The Humanitarian Lawyers

The laws of war, in most accounts, rest on two central premises: (1) they are “humanitarian,” designed to protect individuals, and (2) they have been so since at least the aftermath of World War II. This Article undercuts that narrative. Contrary to mainstream legal scholarship, this Article argues that the laws of war became “humanitarian” only in the 1990s. Central to this transformation were the ideas of a group of international lawyers and jurists—the “humanitarian lawyers.” Their revolutionary ideas reflected the influence of human rights, or the project of transcending the state and universalizing individual protections, on the laws of war—a doctrinal shift particularly evident in the law of noninternational armed conflicts. In their preoccupation with atrocity prevention, the humanitarian lawyers in the 1990s prioritized decontextualized individual criminal accountability rather than inquiries into systemic conditions that produce mass violence. In the process, alternate human-rights ideas from previous decades, which sought to emphasize ambitious goals like peace and disarmament in the legal regulation of war, lost out. In refuting the conventional progress narrative, this Article demonstrates the potential to revive these promising ideals.