Chapter 1 sets the historical and theoretical background of the book. It starts by describing the regulatory battles that took place from the 1970s to adopt more stringent tobacco control measures. Then, it illustrates how the negotiations of the WHO Framework Convention on Tobacco Control and the subsequent WTO and international investment disputes can be considered the internationalisation of the tobacco wars. In this context, the concept of ‘lawfare’ is introduced as a descriptive device and analytical tool for the analysis of the book. The second part of the introduction introduces the second fil rouge of the book: evidence. It begins by defining the notion of evidence and by showing how, in the context of tobacco control, it can refer to different bodies of evidence that pertain both to the risk assessment and risk management dimension of tobacco control measures. This second part, moreover, shows how evidence has always been one of the key points of contention in the tobacco wars and has continued to be so in the international tobacco control lawfare. The introduction concludes with an explanation of the methodology employed, a reflection on its limits, and an outline of the content of the book.

This chapter provides an overview of the global humanitarian system. This overview shows that the changing nature of world affairs has contributed to the ICRC moving in certain policy directions. Such factors as competition with many other humanitarian actors, plus the desires of donors and beneficiaries and partners, has helped push the ICRC into a broader range of activities. Such factors as the end of the Cold War, the rise of many protracted conflicts or forever wars, a more active United Nations, and other changes have indeed affected ICRC policy choices. The critics of the ICRC are thus placed in broad context. The spread ICRC activity is thus noted, while leaving a full evaluation of what is desirable and what should be reviewed to later chapters.

This second historical chapter provides some important episodes in ICRC history between about 1910 (the death of both Dunant and Moynier) and the end of the Cold War (which is when the rest of the book takes off). Thus the chapter introduces the ICRC through a selected review of its history, emphasizing: the development of international humanitarian law and the global Red Cross network, helping to apply that law and Red Cross Fundamental Principles through assistance and protection in the field, and related activities such as protection of political prisoners. All of this sets the stage for a close analysis of the ICRC since the end of the Cold War and particularly since about 2012. If one wants to know if the ICRC is now in demise, one needs a picture of what it was and did in the past.

Focusing on the relationship between the ICRC and the business world, the chapter notes that the ICRC was sustained in its first decades by Swiss corporate donations. There is also passing note that two of the early basic beliefs of ICRC leaders were the value of religion and private property. The ICRC governing board has always been well stocked with business leaders but not labor leaders. That board, aka the Assembly, has not been well constructed in recent decades, but there is little firm evidence that business leaders on the board have affected ICRC field operations or active diplomacy in significant ways. In recent years the organization has created a Corporate Support Group to recognize major business donors, who remain mostly Swiss, some of whom are controversial. Overall the financial contributions to the ICRC from the business sector constitute a small percentage of the total today, although the organization contracts with a number of for-profit entities to sustain its activities.

Chapter 6 has three interrelated aims. First, to identify the relationship between the modern nation-state, international humanitarian law (IHL), and notions of civility; second, through a historical exploration of the relationship between military necessity, proportionality, and discrimination in IHL, to make the argument that the claimed shift from sovereignty to humanitarianism is not as complete as often argued, and that rather, raison d’état continues to be a motivating factor informing constraint during combat; and third, through an exploration of ‘the standard of civilisation’, to identify how this relationship informs discord between the universal underpinnings of contemporary IHL, and ongoing violations of the law. The chapter concludes by proposing that the oft-maligned concept of a ‘standard of civilisation’ remains valuable in exploring continuities of double standards as they relate to protections afforded by the modern laws of war.

This chapter covers much ground by looking into the black box of ICRC decision making. The subject is rarely covered by outsiders, given the difficulty of obtaining reliable information. Facts and interpretations are presented about the role and influence of the Assembly (governing board), Assembly Council, presidents, directors-general, and Directorate. There is a comparative evaluation of the roles and legacies of the three most recent presidents as well as the often ignored subject of the different directors-general (who are the CEOs of the organization or are supposed to be – if the presidents do not pre-empt that role). On the one hand, bringing in outside presidents from Bern with differing styles and values does make a difference both internally and externally for the ICRC. On the other hand, a Swiss cultural tradition of collective consultation and accommodation is at work, as presidents rarely take decisions entirely on their own. It is extremely rare to have public spats or resignations at the top of the ICRC over policy disagreements.

