26 Apr Symposium on Boyd van Dijk’s Preparing for War: The Geneva Conventions and the Future of International Humanitarian Law
So far, the 2020s have been a great decade for books on the history of international humanitarian law. 2020 saw the publication of Giovani Mantilla’s exceptional Lawmaking Under Pressure, on the history of Common Article 3; 2021 gave us Samuel Moyn’s Humane, a powerful critique on the idea that war can be humanised; and now 2022 starts off with Boyd van Dijk’s Preparing for War. I am extremely happy that we are showcasing his book in this symposium, as I am convinced it is an immediate must-read for anyone working on the history of this discipline.
On first glance, van Dijk’s premise is a simple one: a history of the 1949 Geneva Conventions. As he readily admits, this isn’t a new topic nor is he the first to attempt it (p. 14). Preparing for War’s originality and ground-breaking nature, instead, lie in its focus: “This is not” – he warns us – “a story of triumph” (p. 19). Neither is it a “search for a mythologize (male) founder” (p. 14). It is, instead, an effort to place the Conventions in their own history, based on an impressive amount of archival research, in order to reveal international humanitarian law’s imperial and 20th century origin (pp. 17-22).
To the casual observer, it may sound strange to have to emphasize the 20th-century origins of a discipline sustained by conventions and protocols adopted in 1949 and 1977. But, as van Dijk mentions, “the laws of war have a longer history, which goes back as far as the ancient world” (p. 22). This long genealogy, coupled with the triumphalist tone that tends to characterise post-World-War-II narratives, has led international lawyers to create a celebratory history of international humanitarian law where the Geneva Conventions, particularly the Fourth Geneva Convention on protection of civilians, are perceived as the end-goal of a centuries-old process of trying to make war more humane.
Thus, the 1949 Geneva Conventions are framed as the “third update” of the (original) 1864 Geneva Convention, with the Fourth Convention simply filling an “important gap” in an overall process of “continuous update and adaptation” (pp. 3-5). Likewise, the famous Lieber Code, that regulated the Union’s conduct of hostilities during the US Civil War, is conceived as “the final product of the eighteenth-century movement to humanize war through the application of reason” (p. 213). In these genealogies, the harshness and brutality of war activated the humanitarian sensibilities of (Western, white, and male) lawyers and diplomats who fixed international law’s deficiencies as they learned new lessons with each new war. As Theodor Meron famously put it:
“Calamitous events and atrocities have repeatedly driven the development of international humanitarian law. The more offensive or painful the suffering, the greater the pressure for accommodating humanitarian restraints. The American Civil War generated the Lieber Code (…). The Battle of Solferino (…) inspired the creation of the Red Cross movement and Geneva law (…). Nazi atrocities led to the Nuremberg Charter, the 1949 Geneva Conventions and the Genocide Convention”.
This, of course, flies in the face of the experiences of racialised and colonised communities, who suffered indescribably inhumane calamities without the lawyers and diplomats of their time learning any lesson whatsoever for the supposed improvement and humanisation of (colonial) war. In fact, inhumanity was precisely the point. As Wagner notes, colonial war was shaped by racist hierarchies that enabled the construction of the racialised enemy as an “un-civilized, savage or fanatic” one that was not worthy of “civilised” engagement, in accordance with the laws of war. In these so-called “savage wars”, no amount of calamity or atrocity – in fact, not even outright genocide – was enough to teach the colonising West any kind of humanitarian lesson. No conventions and no protocols ever emerged as a consequence of Sand Creek, Bud Dajo, or the Herero genocide.
Moreover, a growing amount of scholarly works point towards the laws of war’s inhumanity even beyond the context of colonial war. As Kinsella notes, “the formal laws of war, primarily the 1899, 1907 and 1929 Hague Conventions, said very little about the definition, much less protection, of the civilian because the protections and standards of civilization were said to be sufficient” (p. 104). In fact, references to humanity tended to be “marginal” (p. 135) and a “fringe benefit rather than a goal” (p. 29). Instead, the guiding principle of war, as famously set out by the Lieber Code itself, was that “[t]he more vigorously wars are pursued, the better it is for humanity” because “sharp wars are brief”.
It is therefore curious that a few decades later, these same states would specifically agree on an entire Convention dedicated specifically to the protection of civilians. “To explain this ‘miracle’”, van Dijk says, “scholars have pointed to a long-term humanitarian development, the impact of the two world wars, or the Holocaust in explaining the treaty’s genesis” (p. 53). This is not his explanation. Instead, he focuses on how the “transformative impact of ‘human rights thinking’” challenged the sharp war conceptions of military occupation (p 55).
