The Forgotten Histories of the Codification of International Humanitarian Law in Nineteenth-Century Latin America

[Tania Atilano holds a Juris Doctor from the Humboldt University of Berlin. She is conducting research on the laws of war in nineteenth-century Mexico and on counter-guerrilla warfare in the state of Guerrero (Mexico) during the ’70s.]

Since I published the article about the criminalization of the Laws of War in the 1871 Mexican Criminal Code (MCC), I have received various comments of my fellow colleagues as to why has Latin America been practically erased from the nineteenth-century history of the Laws of War. It is of course, difficult to conclude if out casting Latin-American experiences from the history of the laws of war was a conscious decision or these experiences were simply ignored. I do however, have one hypothesis that I would like to share with you. On the one hand, I will reflect on the overall omission of the Latin-American region in the history of the codification of the Laws of War; on the other I will reflect briefly on one particular effect of such omission.

It is very intriguing as to why, while Europe was striving for ways to regulate the conduction of warfare, the main actors of this project (Moyner, Dunant, Bluntschli) didn’t even consider the developments that were happening in Latin America. Especially since it is assumed that the “… codification of IHL was a consensus reached by the international community 150 years ago”. So here the “international” within the origins of the codification of IHL seem to have been limited only to Europe and the US.

Latin-America vs the Standard Linear Account

According to the standard account of the history of International Humanitarian Law, it was thanks to Henry Dunant and the suffering he saw in Solferino that the regulation and “humanization” of warfare began as part of or as a result of progress and civilization. The 1864 Geneva Conventions developed in an evolving “humanizing” set of norms until the epitome of “humanization” of warfare which was and is the 1949 Geneva Conventions. This constitutes a typical linear account of progress, as Lustig and Benvenisti have already pointed out. However,  the case of the Mexican Criminal Code of 1871 and the case of Colombia show, that efforts to regulate warfare preceded the standard linear account and happened in a geographical space which is not western.  Additionally, the objectives of regulating warfare were not to justify war (and impose western values). What e.g., the Mexican legislators wanted to accomplish was to liberate themselves in some way from the abuses of foreign occupiers and to use law as a “weapon” to defend independence and sovereignty. In this sense, the incorporation of the laws of war in the newly Latin-American nations diverged from the “humane” characterization described by Samuel Moyn in his most recent book. The reasons behind regulating warfare were not mainly to alleviate human suffering and pain and make war more “decent”, but rather as a counter-hegemonic tool. In the discourses of former Mexican president Benito Juárez (1806-1872) who was a lawyer himself of Zapotec descent, he complained about how: “…International Law was only applicable to the most powerful nations” (Juárez, 1862). He also understood how crucial it was to respect the “laws of war”, as a breach was an “excuse” used by Spain, England or France to claim the payment of reparations. Throughout the French Intervention, president Juárez invoked quite frequently in his discourses the laws of war and the law of nations. So, it is hard to imagine that even though international law and the laws of war were present as a normative and discursive tool, all of that went unnoticed, but apparently it did.

One can think that the Latin-American experiences of adopting and applying the laws of war were erased from the standard account due to being categorized by the USA and Europe as “lesser civilized”.

However, if we follow closely the arguments of Bevenisti-Lustig and Karma Nabulsi (1999) there might have been an even more powerful reason: popular sovereignty. According to historian Hilda Sabato, the adoption by the new Republics of popular sovereignty was a radical change in the foundation of power. Popular sovereignty may seem obvious nowadays, but it wasn’t back then and certainly not, while in continental Europe, monarchy was being re-stored (1815-1848). Popular sovereignty entailed other characteristics that were not precisely what the European status quo longed for. That is, by giving power to the people, it meant they would also have had the right to defend the constitutional order, to defend themselves against tyranny and to defend themselves from the invader. Accordingly, to the right of civilians to defend themselves, a set of norms were incorporated that encompassed both international and domestic law, as a result, the MCC conceded rebels combatant immunity. The fact that rebels were not seen as ordinary criminals by domestic law contradicted directly the European project of regulating warfare. As Benvenisti and Lustig (2020) have shown, the objective of regulating warfare was to keep as much as possible, civilians away from armed confrontation as anarchist and other social movements were on the rise. That said, it is plausible that the legal avenues construed by the Latin-American Republics, were discarded from the very beginning as it defied core convictions like keeping civilians out of war in order to preserve the “status quo” of European monarchies. Finally, the Republics of the new world incarnated opposite projects of regulating violence specially regarding rebellion and resistance to occupation and destabilized the project of codifying the laws of war in Europe. An additional layer that adds to this hypothesis is that, in Latin America, international law was seen as the most adequate tool for nation building, especially since “…the new Republics constituted the unity of state-nation – in comparison to the Habsburg or Ottoman Empires which encompassed a multitude of peoples” (Benito Juárez, 1867), and therefore a certain “nationalistic” factor could be added that the European project of regulating warfare probably wanted to avoid. 

