Our contributing editor Disha Karnad Jani introduces her interview with Prof. Jennifer Pitts (University of Chicago), focusing on her recent book Boundaries of the International: Law and Empire (Cambridge: Harvard University Press, 2018):
Tag: Legal History
Silencing the Berbers
By guest contributor Rosalie Calvet
A little less than a year ago, a prestigious American university hosted a conference about French-Algerian history, gathering the leading specialists of the topic.
A prominent French scholar closed his presentation by opening the debate to the audience. Immediately, one of his North American fellows asked “Since you do not speak Arabic, do you feel somewhat limited in your work on French Algeria?”
“I see what you mean,” he replied, “but fortunately, we have the archives of the colonial administration, so French is enough.”
Suddenly, a man, sitting on the first row of the audience, stood up, and, speaking in French, replied “I am Algerian. I was born before the Independence. You taught us French and nothing else. We had to learn Arabic after the War of Liberation. Arabic must come back to Algeria.”
And then, another man, sitting next to him, added “Arabic … and Berber. Nobody talks about Berber. Historians have forgotten that North Africa is the land of the Berbers.”
Who are the Berbers?
The indigenous population of North Africa, the Berbers call themselves i-Mazigh-en, “free-men” or “noble” in Tamazight. If over the centuries, the Berbers have split into smaller communities, the Chleus in Morocco, the Touaregs in Libya and the Kabyles in Algeria, they have remained faithful to a clear sense of unity. The history of the Berbers is that of an identity constantly reshaped by internal and external mutations, of cultural blending and ongoing intellectual developments and innovations. Invaded by the Phoenicians around 800 BC, the Berbers were incorporated into the Roman Empire in 200 BC and their land constituted the cradle of European Christianity. The Arab Conquest of the seventh century led to the merging of Berber and Arab culture, the conversion to Islam and the fall of the Christian Church. Between the eighth and ninth centuries, a series of Muslim-Berbers dynasties ruled over the Maghreb (the Arabic name for North Africa) achieving its territorial and political unity. Most of the region, except for Morocco, passed under Ottoman domination in 1553 and remained part of the empire until the nineteenth century. During this period, the three political entities composing modern North Africa emerged. While Tunisia and Morocco were to become protectorates of France, in 1881 and 1912 respectively, Algeria was to be French for over a century.
During the first decades of colonial rule (1830-1871), the French authorities privileged Berbers over their Arab fellows (8). The main goal of the administration was to eradicate Islam from Algerian identity (23). According to French observers, the Berbers seemed keener to renounce their Muslim legacy, as they more closely resembled the French and shared their Christian roots.
To fuel this narrative, the French progressively constructed the “Kabyle Myth.” In 1826, the Abbé Raynal claimed that the Kabyles were of “Nordic descent, directly related to the Vandals, they are handsome with blues eyes and blond hair, their Islam is mild.” Tocqueville wrote in 1837 that the “Kabyle soul” was opened to the French (182). Ten years later, the politician Eugène Daumas claimed that the “Kabyle people, of German descent […] had accepted the Coran but had not embraced it [and that on many aspects] the Kabyles still lived accordingly to Christian principles” (423). This the reason why French colonial officer Henri Aucapitaine concluded that: “in one hundred years, the Kabyles will be French” (142).
The situation shifted in 1871 when two hundred and fifty Kabyle tribes, or a third of the Algerian population, revolted against the colonial authorities. The magnitude of the uprising was such that the French decided to “fight the Berber identity […] which in the [long-run] empowered the Arabs.”
From then on, the differences between the Berbers and the Arabs became irrelevant to France’s main priority: to maintain its control over the local populations by fighting Islam. The idea emerged that to be assimilated to the French Republic, Algerian subjects needed to be “purified” from their religious beliefs.
By the Senatus-Consulte of July 14th, 1865, the French had ruled that “Muslim Algerians were granted the right to apply for French citizenship […] once they had renounced their personal status as Muslims”(444). This law, which had established a direct link between religion on the one hand and political rights on the other, now further reflected the general sense of disregard towards the diversity of cultural groups in Algeria, all falling into the same overarching category of Muslim. After the 1880s, the French gave up on the Kabyle myth, marginalizing the Berbers who had become a source of agitation.
As the independent Republic of Algeria triumphed in the Fall of 1962, the newly funded regime identified the Berbers as posing an “existential threat to the Arabo-Muslim identity of the country” (103).
Repeating the French practice of destroying those regional identities allegedly challenging the legitimacy of an aggressively centralized and centralizing state, the leaders of Algeria denounced the political claims of the Berbers as a “separatist conspiracy,” and after 1965 the Arabization policy became systematic throughout the country.
To assess the respective impact of colonization, nineteenth and twentieth century nationalist pan-Arab ideologies and the role of post-independence Algerian leaders upon the persecution of the Kabyles after 1962 constitutes a somewhat limited debate.
It is, however, critical to acknowledge the responsibility of the French state in the marginalization of the Berbers after the 1871 Kabyle riot. Progressively, the colonial administration changed a model of mixed and complex identities strongly rooted the Maghreb tradition into a binary model (235). Within this two-term model, people could only define themselves on one side or the other of a rigid frontier separating authentic French culture from supposedly authentic colonized culture. As Franco Tunisian Historian Jocelyn Dakhlia argues in Remembering Africa, “the consequence of such a dualistic opposition of colonial identities was [… ] that the anticolonial movement stuck to this idea of an authentic native Muslim Arabic identity, excluding the Berbers” (235).
The very existence of the Berbers thwarts any attempt to analyze Algerian society in a way that resorts to a rigid griddle, whether in racial, cultural or religious terms.
This is probably the reason why the French, and after them the independent Algerian state, have utterly repressed the legacy of Berber culture in the country: for the Berbers could not exist in the dualistic narrative underlying both colonial and anti-colonial. As historian Michel-Rolph Trouillot, would argue, they became unthinkable, and were silenced and excluded from History.
Yet, the most curious factor in this non-history is the paucity of French scholarship on the issue. (50). While some academics do focus on creating conversations and producing literature on the question of Berber identity, the most renowned French scholars systematically fail at doing so. As a direct consequence, most French academic discourses reproduce and maintain the somewhat convenient imperial division opposing the “Arabs” in the North to the “Blacks” in the South of Africa, thereby forgetting that the Sahara is not a rigid racial frontier, and that for centuries the Berbers have been circulated throughout the region.
Ultimately, the Berbers blurry the lines between colonial and post-independent notions of identity in North Africa. To acknowledge the Berbers would require scholars to accept their fluidity – a direct threat to the Western appeal for systemic and pseudo-universalist thinking, still prevalent in French academia despite the emergence post-colonial studies in the 1960s.
Recognizing the Berbers necessitates first, as claimed by Algerian scholar Daho Djerbal, to ask: who is the subject of History? This is the only way in which one can hope to put an end to the overly simplistic politics of identity imposed by the political power—on both sides of the Mediterranean Sea, on both shores of the Atlantic Ocean.
Rosalie Calvet is a paralegal working in New York City, freelance journalist and Columbia class of 2017 graduate. As a history major, Rosalie specialized on the historiography of French imperial history. Her senior thesis, “Thwarting the Other: a Critical approach to the Historiography of French Algeria” was awarded the Charles A. Beard History Prize. In the future, Rosalie wishes to continue reflecting on otherness in the West—both through legal and academic lenses. More about Rosalie and her work is available on her website.
By guest contributor Pranav Kumar Jain
Since the publication of The Last Utopia: Human Rights in History, Professor Samuel Moyn has emerged as one of the most prominent voices in the field of human rights studies and modern intellectual history. I recently had a chance to interview him about his early career and his views on human rights and recent developments in the field of history.
Moyn was educated at Washington University in St. Louis, where he studied history and French literature. In St. Louis, he fell under the influence of Gerald Izenberg, who nurtured his interest in modern French intellectual history. After college, he proceeded to Berkeley to pursue his doctorate under the supervision of Martin Jay. However, unexcited at the prospect of becoming a professional historian, he left graduate school after taking his orals and enrolled at Harvard Law School. After a year in law school, he decided that he did want to finish his Ph.D. after all. He switched the subject of his dissertation to a topic that could be done on the basis of materials available in American libraries. Drawing upon an earlier seminar paper, he decided to write about the interwar moral philosophy of Emmanuel Levinas. After graduating from Berkeley and Harvard in 2000-01, he joined Columbia University as an assistant professor in history.
Though he had never written about human rights before, he had become interested in the subject in law school and during his work in the White House at the time of the Kosovo bombings. At Columbia, he decided to pursue his interest in human rights further and began to teach a course called “Historical Origins of Human Rights.” The conversations in this class were complemented by those with two newly arrived faculty members, Mark Mazower and Susan Pedersen, both of whom were then working on the international history of the twentieth century. In 2008, Moyn decided that it was finally time to write about human rights.
In The Last Utopia, Moyn’s aim was to contest the theories about the long-term origins of human rights. His key argument was that it was only in the 1970s that the concept of human rights crystallized as a global language of justice. In arguing thus, he sharply distinguished himself from the historian Lynn Hunt who had suggested that the concept of human rights stretched all the way back to the French Revolution. Before Hunt published her book on human rights, Moyn told me, his class had shared some of her emphasis. Both scholars, for example, were influenced by Thomas Laqueur’s account of the origins of humanitarianism, which focused on the upsurge of sympathy in the eighteenth century. Laqueur’s argument, however, had not even mentioned human rights. Hunt’s genius (or mistake?), Moyn believes, was to make that connection.