Traditionally, large European armies were expected to act as “arch-occupiers”, where “the ends of humanity in warfare were met as best they could be when an invaded or occupied populace stayed in its homes and went to its normal work-places, and kept itself assiduously and conspicuously apart from whatever hostilities might still be going on” (p. 181). This expectation, however, was increasingly detached from the reality of 19th century nationalism, where insurgent movements and partisan warfare were becoming a normal part of any occupation. The so-called “necessities of war” were then often invoked as justification for inhumane measures against the disloyal civilian population. As van Dijk states, the laws of war “never strictly outlawed the use of hostage taking, collective penalties, or reprisals, and made noncombatant’s protection conditional” (p. 57).
Preparing for War tracks the slow process through which this changed, not as the immediate and universal response to World War II atrocities, but as the result of a longer process, with heavy involvement of the International Committee of the Red Cross (ICRC), but also strong opposition from the US and the UK. In fact, repeating the dynamic of decades past, when the Allies met in the 1947 Government Experts’ Conference, “Anglo-American representatives tried to secure the occupier’s interests” while “the victims of Nazi occupation demanded rights for civilians in occupied territory” (p. 73).
Things hadn’t therefore changed, lessons had not been fully learned. Back in 1874, for instance, it had been Belgium and the Netherlands that had defended the rights of the so-called “Petit États” to defend themselves during occupation, demanding that civilians be protected from reprisals in cases where partisan warfare erupted. Germany, Russia and other large empires, instead, used their diplomatic muscle to stifle or water down these proposals to the point of obsolescence.
The dynamic at the Experts meeting in 1947 was essentially the same, but the result was manifestly different. Van Dijk explains this discrepancy as the result of a Faustian Bargain: due to pressure from the ICRC and France (and given the absence of supporters of the arch-occupier paradigm in the Conference), rather than blocking the debate, the UK “started thinking about how to use it for its own purposes while attenuating its effects on Britain’s interests in the context of growing East-West tensions and the violent insurgency in Palestine” (p. 75). In order to achieve progress, the ICRC, in turn, sought to balance these concerns with the human rights demands of Nazi victims. The result was a draft that incorporated “only a selective human rights agenda, opposing many forms of arbitrary counterinsurgency measures while limiting their focus to a select group of enemy civilians” (p. 82).
But even this watered-down version, palatable to Anglo-American sensitivities about being occupiers in a future Cold War confrontation, was at serious risk of faltering. As Boyd reveals, “the ICRC also drafted a secret resolution for a reduced version in case of the original draft’s rejection by Anglo-American drafters” (p. 80). Once in Geneva, in fact, the British “wished to completely revise” the initial draft (p. 88). The ICRC’s “nightmare scenario” and a repeat of 1874 was closer than most like to imagine. Instead, the coup de grace that sealed the Conventions fate came in the shape of an unexpected ally: the Soviet Union.
The Soviets, van Dijk tells us, “imagined the next war to be more like the last one, demanding protection against potential Western occupiers” (p. 172). They, therefore, changed the balance of power in the conference, by supporting many of the proposals of the ICRC, even if for different reasons. For the Soviets, the issue of occupation and civilian resistance was an opportunity to strengthen communist uprisings in the colonial world. Thus, the Soviet delegation “turned the final stage of the drafting process into a sort of a postcolonial forum in which Western imperial powers could be harshly criticized” for their hypocrisy in the context of colonial war (p. 127). Contrary to common perceptions, therefore, the “miracle” of Geneva was not the result of Western enlightenment, but of, on the one hand, American and British resistance and, on the other, French and Soviet pushing. For the British, in fact, far from a humanitarian victory, the general feeling was that “the outcome could have been much worse” (p. 316).
Van Dijk’s argument, therefore, that the modern-day idea of an international humanitarian law is a recent one, is liberating for a discipline too often still shackled to its 19th century antecedents. For him, instead, “the Conventions cannot be tracked back to a common perspective or universal core”. Instead, “they were hybrid constructs, shaped by different drafters with contrasting political aims” (p. 12).
Preparing for War is, therefore, an interesting springboard from which lawyers can construct a 21st century concept of the discipline, one that is cognisant of its recent origins and the 20th century “human rights thinking” that played a big part in its creation (p. 55). More than the reward for centuries of efforts, therefore, the Geneva Conventions should be seen as a turning point, where specific geopolitical developments led to the creation of treaties that broke with the humanity-as-marginal tradition of Hague law.
These geopolitical developments, one might even argue, have not remained static. They have led to a fundamental change in the way international humanitarian law works, particularly because of decolonisation and Global South involvement in the Additional Protocols. National Liberation movements received belligerent rights (an unthinkable idea for the Brussels delegates) and the protection of civilians received increased attention. International humanitarian law is moving away, or at least it can move away, from its 19th century roots and it is my hope that van Dijk’s historical contributions will play a role in the legal discussions that are to come – Discussions were, for some, legal interpretation should accept that Lieber’s military necessity “survives to this day and is by no means a relic of American history” (p. 106) and, for others, legal operators should interpret humanitarian rules protectively (Haque, 33) and “to serve humanitarian goals” (p. 725).
In closing, I want to congratulate van Dijk for writing a fantastic book and I look forward to his comments.