarian actors and other international agents woke up one day, shocked by the horrors of World War II, and initiated discussions on the protection of civilians. The broader point I want to make is that by focusing on the laws of war in the 19th century as the sole origin of the norm or by not giving enough attention to its beginnings, we risk omitting a whole part of the story. This, though, is an instructive account that might help us understand how is it that civilian protection looks the way it does today. The story that follows is one of responsibility, recognition and innocence.

On the pre-history of civilian protection: from the 19th century to World War I

First of all, a consideration on the term “civilian”. In formal international discussions, the word is recorded to have emerged towards the end of World War I. As we are currently in the centennial commemoration of the Great War, this might be something worthy of note. Interestingly, before then international and military documents and treaties would occasionally refer to “unarmed inhabitants”, “non-combatants”, “enemies”, “occupied population”. Some might argue that the absence of the term in the nineteenth century signals a lack of international interest on the matter. However, various discourses and practices recorded before 1919 indicate at times a utilitarian interest, at other times a philanthropic concern, as to the fate of “vulnerable” populations. This reveals that the origins of the idea might be older and possibly elsewhere than what we commonly think.

If we go back to the 19th century, European powers often advanced justifications for going to war in order to allegedly “save strangers.” They would do so in the name of largely Christianity, at times Humanity and most often Civilisation. To be sure, these “strangers” were not termed civilians but were those deemed vulnerable, innocent, or the victims of an unjust oppression. European Powers would intervene militarily in purportedly “less civilised” areas, to save populations considered insufficiently protected by local authorities that, in turn, were not deemed responsible enough. Britain and France, for instance, would regularly intervene to protect what they depicted as “innocent” (and often Christian) populations in the Ottoman Empire.

These were ad hoc measures occasionally accompanied by Minority Treaties imposed on specific authorities to protect and recognise groups and their rights. With World War I, protecting and recognising minority groups and their rights became a matter of broader international concern. At the Paris Peace Conference, the formal recognition of new states created following the breakdown of the Ottoman and Austro-Hungarian Empires was made conditional upon the signing of treaties granting protection to specific minority groups. At the same time, members of these groups could directly address petitions to the League of Nations to complain about mistreatments individually. Certainly, the decision at the Peace Conference to enforce Minority Treaties was happening outside of discussions on laws of war. The matter, however, might require further attention. After all, the codification of such treaties took place in a Peace Conference that was the direct result of a long-lasting and destructive war.

Perhaps the influence of the post-World War I twin notions of recognition & protection has been underappreciated because of the ambivalence of the Minority Treaties. Certainly, these treaties led to recognition and empowerment of individuals through the allocation of special rights. However, their correlative was also exclusion and deportation, in the name of that very same recognition. If this is a dark part of the story of protection of civilian populations, it is also one that might need further elucidation. In the following decades, lawyers and international actors found a response to this dilemma through the formalisation of individual human rights granting protection to all, beyond national allegiances and group membership. But even the post-1945 normative tension between notions of genocide (collective protection) and crimes against humanity (focused on the individual) shows us that what happened before 1945 is still relevant.

The end of World War I was also the period in which the implications of International Criminal Law were first consistently debated. Indeed, at the Paris Peace Conference, and within the Commission on the Responsibility of War where the laws of war were debated, major discussions revolved around the possible prosecution of the individuals – one in particular – deemed responsible for the war. Debates lasted for months: should the German Kaiser be prosecuted? But if so, would then the German people think that they are innocent? But, they aren’t, every German citizen is also responsible! Etc. etc.

While we often think about individual criminal responsibility in opposition to collective guilt, we also forget to speak about its correlative, collective innocence. After all, the question was, and still is, relevant: are all civilians innocents? Does innocence equate with absence of guilt, or is it only a matter of harmlessness? At the Paris Conference, the peacemakers were already dealing with questions that would emerge in Nuremberg, and, later, in the 1990s too. The International Law of 1919 neither allowed for the protection, nor for the prosecution of individuals specifically. The Paris peacemakers were therefore unable to legally enforce the international prosecution of the Kaiser, though they did propose that after the conference that should happen in some form. Also, even though repudiated by the Allies, in 1921 German authorities held several trials in Leipzig to try, in compliance with the Treaty of Versailles, alleged German war criminals. Though less in the legal sphere than politically and morally, the end of World War I seems to constitute a fundamental moment in questioning notions of guilt, innocence and protection. As 1919 made clear, if guilty ones became specific individuals made responsible for crimes committed, civilians also became increasingly viewed as victims deserving protection (and thus specific rights).

A final word on the past & present of civilian protection

As my brief analysis reveals, the history of protecting civilians is much older than commonly thought. Originating (at least) in the nineteenth century, it continues throughout World War I and the Paris Peace Conference, until the outbreak of World War II and the ensuing codification of norms in international law. It is a story about individuals and groups needing to be recognised and protected from other individuals and groups; it is also a story about a supposed “responsibility to protect”, at different times and in different ways, those deemed vulnerable, or innocent. These are themes and tensions that are not so unfamiliar today, in the context of civilian protection. In seeking to address our own contemporary challenges of protection, we might benefit from a closer look at how ideas and practices emerged, and what predicted and unforeseen effects they produced.