Moyn, however, is not the only historian to see the 1970s as a turning point. In his Age of Fracture (2012), intellectual historian Daniel Rodgers has made a similar argument about how the American postwar consensus came under increasing pressure and finally shattered in the 70s. But there are some important differences. As Moyn explained to me, Rodgers’s argument is more about the disappearance of alternatives, whereas his is more concerned with how human rights survived that difficult moment. Furthermore, Rodgers’s focus on the American case makes his argument unique because, in comparison with transatlantic cases, the American tradition does not have a socialist starting point. Both Moyn and Rodgers, however, have been criticized for failing to take neoliberalism into account. Moyn says that he has tried to address this in his forthcoming book Not Enough: Human Rights in an Unequal World.
Some have come to see Moyn’s book as mostly about President Jimmy Carter’s contributions to the human rights revolution. Moyn himself, however, thinks that the book is ultimately about the French Revolution and its abandonment in modern history for an individualistic ethics of rights, including the Levinasian ethics which he once studied. In Moyn’s view, human rights are a part of this “ethical turn.” While he was working on the book, Moyn’s own thinking underwent a significant revolution. He began to explore the place of decolonization in the story he was trying to tell. Decolonization was not something he had thought about very much before but, as arguably one of the biggest events of the twentieth century, it seemed indispensable to the human rights revolution. In the book, he ended up making the very controversial argument that human rights largely emerged as the response of westerners to decolonization. Since they had now lost the interventionist tool of empire, human rights became a new universalism that would allow them to think about, care about, and perhaps intervene in places they had once ruled directly.
Though widely acclaimed, Moyn’s thesis has been challenged on a number of fronts. For one thing, Moyn himself believes that the argument of the book is problematic because it globalizes a story that it mostly about French intellectuals in the 1970s. Then there are critics such as Stefan-Ludwig Hoffmann, a German historian at UC Berkeley, who have suggested, in Moyn’s words, that “Sam was right in dismissing all prior history. He just didn’t dismiss the 70s and 80s.” Moyn says that he finds Hoffmann’s arguments compelling and that, if we think of human rights primarily as a political program, the 90s do deserve the lion’s share of attention. After all, Moyn’s own interest in the politics of human rights emerged during the 90s.
Perhaps one of Moyn’s most controversial arguments is that the field of the history of human rights no longer has anything new to say. Most of the questions about the emergence of the human rights movements and the role of international institutions have already been answered. Given the major debate provoked by his own work, I am skeptical that this is indeed the case. Plus, there are a number of areas which need further research. For instance, we need to better understand the connections between signature events such as the adoption of the Universal Declaration of Human Rights, and the story that Moyn tells about the 1970s. But I think Moyn made a compelling point when he suggested to me that we cannot continue to constantly look for the origins of human rights. In doing so, we often run the risk of anachronism and misinterpretation. For instance, some scholars have tried to tie human rights back to early modern natural law. However, as Moyn put it, “what’s lost when you interpret early modern natural law as fundamentally a rights project is that it was actually a duties project.”
Moyn is ambivalent about recent developments in the study and practice of history in general. He thinks that the rise of global and transnational history is a welcome development because, ultimately, there is no reason for methodological nationalism to prevail. However, in his view, this has had a somewhat adverse effect on graduate training. When he went to grad school, he took courses that focused on national historiographical canons and many of the readings were in the original language. With the rise of global history, it is not clear that such courses can be taught anymore. For instance, no teacher could demand that all the students know the same languages. Consequently, Moyn says, “most of what historians were doing for most of modern history is being lost.” This is certainly an interesting point and it begs the question of how graduate programs can train their students to strike a balance between the wide perspectives of global history and the deep immersion of a more national approach.
Otherwise, however, in contrast with many of his fellow scholars, Moyn is surprisingly upbeat about the current state and future of the historical profession. He thinks that we are living in a golden age of historiography with many impressive historians producing outstanding works. There is certainly more scope for history to be more relevant to the public. But historians engaging with the public shouldn’t do so in crass ways, such as suggesting that there is a definitive relevance of history to public policy. History does not have to change radically. It can simply continue to build upon its existing strengths.
