Humanity on Unequal Terms: How Colonial Logic Shaped the 1949 Geneva Conventions
Over seventy years have passed since the world sat down together and wrote the rules that govern how wars are fought. The four Geneva Conventions of 1949 still sit at the very heart of what we call International Humanitarian Law. The ongoing effort to update their Commentaries tells us something important: these documents have not aged into irrelevance. Governments still rely on them. Tribunals still interpret them. Soldiers are still trained under their authority. That kind of staying power is rare in any legal tradition.
But staying power alone does not tell us everything about a document. It does not tell us whose experiences shaped it, whose suffering was acknowledged, and whose was quietly set aside. To understand what the Geneva Conventions truly are, one must trace where they came from, and ask, honestly, what they carried forward.
This post is part of a joint symposium on the updated Commentary on the Fourth Geneva Convention, shared with EJIL:Talk! and Just Security.
The historical development of the laws of armed conflict followed the same road as international law more broadly, one that reinforced the binary of civilized and uncivilized peoples and cemented a hierarchy between European powers and the territories they colonized. This showed up on two levels. In substance, the laws of armed conflict mirrored international law's refusal to grant equal legal status to non-European territories. In process, the very development of those laws responded almost exclusively to European needs, treating the concerns of colonized peoples as though they simply did not exist.
The Law of Occupation, Colonial Exclusion, and the Limits of Humanitarian Protection
The law of occupation took shape in the mid-nineteenth century within a distinctly European political and legal environment. Its logic was simple: military defeat did not mean a state lost its territory permanently. Before this, annexation through conquest was widely accepted. Over time, however, political currents pushed toward preserving territorial boundaries even after war. Territory could be occupied, but not simply absorbed. Any permanent change required further legal process. This shift reflected an agreement among European powers, made to protect the stability of sovereignty within their own world.
That agreement, though, was built to govern relations between European states alone. It cannot be read apart from what was happening at the same time in the territories those very powers controlled elsewhere. These principles arose within a European framework, but were written in universal language, as if they applied everywhere equally.
The gap showed most clearly in how European states treated each other versus how they treated their colonies. While occupation law governed conflicts between European powers, colonial territories were left largely outside its scope. When the Hague Peace Conferences formalized the law, these patterns of inclusion and exclusion hardened into text. The Regulations attached to the 1907 Hague Convention IV did not explicitly exclude colonial territories, the language was neutral on its face. But that neutrality hid a deeper logic. The exclusion of colonies from occupation law was not merely a matter of rules not being applied. It grew from a specific understanding of what sovereignty meant, and who could hold it.
Humanitarianism, and the laws of armed conflict alongside it, developed inside a framework where sovereignty sat at the center. Since occupation law existed to protect sovereignty, the question of who possessed it decided who received protection.
Sovereignty, in that era, belonged exclusively to the civilized European world. Colonial territories were not considered capable of holding it. This was, as Antony Anghie put it in his foundational scholarship, the unceasing effort to manufacture a gap between two worlds, one universal and civilized, the other particular and uncivilized, with international law managing and normalizing that divide. Anghie noted that colonial confrontation, especially from the nineteenth century onward, was never a meeting of two sovereign states. It was a meeting between a sovereign European power and a society legal thinkers deemed without sovereignty, or only partly so. The timing matters: occupation law was crystallizing during that very century.
Because sovereignty grounded occupation law, denying it in the colonies felt natural, not political. There was no sovereignty there, so there was nothing to protect. Neither the Brussels Declaration nor Hague Convention IV needed to exclude colonies outright, the prevailing logic already made it obvious. The humanitarian ideals inside the laws of armed conflict were, in this way, thoroughly bound to a European colonial reading of international law. Nothing seriously challenged this until the four Geneva Conventions.
It is well understood that the Second World War left deep marks on their drafting. Much of the Fourth Convention addresses occupation directly, answering the legal failures the war exposed. In that sense, it genuinely advanced protections for people under military occupation, moving past the Hague Regulations, which had focused mainly on property rather than people.
Yet the Fourth Convention did not define occupation on its own terms. It borrowed the Hague definition instead. Two things follow. First, despite being a new instrument, it did not really change the scope of occupation law. Second, while European wartime experience rightly shaped much of the drafting, colonized peoples received no comparable attention. African, Asian, and Latin American states made up nearly half the delegations at the 1949 Diplomatic Conference, yet the colonial wars their people lived through left barely a trace on the final text. This reflects the lasting bias of international law toward European and North American experience, a bias Third World scholars have spent decades working to challenge.
Common Article 3 Was Not So Radical for the Third World
The inclusion of Common Article 3 is routinely described as a radical development in international law, and in humanitarian law especially. For the first time, a state's internal affairs became subject to international regulation, well before human rights treaty law took shape. That, measured against what came before, is a real breakthrough.
But seen from the position of colonized peoples, the picture gets complicated.
The groundwork was laid through pre-1949 discussions about extending the laws of war to civil wars. The preliminary conference of National Red Cross Societies, held in 1946, proposed applying the 1929 Geneva Convention on the wounded and sick to internal civil wars, and recommended extending the 1929 POW Convention the same way. The 1947 Conference of Government Experts went further, proposing that in any civil war, at home or in colonial territory, the Convention's principles should apply equally. That phrase, colonial territory, mattered.
Building on this, the draft submitted to the 1948 Stockholm Conference included a provision extending protections to all non-international armed conflicts, naming civil wars, colonial conflicts, and wars of religion outright. Anti-colonial struggle was treated as a real armed conflict, and brought inside the Convention's reach.
Then something changed. The text Stockholm approved dropped colonial conflicts entirely. Western states objected. As Geoffrey Best documented, some found the explicit mention deeply uncomfortable. The Common Article 3 finally adopted names no colonial conflict at all.
Still, some newly independent states, India among them, read the article as covering anti-colonial fighting under the wider heading of non-international conflict. This fits a pattern already visible in occupation law, where the Fourth Convention refused to treat colonial occupation as belligerent occupation at all. Folding colonial conflicts into the "non-international" category, rather than naming them, carried a message: sovereignty belonged to the colonizer, not the colonized.
Common Article 3 is praised for piercing the veil of sovereignty, for insisting international law has something to say about internal conflict. That is real. But the same provision left certain peoples standing outside sovereignty's protection altogether.
The Western states resisting any mention of colonial conflict went further still, treating such conflicts as ordinary crime, a matter for domestic police and courts, not the law of war. India and others pushed back, insisting the article must cover anti-colonial struggle, if only to keep liberation movements from being branded criminals under someone else's law.
This is why Additional Protocol I, adopted in 1977, matters so much. It named national liberation movements as parties to international armed conflict. Its practical reach stayed limited, but the gesture carried real weight, symbolic and legal both. Newly independent states were not merely reading the treaty. They were rewriting it, forcing a reckoning with how the laws of war had helped sustain colonial rule.
The old language of civilized and uncivilized is gone from legal vocabulary now, decolonization saw to that. But the structures that language built did not vanish with the words. They persist, under new names. The purpose of updating the Commentaries is to gather seventy-five years of practice, judgment, and debate into one coherent framework, and that task only gains from an honest look at where these Conventions came from. Understanding how 1949 was shaped by the world that produced it lets us see more clearly the realities these Conventions operate in today. It guards against a well-documented failure repeating itself, the subordination of humanitarian protection to global hierarchy, a failure that has recurred at multiple points across this law's history.
For people living inside armed conflicts today, this history is not academic. It is urgent, and that urgency is reason enough to face it without flinching.