Revolutions Only Happened in Europe and the US and so Did the Development of IHL

In the standard account of the history of IHL, a resemblance can be identified to the classical studies of revolution. Traditional accounts of revolutions deal mostly with the US and European Revolutions. In her study on revolutions, Hannah Arendt deals exclusively with the US, French, and Russian Revolutions completely ignoring Latin America. Even when she explains that all revolutions follow the model of the French revolution as if it were a determined process, she fails to note that the Mexican Revolution (1910) which actually happened before the Russian Revolution (1917) doesn’t at all follow the “organic process” of the French Revolution (an exception of course is the establishment of a “one party rule”). It seems as if, revolutions had to have certain characteristics that could only be fulfilled in certain “civilized” regions. Notwithstanding that these “other” revolutions provided, at an early-stage, rights that so far, the European failed to give, like abolition of slavery (Haiti-1793), equality before the law, universal men suffrage and freedom of expression. Above all, it gave the hope of emancipation to people who were still colonized or suffered some kind of oppression. Historian Sanders points out, that after the empire of Maximilian of Habsburg was defeated, anti-colonial struggles in Poland and Ireland found inspiration and expressed solidarity to the Mexican Republic.

So, even though Latin American Revolutions sparked synergies in Europe they were not considered by Arendt.

Likewise, the same happened with the study of the history of IHL. Maybe since, the “founding fathers” of humanity in warfare didn’t consider from the very beginning the developments that were happening in Latin America, historians of the field reproduced also this bias. By doing so, unintentionally, scholars have  reproduced the misconception that the conduction of warfare according to the laws of war would only happen in “civilized” states. Being then, the history of IHL an account of the “victor’s history” or the history of powerful states and their engagement with the laws of war. In other words, by not allowing other histories to exist, we would be dealing here as Boaventura do Santos puts it, with pure “global -north epistemologies”. However, getting to know other histories, can lead us to discover or re discover alternatives for regulating warfare.

Effects

A non-accurate history of how legal institutions develop elsewhere, has pervasive and long-lasting effects. As students of law (and this is maybe applicable to all law students of the global south), we learn that as heirs of the European tradition we are “recipients” of the law. As such, we then internalize that we are not capable of creative legal thinking according to our own social, political, judicial or juridical realities since we always copy from the “masters” of Europe. Since we are taught that we cannot produce our own juridical knowledge and our own legal institutions, we keep on copying and borrowing from the “developed” States. An example is the criminal procedural reform in Latin America that started in the mid 90’s and was also promoted by the agency US Aid.  Adopting the American accusatorial system would solve all the injustices regarding prosecution and judgement of crimes. This procedural reform brings however great inconsistencies within the criminal justice system as substantive criminal law is based on a civil law model. As a result, we have then disparate terminologies between the Criminal Code and the Procedural Criminal Code. As far as Mexico is concerned, the very much praised reform hasn’t brought the results its promoters hoped for.

As a concluding note, further research on how the new Republics of Latin America applied and incorporated the laws of war during the nineteenth-century should be pursued.  The new findings could spike interesting counterfactual hypotheses on how the development of IHL would have been affected if the innovations and approaches on regulating warfare in Latin America should have been considered.

Finally, a wider consciousness and perception of the legal imagination and creation in the region, should inspire new generations in Latin-America to produce legal innovation and reproduce less.