In the face of Lynn Hunt’s recent judgment that the ﬁeld of “history is in crisis and not just one of university budgets,” this is a somewhat puzzling conclusion. However, it is one that I happen to agree with. Those who suggest that historians should engage with policy makers certainly have a point. However, instead of emphasizing the uniqueness of history, their arguments devolve to what historians can do better than economists and political scientists. In the process, they often lose sight of the fact that, more than anything, historians are storytellers. History rightly belongs in the humanities rather than the social sciences. It is only in telling stories that inspire and excite the public’s imagination that historians can regain the respect that many think they have lost in the public eye.
Pranav Kumar Jain is a doctoral student in early modern history at Yale University.
by guest contributor Jon Piccini.
Human rights are now the dominant language of political claim making for activists of nearly any stripe. Groups who previously looked to the state as a progressive institution conferring rights and duties now seek solace in our (at least, until recently) post-national world in global protections and norms – a movement ‘from the politics of the state to the morality of the globe’, as Samuel Moyn puts it.
Yet, a long history of contestation and negotiation over human rights’ meaning belie the term’s now seemingly unchallengeable global salience. What constituted a ‘right’, who could claim them and what relation rights claiming had to the nation state are long and enduring questions. I want to explore these questions by focusing on the role that Amnesty International – a then struggling outfit employing a new, inventive form of human rights activism – played in campaigning against conscription in Australia during the 1960s. While a collective politics of mutual solidarity and democratic citizenship predominated in was dubbed the ‘draft resistance’ movement, Australian Amnesty members worked to have Conscientious Objectors recognised as ‘Prisoners of Conscience’ and adopted by groups around the world.
Founded in London in 1961, Amnesty struggled in its early years to stay afloat. By 1966, “The organization’s credibility was severely damaged by publicity surrounding its links to the British government and strife among the leadership”, as Jan Eckel puts it, and such problems were reflected in Australia. Amnesty’s arrival in Australia was ad hoc: from 1964 onwards groups began emerging in different states, mainly New South Wales (NSW) and Victoria, which meant that Australia stood out as the only country without a national Amnesty section, but rather multiple State-based groups each struggling with finances and small membership.
I will argue that relating to the draft resistance movement actually posed many problems for Amnesty members. While for some a clear-cut violation of the Universal Declaration of Human Rights (UDHR), Australia’s two key State sections – NSW and Victoria – came to widely divergent interpretations of what constituted a prisoner of conscience, and what duties citizens had to the State: debates which made their way to the organisation’s centre in Europe. These illustrate how human rights had far from settled meanings in the 1960s, even for their adherents, and point towards the importance of local actors in understanding intellectual history.
Australia (re)introduced conscription for overseas service in 1964, with the conservative Coalition government fearful of a threatening Asia. Troops, including conscripts, were committed to the growing conflict in Vietnam a year later. While initially popular, opposition to conscription began growing from 1966 when Sydney schoolteacher William ‘Bill’ White was jailed after his claim for conscientious objector status was rejected. White and other objectors were not “conscientiously” opposed to war in general, but held what the responsible minister labelled a “political” opposition to the Vietnam War, and as such did not meet strict legal guidelines.
Bringing those believed to be ‘prisoners of conscience’ to light initially united both the New South Wale and Victorian sections. The Victorian section released a statement in support of White’s actions: “we feel it impossible…to doubt the sincerity of his convictions and are gravely concerned at the prospect of his continued detention under the provisions of military law”. Given “the grounds for an appeal to the Government on White’s behalf based on the sanctity of the individual conscience are substantial”, the section recommended White’s case to AI’s London office “for appropriate action”.
The New South Wales section expressed near identical sentiments, reporting in August 1966 that “Conscription had been the overriding issue in much of our new work”, pointing to its transnational nature, with the section collecting material on Australian cases while campaigning for the release of conscientious objectors in the USA and East Germany: “the predicament of Bill White is shared by young men all over the world”. White’s public statement of conscientious objection, reproduced in the NSW section’s newsletter, spoke of rights as “unalterable” and inhering in a person rather than being a “concession given by a government”, and as such these were “not something which the government has the right to take”.
White’s release in December 1966 came before AI could adopt his cause internationally, but more objectors soon followed. What became problematic, however, was when the politics of conscientious objection moved to one of downright refusal – non-compliance with the laws of the land. Unlike White, part time postman John Zarb did not seek conscientious objector status but refused to register for military service altogether. His October 1968 jailing saw “Free Zarb” became a rallying cry for the anti-war movement: it was seen as representing the futility and double standards synonymous with the Vietnam War. As one activist leaflet put it: “In Australia – it is a crime not to kill”. AI NSW section member Robert V Horn described in a long memorandum to London, written in late 1968 and sent after internal discussion some six months later, how “Conscription and Vietnam have become inter-mixed in public debate, and in contemporary style outbursts of demonstrations, protest marches, draft card burnings [and] sit-ins”.
