General principles of law of civilized nations

The idea that there are some very general principles more or less spontaneously adopted by all civilized, or ‘developed’, nations is a legal doctrine used to defend the legitimacy of supranational courts like the European Court of Human Rights or the International Court of Justice. The problem is that all laws, perhaps especially broad statements like conventions on human rights, require interpretation when applied to concrete circumstances. A national court can rely on a cultural agreement about basic values, or perhaps refer to the intention of constitutional founding fathers, and may be in less need of interpretative techniques because a national parliament can be expected to keep the status of its laws under observation, and fill in gaps which social development shows up. An international body, however, cannot as easily refer to such material in justifying answers it may give to vague declarations, or in closing legal loopholes. Thus a reference to something seen as a cultural constant, something any country would more or less automatically agree to by virtue of being an advanced society, can give legitimacy to what might otherwise be thought of as naked judicial power. It is, of course, essentially a legal fiction, not an invitation to counsel to engage in a sociological enquiry as to what principles are, empirically, to be found in all civilized nations. When applied with anything like an empirical basis, as sometimes by the European Court of Human Rights with reference to Europe-wide principles, there is a marked tendency to take a ‘lowest common denominator’ approach, and not to hold a government to the highest standards of human rights to be found in Europe. However, there may be a trend towards making such references more valuable, coming in part from the experiences of transition democracies who want a bench-mark other than their own legal past. Certainly the rhetoric of international standards has featured frequently in opinions of courts such as that of the Czech Republic, and it can be argued that South Africa’s Constitution (1996) enshrines such standards as obligatory for its Constitutional Court.

Geneva conventions

So many vital agreements in international law have been negotiated and signed in Geneva that it is easy to be confused by the title ‘Geneva conventions’. There were four Geneva conventions signed in 1958 alone, for example, in this case dealing with matters of international maritime law. When the term Geneva conventions is used with no qualifier it usually refers to the various international conventions on warfare. The earliest of these was an agreement signed in 1864, as a result of negotiations instigated by the newly-formed International Committee of the Red Cross (known as the International Committee for Relief of Wounded until 1880), called the First International Convention for the Amelioration of the Condition of Soldiers Wounded in Armies in the Field. It was extended and modified in a convention more widely ratified in 1906 (the Second Geneva Convention), and was brought to include maritime warfare by a separate convention signed at The Hague in 1907 (the Hague Rules). Finally a Convention Relating to the Treatment of Prisoners of War (the Third Geneva Convention), perhaps the one most usually referred to, was added in 1929. These conventions were so widely flouted by all sides in both world wars that a new start was made in 1949, when these original conventions were further extended and defined and became very widely ratified. These four new conventions cover: wounded and sick in armed forces in the field; a similar convention for armed forces at sea; treatment of prisoners of war; and protection of civilians in time of war. Much of the conventions follow time honoured (or dishonoured) principles of warfare following from the classic ‘just war’ theories. As such the basic thrust is that killing or wounding are not the aim of war, and must be minimized, and that the only legitimate target of force is an armed soldier offering resistance. There is an ongoing effort to control the nature of warfare, and an increasing tendency to incorporate general human-rights theory into the discussions. In 1974 the UN set up a Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts.