This year marks the 70th anniversary of the four Geneva Conventions of 1949. The importance that has been attached to the four Geneva Conventions (GCs) in the last seven decades is discernible from their universal acceptance. Since their adoption hardly there has been an armed conflict situation where the discussions have not involved the issues related to the Geneva Conventions. Development of the law of armed conflicts did not stop with the adoption of the GCs as later on Additional Protocols of 1977 (AP I and AP II), and 2005 (AP III) were adopted. Despite the fairly comprehensive nature of the GCs, the Additional Protocols were found to be necessary. One of the important reasons for the adoption of the APs, particularly AP I and AP II, was the coming into existence of the newly independent third world States and the need for accommodating their concerns. It is true that newly independent third world States were more in number in 1977 and made a significant difference to the APs, like the recognition of national liberation movements as international armed conflicts in AP I. It is also true that there were not many States from the third world at the time of negotiations on GCs. However, a plain assertion of these facts ignores a critical and historically contingent role of the third world States who participated in the negotiations on GCs in 1949.
Historical accounts of the GCs often state that the GCs were largely negotiated by the European States as less number of States participated from the third world (Giovanni Mantilla, The Origins and Evolution of the 1949 Geneva Conventions and the 1977 Additional Protocols, p. 39). This situation is often compared with the AP I and AP II negotiations in the 1970s where there was more number of newly independent third world States, and therefore their influence was manifest on the outcome of the diplomatic conference. This narrative presents the absence of the third world States as an important reason for the prominent role gained by the European States in 1949. This narrative further demonstrates that the presence of more number of third world States in 1977 made a significant impact on AP I and AP II, like in the form of inclusion of national liberation movements and the modification of combatant status. This plain equivalence, while attempting to present the apparent facts, tends to ignore the unsuccessful attempts of the third world States in bringing to the fore their concerns during the negotiation process in 1949. Problematized from a third world perspective, this equivalence also has the potential to present the ideological divide between the third world and the first world as a question of mere presence and absence and formal participation.
Hence, while assuming that the number of States that participated from the third world was less, however, their participation and interventions during the negotiations convey emerging solidarity among the third world States(though African, Asian and Latin American States constituted almost half of the 59 participating States at the diplomatic conference). Their interventions provided a critique of the developed or the first world on several issues and underlined the similarities between the third world States. This pointed towards emerging third world solidarity which was carried forward to the later years and decades at the multilateral fora. This emerging dualism of first world critique and third world solidarity in the international law making process was evidently witnessed on some of the crucial issues of the Geneva Conventions. Two issues are analyzed here to substantiate the above arguments: These are common article 3 and the red cross emblem.
Common concerns of some third world States on common article 3
Common article 3 is an innovative inclusion in the four Geneva Conventions. The text of this provision was an outcome of the negotiations involving differing views even prior to the diplomatic conference in 1949. There was a divided opinion on the application of the conventions to the internal conflicts. These views varied from extending the principles of the conventions as a whole to non-application. These diverse sensitivities led to the adoption of the narrowed version in the present form. It is worth noting that some of the newly independent third world States opposed the application of the GCs to internal conflicts.
The delegate from Burma, claiming to represent the Eastern countries, made a lengthy statement against the proposed provision. He stated:
Some of you, especially the delegations of Colonial Powers, have really been remarkably broadminded to support the Article, though it is going to encourage Colonial wars. We, the smaller nations, naturally feel much enthusiasm for Colonial wars, we like to help, we like to help them, but if you will refer to the number of conquered countries which have been given their independance, there is every hope-I go further and say it is certain-that in this highly enlightened age the remaining conquered countries of the world will also receive their independence without the loss of a single drop of blood. So the only help that the Article will give, if you adopt it, will be to those who desire loot, pillage, political power by undemocratic means, or those foreign ideologies seeking their own advancement by inciting the population of another country. (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section B, p. 329.)