Zarb’s case was however nowhere near as clear cut for Amnesty members as White’s had been. Horn described that while “one might guess that many [AI] members are opposed to Australia’s participation in the Vietnam War” these individuals held “many shades of views”, particularly around the acceptability of law breaking. Horn circulated a draft report on the situation in Australia that he had prepared for AI’s London headquarters to other AI members within his section and in Victoria, reactions to which demonstrate just how divisive the issue of conscientious objectors and non-compliers was for an organisation deeply wedded to due legal process. David McKenna, in charge of the Victorian section’s conscientious objection work, put this distinction quite clearly – arguing that those who “register for national service and apply for exemption”, but whose “applications fail either through some apparent miscarriage of justice or because the law does not presently encompass their objections…are prima facie eligible for adoption” as prisoners of conscience.
However, those who “basically refuse to co-operate with the National Service Act” merely “maintain a right to disobey a law which they believe to be immoral”—and as such were not a concern for AI. McKenna here makes use of a similar typology as the Minister for National Service, casting refusal as a “purely political stand” as opposed to those who hold a “moral objection to conscription” and pursue this through the legal system. McKenna brought to his defence the UDHR, noting that in article 29/2 “freedom of conscience is not an absolute, nor is freedom to disobey in a democratic society”. Concerns were raised about “to what extent we uphold disobedience to the law by adopting such persons”, noting that AI had chosen not to adopt prisoners “who refuse obedience to laws [such as] in South Africa or Portugal”, referencing recent debates regarding the adoption of prisoners who had advocated violence. Taking on prisoners who refused to obey laws not only opened the road to similar “freedom to disobey” claims – “are we to adopt people wo refuse to have a T.B. X Ray on grounds of conscience” – but McKenna also feared that in taking “such a radical step…our high repute would be seriously damaged”.
Horn and others in the NSW section “decr[ied] such legalistic interpretation” – “the Non-Complier in gaol for conscientiously held and non-violently expressed views suffers no less than the [Conscientious Objector] who has tried in vain to act ‘according to the law”. While at first divisions on this issue were across and between sections, by late 1969 the Victorian section had solidly decided “that non-compliers should not be adopted”, and sent a memorandum to London to this effect in preparation for the 1970 AI Executive Meeting, to be held in Stockholm. The position of the NSW section was equally clear, expressed in a resolution adopted during ‘prisoner of conscience week’ in November 1969 requesting Amnesty and the UN General Assembly adopt “firm restrains upon legal and political repression of conscience”. “[T]he expression of honest opinions regarding matters of economics, politics, morality, religion or race is not a good and sufficient reason” to justify imprisonment of a person, the Section petitioned, and “no person should be penalised for refusing to obey a law…which infringes the principles here set forth”. The Stockholm gathering backed the NSW Sections views, with the Victorian Section wondering whether this geographical placement and the strength of the Swedish Section – “who have the same problem as Australia and have come to the opposite view” – swayed results.
This small case study provides insights into how the idea of human rights has been contested over time. Australia’s two Amnesty Sections – not amalgamated until the late 1970s – developed polar opposite views around the veracity of law breakers as beneficiaries of Amnesty’s human rights activism. This arguably came down to a fundamental opposition in how both groups conceptualised human rights – as global and inhering in the person, as such not requiring compliance with laws of the Nation State – or as the product and result of citizenship, which gave rights and imposed duties onto a subject. The AI Executive Council’s decision to stand on the side of the individual’s inalienable rights also provides a pre-history of how human rights moved from its 1960s meanings –, best exemplified by the 1968 Tehran Declaration’s deep wedding to the State – to a ‘rebirth’ in the 1970s as a global set of enforceable norms against states – a history that can be fruitfully explored at both the global and local levels.
Jon Piccini is a Postdoctoral Development Fellow at the University of Queensland, where he is working on a book provisionally titled Human Rights: An Australian History. His most recent book, Transnational Protest, Australia and the 1960s, appeared in 2016 with Palgrave.
 Samuel Moyn, The Last Utopia: Human Rights in History (Harvard, Mass: Harvard University Press, 2010), 43.
 Jan Eckel, “The International League for the Rights of Man, Amnesty International, and the Changing Fate of Human Rights Activism from the 1940s through the 1970s”, Humanity 4, No. 2 (Spring 2013), 183.
 Australia’s main two main conservative forces, the Liberal party and what was in the 1960s the Country party, but is now known as the National party, operate as a coalition in federal elections.
 Leslie Bury MP to Lincoln Oppenheimer, 31 March 1966, reproduced in Amnesty News 21 (May 1969), 3-4.
 “Statement from the Victorian Section of Amnesty International. Bill White Case”, Amnesty Bulletin 16 (November 1966).