The book closes with some early observations about the international armed conflict between Russia and Ukraine, from February 2022 until summer 2023 when this book was finalized. The Epilogue focuses on civilian Protection, prisoners of war, and ICRC communications policy. This approach allows one to begin to understand the complexities and difficult decisions facing the organization. The author’s necessarily tentative observations note, for example, the difficulties of getting ICRC activities properly underway, the sizable civilian assistance and protection provided, the grave difficulties involved in trying to get proper access to prisoners of war on both sides, and the debate surrounding the ICRC communications policy – which was much more open about civilian dangers and destruction than about the status of diplomacy for prisoners of war (not to mention interned and restricted Ukrainian civilians on the Russian side). As the book was going to press, the ICRC had major reputational problems in Kyiv despite its great effort to aid Ukrainian civilians severely affected by the fighting. And despite many bridge-building efforts in the past, it faced Russian policymakers whose priorities clearly did not include great attention to the rules of IHL, as had been true of Russian actions in the Syrian internal war and violent unrest in the Russian area of Chechnya – not to mention controversial Russian mercenary action in the Sahel. Despite over 150 years of persistent ICRC efforts, it was evident that in general the laws of war remained a fragile restraint on armed conflict and other major violence.

Chapter 2 analyses the negotiation of the WHO Framework Convention on Tobacco Control (FCTC, 1998–2003). It illustrates that evidence was a key element of the negotiations and argues that the FCTC was developed as an evidence-based treaty to counteract the attacks on evidence by the tobacco industry. After a historical introduction, Section 2.2 outlines the theoretical background of the chapter, introducing the notion of ‘treaty entrepreneurs’. Sections 2.3, 2.4, and 2.5 proceed to delineate and analyse how the strategy on evidence unfolded during the FCTC negotiations. Section 2.3 illustrates how legal expertise from international environmental law was borrowed to build a treaty that could embed and develop evidence. Section 2.4 describes how evidence was mobilised to build the treaty. First, the treaty entrepreneurs relied on existing knowledge within the WHO; second, they served as a catalyst for the production of additional evidence from other relevant actors, most notably the World Bank. Section 2.5 reviews how the treaty entrepreneurs framed the available evidence and how the label ‘evidence-based’ started being used. Section 2.6, finally, draws some conclusions on the implications of adopting a strategy on evidence to push forward the negotiations of a treaty.

The author explains his long connections with the ICRC and the Red Cross and Red Crescent Movement over about fifty years, and thus his ability to collect much information from different sources as an independent researcher.

The ICRC is presented as having three identities: a Swiss private organization, a member of the global Red Cross and Red Crescent Movement, and an entity recognized with rights and duties in public international law. Details of each identity and how identity affects policy are provided. Concrete examples are given of the interplay of the three identities. The crux of the chapter is an analysis of the uniqueness of the ICRC, an analysis that leads into a deeper study of the relationship between the ICRC and the RC Movement in the following chapter.

While the last chapter examines primarily the interplay between the ICRC and the RC Movement, this chapter examines ICRC links with the Swiss federal authorities in Bern. The chapter shows that historically relations have been very close, with early ICRC leaders failing to recognize that their humanitarian neutrality was different, or should be different, from Swiss political neutrality as directed by Bern. This failure accounts for a big reason, but not the only reason, why the ICRC compiled a defective record in responding to the Holocaust in the Nazi era. But the problem of too much Swiss nationalism, and lack of independence, in ICRC policymaking was evident before then, as in dealing with Mussolini.

According to a well-established rule of the law of armed conflict, warring parties are prohibited from employing weapons, means, and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. Agreement about the foundational nature of this rule can, however, easily conceal the disagreement as to its precise meaning and efficacy. This paper considers the origins of the rule in question, and how key aspects of the rule are interpreted. It then examines one of the more contentious issues about the rule, namely whether it is only concerned with the inherent properties of particular weapons or whether it also deals with the use of weapons generally.