These remarks would be seen as out of sync with the humanitarian values in armed conflicts. However, they reflect several concerns and anxieties. They underline the optimism in the peaceful transition from colonialism to independence, caution against internal dissidence, and more importantly suspicion of the dominant States and their potential for interventions in the domestic affairs of the newly emerging States. This suspicion of dominant States could be contextualized as premised on the evolving critical stance of the third world States who were emerging out of the long colonial experience in the hands of the colonial powers. This is further substantiated from the statement by the delegate from Burma on the same provision when he questioned “Do you think that it is justified or fair to do so when the Great Powers at this Conference have been so reluctant in the complete acceptance of provisions likely to effect the security of their States, even in matters within the bounds of the Conference, i.e. international wars?” (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section B, p. 330). This statement attempts to allege the first world or powerful States that they were unfair to newly emerging independent States while protecting their own interests. These views clearly underscore the ideological divide that was evident during the 1949 negotiations. Thus, when the historical narrative focuses on the prominent role of the European States in the making of the GCs, it only tends to highlight the outcome without much emphasis on processes that reflect contending views. This historical account also only focuses on those views which prevailed over the other at the conference. This is equally evident in the case of negotiations on the red cross emblem.
Red Cross emblem
While the red cross is identified with universal humanitarian values, its history has been contentious since its inception. The red cross was included formally in the 1864 first Geneva Convention. Its resemblance to symbols of Christianity has been the subject of counter proposals as humanitarian symbols. These alternative views led to the recognition of red crescent and red lion and sun as distinctive emblems in 1929. In this backdrop when the 1949 diplomatic conference took place, discussion on the red cross received varying suggestions. There were suggestions to adopt a neutral emblem. The Indian delegation was at the forefront in this regard and made a formal proposal for a neutral emblem. The Indian delegate was of the view that a “new sign, devoid of all religious significance, could alone serve as a universal protective emblem, acceptable to everybody.” (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section A, p. 150.). He further stated that the:
“Red Cross was certainly entitled to the greatest respect; but a new symbol would have to be found to serve as a universally accepted protective sign. Whatever might be said to the contrary, the cross would always evoke the idea of the Christian faith.” (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section A, p. 150).
The delegate of Burma, while supporting India’s resolution, said:
“that the Indian proposal was not intended to conflict with any religious beliefs. Oriental countries were taking an increasingly active part in international life; they wanted an emblem which did not offend either their own religious convictions or those of other nations.” (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section A, pp. 150-151).
Iran also supported India’s proposal. The formal resolution proposed by India in this regard was defeated in the voting in the Committee I of the 1949 diplomatic conference.
The same resolution that was introduced by India in the Committee I was submitted by the delegate of Burma in the plenary session for re-examination. The draft Resolution was rejected by 16 votes to 9 with 20 abstentions in the plenary session. (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section B, p. 232). The president of the International Committee of the Red Cross (ICRC) gave an elaborate explanation for retaining the red cross and against India’s proposal. His speech was interspersed with the views of Muhamed-Ali-Jinnah of Pakistan and Mahatma Gandhi of India on the importance of the red cross. Reference to these prominent third world figures must have been apparently to convince the Islamic countries and India that were opposing the red cross or arguing for a uniform emblem.
The formal proposal made by India on the neutral emblem is an important historical precedent in understanding the development of law in the form of Additional Protocol III in 2005 on the additional distinctive emblem. ICRC and other States like Switzerland, who opposed India’s proposal in 1949, initiated the process for the adoption of AP III. The preamble of AP III mentions explicitly that “the distinctive emblems are not intended to have any religious, ethnic, racial, regional or political significance”. This is similar to what India proposed in its draft resolution in 1949. (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section A, p. 151).
These positions by some of the third world States in 1949, underline their concerns during the negotiations on some of the important issues. The negotiations on the four Geneva Conventions were among the first multilateral exercises that were undertaken in the backdrop of the United Nations establishment and the beginning of the decolonization process. Therefore, the positions taken by these third world States need adequate recognition and careful analysis as they arguably foreshadowed later ideological assertions in international law making. This due recognition is missing from the historical narratives. An example of this is that a historical work written by François Bugnion which claims to cover the developments on the emblem up to 15 January 2007 does not have any mention of India’s formal proposal in 1949. His earlier work also does not refer to this aspect. On the other hand, Netherlands’ proposal in 1949, which was similar to India’s but was only an informal proposal and was withdrawn, receives prominent mention in these works (Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II, Section A, p. 92). Probably these histories need to be told in different ways.