 Lincoln Oppenheimer, “President’s Report”, Amnesty News 10 (August 1966), 3.
 “Copy of Statement by Mr W. White, Sydney Schoolteacher and Conscientious Objector”, Amnesty News 10 (August 1966), 2-3.
 “Australia’s Political Prisoner”, Undated leaflet, State Library of South Australia.
 Robert V Horn, Untitled Report on conscientious objection and noncompliance in Australia, Robert V Horn Papers, MLMSS 8123, Box 33, SLNSW.
 David McKenna to Robert V Horn, 2 March 1969, Robert V Horn Papers, MLMSS 8123, Box 33, SLNSW
 Horn, Untitled Report.
 David McKenna to Robert V Horn, 19 February 1970, Robert V Horn Papers, MLMSS 8123, Box 33, SLNSW
 “RESOLUTION – Prisoner of Conscience Week, November 1969”, Amnesty News 24 (February 1970), 15-16.
 “International Council”, Amnesty Bulletin 28 (October 1970), 4-5.
by guest contributor Boyd van Dijk
Like human rights, the popularity of the term of international humanitarian law (IHL) has skyrocketed since the late 1980s. Following the downfall of bipolarity, the term regularly appears on the covers of various print and digital media. Similarly, IHL has attracted the attention of countless reporters, diplomats, practitioners, scholars, and students. The Jean-Pictet competition, named after its mythicized founder, receives every year record numbers of student applications from across the globe. Similar to human rights, IHL usually guarantees law professors of full classrooms, illustrating the booming nature of this field of international law, despite of its countless violations during recent armed conflicts in Afghanistan and Syria.
Contrasting with this rising interest, it is remarkable how few historiographical insights there exist about the origins or genealogy of this branch of law. Unlike that of human rights, this field of academic study still suffers from the traditional weaknesses in legal-intellectual historiography – e.g. Whig history, triumphalism, and so on. Building upon Nietzsche’s critique of the search for Ursprung, Michel Foucault famously commented in the 1970s on the problem of describing the history of law in terms of a linear development. Genealogical approaches, he argued, are designed to achieve the very opposite, that is to identify the “accidents, the minute deviations, [and] the errors [that] gave birth to those things that continue to exist and have value for us” – IHL, for instance.
When I recently attended two conferences in Uppsala and Berlin about the origins of IHL, I was struck by the continuing relevance of his words. For many colleagues, IHL and its origins can be traced back to certain foundational ideas of either the ancient Stoics, the early modern period, or to the colonial civilizing mission in the late nineteenth century. In reality the origins of IHL are far more recent, dating back to the 1960s. Around this period, the term became more regularly used while the United Nations and ICRC began fusing human rights law with early humanitarian law, as part of their larger efforts to revise the legally amorphous Geneva Conventions of 1949.
The first serious and systematic attempt to define the concept of IHL occurred only in 1966, with the publication of Jean Pictet’s famous essay in the Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge. Pictet, one of the primary founders of the original drafts for the Geneva Conventions, had first coined a briefer version of this term (“droit humanitaire”) in the late 1940s. Then, it still mostly lacked systematic thought. In his new essay, however, he laid out a comprehensive theory of what “le droit international humanitaire” actually meant – or could mean. Essentially, he designed an expansive, colorful legal patchwork whose origins go back to a range of different intellectual modalities – from natural law, positivist human rights law, Hague Law, Calvinism to Genevan humanitarianism. By the 1970s, Pictet’s terminology of IHL, or DIH, became widely known. It was used by various practitioners to protect “victims of war”, the ICRC’s original vocabulary for the law’s main focus-group, against inhumane treatment.
The terminology of international humanitarian law raises another, far more important question: to what extent are the discourses of humanity, humanitarianism, genocide, human rights, and the Geneva Conventions actually related? Echoing an expansive notion of IHL, many scholars have argued in favor of drawing a connection between these fields of law and politics – or both, although this claim is historically contentious. For example, neither the Martens Clause, defining the laws of humanity, and the words of “crimes against humanity”, first catapulted into legal history as an Allied response to the Armenian Genocide, are mentioned in the original Geneva Conventions (see Kerstin von Lingen’s forthcoming Habilitation.) Nor do these treaties strictly forbid the use of scorched earth policies, or even starvation, as a means of warfare. In other words, while often called humanitarian conventions, they have a remarkably inhumane instinct as well as consequences.
