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The Geneva Conventions were drafted in 1949, in another world. The world of the Geneva Conventions' "framers" is still familiar to all of us, though increasingly it is familiar from movies and books rather from the evening news or, still less, our own lived experience. The world in which the Conventions were drafted was a world of states: powerful states, weak states, predatory states, law-abiding states, but states all the same. Soldiers wore uniforms designed by their states, carried weapons issued by their states, obeyed orders given by their commanders, and fought against the armies of other states.

Well--most of the time, anyway. It's true that even then, there were actors and conflicts that didn't fit the mold. There were partisans who wore no uniforms and answered to no recognized authority, and guerillas and resistance fighters who straddled the line between civilian and combatant. But although it is sometimes hard to make students see this, lawmaking is an imaginative enterprise: lawmakers look at the existing world, project onto it an image of a better, tidier world, and then try to develop contingency plans for dealing with various imaginable forms of untidiness. In this sense lawmaking is inevitably backward looking, because none of us is very good at correctly predicting future changes.

So the diplomats who negotiated the Geneva Conventions took the raw materials already at hand, from the Hague Conventions and from international custom, and coupled these with their own searing sense of what had gone wrong in the world war just ended. In a sense, the Geneva Conventions read like an attempt to revisit the Second World War, without the mess, confusion, cruelty, and slaughter of civilians.

Publication Citation

46 Va. J. Intl. L. 197-207 (2005)