Another example of the troubling relationship between the Conventions and other fields of international law is genocide. Like the famous international lawyer Hersch Lauterpacht whose own contributions to the Geneva Conventions are now largely forgotten (see Philippe Sands’ magisterial work and its neglect of them), Pictet found this term, originally coined by Raphael Lemkin, far “too political.” He also disliked its focus on collective as opposed to individual rights. For these and other reasons, the ICRC hardly referred to the term of genocide after its coining in the 1940s, even though the Conventions do make mention of “extermination” (see Article 32 of the Civilian Convention), its apparent moral equivalent. However, this terminology has technically – though not effectively – little to do with genocide: the former was originally suggested by the Soviets in order to ban atomic warfare altogether, a tactic that had turned the Geneva diplomatic conference in 1949 into a major Cold War-battleground.
Still, the most widely discussed topic remains the often contested relationship between the Conventions and human rights. Many Anglo-American scholars – though not only them – question whether there are really any connections between them. Their answer is often negative because they focus almost exclusively on the translated minutes, drafts, and/or ICRC commentaries. Pointing to the fact that none of the four Conventions make any direct reference to human rights, they argue that these two fields had remained fundamentally distinct in this period of the 1940s.
My research employs a more genealogical approach to challenge this assumption. This entails a sharpened focus on the ideas, inspirations, and contributions of influential European continental drafters, particularly those from the Francophone countries, in developing the laws of war before and after WWII. For these men – very few women were involved – there existed in the late 1940s a tight connection between human rights and early humanitarian law, a much closer relationship than might be easily assumed in retrospect.
In 1966, Pictet wrote in his essay that humanitarian law from its very beginnings had been about protecting “la personne humaine.” In his view, this field of law had reached a decisive stage in its development already in the late 1940s, with the signing of the Universal Declaration of Human Rights (1948), the Geneva Conventions (1949), and the European Convention on Human Rights (1950) – interestingly, he did not include in this list the Genocide Convention of 1948. Claude Pilloud, a fellow ICRC-official and a co-drafter of the original drafts of the Geneva Conventions, made a similar claim. In April 1949, right at the start of the diplomatic negotiations, he argued in an essay for the Revue, which was entitled: “La Déclaration Universelle des droits de l’homme et les conventions internationales protégeant les victimes de la guerre,” that there existed “des points communs évidents” between the UDHR and the drafts that he had helped to design for the upcoming diplomatic conference.
Strikingly, the French-Jewish co-drafter Georges Cahen-Salvador, also René Cassin’s colleague at the Conseil d’État, strongly echoed his view at the end of these negotiations. In an article for Le Figaro, he argued that the drafters of the Conventions had finally safeguarded human rights (“des droits et des libertés humaines”) in wartime, which further indicates the degree of closeness between these two fields of international law – why, how, and to what extent this connection was made by the drafters as a whole is more extensively discussed in my research.
Equally important, it is critical to identify not just those moments of overlap, but also the instances when human rights failed to connect with humanitarian law – the occasion upon which a mostly continental European aspiration remained unrealized, to paraphrase Foucault. Put differently, why are human rights not mentioned in the Geneva Conventions? One answer to this question is to refer to the drafting history of Common Article 3, a critical legal provision that the US Supreme Court used in 2006 (look here for its judgment) to end the torture of Al Qaeda detainees. Originally, the text for this article, co-drafted by Cahen himself, had made mention of human rights; they were made part of a list of individual protections against forms of inhumane treatment, such as hostage taking, summary executions, and torture. However, the drafters decided, under pressure from various delegations, to remove this reference to human rights from the final texts, eventually causing a bias in the literature which claims that human rights had nothing to do with early humanitarian law.
What is true, however, is that a direct legal contact between these two branches of law was only established in the period since the 1960s, following the attempts by particularly the UN Human Rights Division in seeking to remedy for the failures of Common Article 3 to regulate so-called “non-international armed conflicts,” such as colonial wars. This was partly a response to the previous years during which it had witnessed how colonial powers had denied the relevance of this article for their brutal counterinsurgency campaigns in Algeria, as well as in Kenya.
As a consequence of these failures of Common Article 3, the UN body and the General Assembly wished to use human rights as a means to fill the law’s gap with regard to insurgencies that were considered short of armed conflict. Such an approach has fundamentally changed the language, typology, nature, and practice of legality in war. Whereas it formerly applied only in peacetime, human rights law now did so in wartime as well (see Guglielmo Verdirame’s criticism of this point). Ironically, the unintended consequence of this effort to strengthen IHL led to its gradual weakening, if not overtaking, by human rights – or, as some prefer to call it, to the weaponization of human rights law.
Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He is currently working on a new international history of the Geneva Conventions of 1949. Previously, he published a book on the bystanders of an SS concentration camp in the Low Countries.
by guest contributor Rachel Q. Welsh
In medieval Castile, between about 1050 and 1300, local municipal lawcodes, or fueros, looked to the body for proof of rape. These fueros provided detailed and practical sets of laws and privileges to newly founded or conquered towns before the advent of centralized royal law, and they were intended to encourage settlement and establish civic order on the expanding Castilian frontier. Although the fueros set harsh penalties for rape, a valid claim hinged on the woman’s own actions of public self-mutilation. In order to prove rape, a woman had to appear publicly within three days of the assault and rend her cheeks, tearing at her face with her fingernails until it bled. If the woman did not appear carpiendo y rascando, “tearing and scratching,” she was not to be believed, according to texts like the Fuero de Alba de Tormes.
The physical action of cheek rending is not unique to these Iberian lawcodes, as it was also part of a larger Mediterranean practice of ritual mourning, in which mourners raised loud laments and tore their hair, faces, and clothing.
These self-mutilating actions were especially associated with women, however, and women’s mourning bodies were understood within a framework that linked bodily expressions of emotion with unrestrained sexuality and self-mutilation. For example, John Chrysostom suggested in a homily that women tore their bodies and clothing not to demonstrate grief, but to show their bodies and attract lovers. Because Iberian women tore their cheeks both as part of ritual mourning and as proof of rape, however, what little scholarship mentions cheek rending as proof usually explains it away in terms of grief and emotion: Distraught women tore their faces in grief at the shame and dishonor of rape. While this could explain why an individual woman might rend her cheeks, it does not explain why the legal system would require torn and bleeding cheeks as proof.
In thinking about cheek rending as proof of rape, I propose that we think of it first as a real, physical action, not just as a ritual or cultural performance. The municipal fueros themselves are very practical legal codes, without overt ideological goals; they deal with everyday life on the Castilian frontier, and they regulate such mundane things as which days Jews and Christians could use the bathhouses or how bakers should be fined for heating their public bread ovens badly. The stipulations on rape and cheek rending should be read within this straightforward framework. The verbs used in Latin and Romance to refer to cheek rending—including rascar, grafinar, mesar, carpir, desfacer, cortar—signify real physical violence; the mourners scratch, rip, tear, cut, and strip their faces. The thirteenth-century Primera Crónica General describes women mourners as tearing and scratching their faces (tornandolas en sangre et en carne biva), stripping them back to blood and to open wounds. Alfonso X’s great royal legal code, Las Siete Partidas, condemns excessive mourning and refers to cheek rending as disfiguring. Moreover, it forbids priests from administering the sacraments to mourners until they had healed from the marks they had made on their faces. This suggests that cheek rending left real visible marks on mourners’ faces, that their bodies were literally marked, and possibly even scarred, with grief. Images of mourners rending their cheeks bear this out, as many show bloody red lines on the mourners’ faces. A medieval medical text on treatments for women, included in the Trotula collection, even describes an ointment which the women of Salerno used to treat the marks on their faces which they made in mourning for the dead (contra maculas in facie quas faciunt salernitane pro mortuis). If women tore their cheeks both in mourning and in rape, would widows and raped women then have the same facial marks or scars?
Because cheek rending was a bodily action performed through real, bleeding bodies, I further suggest that any examination of cheek rending as proof of rape should consider larger questions of how bodies, and especially women’s bodies, functioned before the law. Scholarship on emotion and gestures suggests that weeping was seen as a sign of sincerity, and cheek rending as proof of rape suggests a similar connection between outward appearance and internal mental state. The definition of rape in the fueros hinges on intent, consent, and believability, and in many fueros the cheek rending requirement falls under the heading “What woman should be believed concerning rape[?]” (Qual mugier deue seer creyda por forçada). Cheek rending might actually go further than just proving intention and sincerity, however, as many of these same towns also used the ordeal of hot-iron and the physical bodies of women to prove guilt or innocence. This ordeal was used only with women and only with women accused of certain kinds of bodily, secretive crimes, including poisoning, abortion, prostitution, and witchcraft. For these crimes, the law bypassed the woman’s testimony to access the truth directly from her body.
But why only women’s bodies? If men were dishonored, they proved their civil cases through character witnesses and testimony, not through self-mutilation and bleeding cheeks. I am only beginning sustained research, but I suspect that there’s something about the body itself, an understanding that bodies – and especially female bodies, which were seen as more material and less spiritual than male bodies – could somehow demonstrate truth. In cheek rending as proof of rape, women mark and even mutilate their bodies to make visible the internal violence and dishonor of rape; in ordeal, perhaps, the body speaks for itself.
Rachel Welsh is a doctoral candidate in Medieval History at New York University. Her dissertation focuses on ordeal and the use of the body as legal proof in medieval Iberia, and she is interested more broadly in medieval medical, theological, philosophical, and legal understandings of the body as a potential conduit of truth.