Symposium on Boyd van Dijk’s Preparing for War: The Making of Future Wars – A Methodological Note

[Karin Loevy is a fellow at NYU School of Law, where she serves as the manager JSD Program. She is also a researcher at the Institute for International Law and Justice (IILJ) where she leads the History & Theory of International Law workshop series. Her current work is in history of international law in the Middle East in the period leading to the mandate system.]

One thing that I find fascinating about history of law generally is that it allows us to think deeply about one main aspect of what lawyers regularly do: imagine the future and try to shape it in advance. If lawyers are constantly engaged in such practice of imagining, international lawyers, and especially drafters of treaties and conventions imagine on the utmost horizon – on the global and beyond. What does it mean to imagine “the world” and to try to shape it? Historians of international law have the opportunity to uncover what may be involved in such practice – how embedded experiences, ideas, interests, perceptions and expectations shape the imagination and design of world futures.

Boyd Van Dijk’s Preparing for War – The Making of the Geneva Conventions, is a fantastic example for such methodology. The history of the drafting process of the most influential IHL instruments (arguably among the most influential international law treaties to date) that the book unravels is the story of various drafters as active protagonists trying to shape the future of warfare, “by deciding who deserved protection, what counted as a legitimate target, whose lives mattered, whose did not, when these principles applied, and who had the right to enforce them” (p. 5). These were a varied (though mostly European men) group of state and non-state actors – former leaders of wartime resistance movements, victims of Nazi persecution, former prisoners of war, doctors, veterans, colonial officials, military officers, ambassadors, academics, and countless others. They were all involved in the making of a new international legal order, based on the premise that wars should have limits. But they were embedded in very different past experiences and shaped by ideas, political interests, perceptions, and expectations about what was to come (p. 5). Some were outspokenly anti-imperialist, many others – deeply involved in maintaining empire and defending colonial sovereignty. In making the Conventions, they engaged in very different projects: some sought to contest European imperial rule, some to empower the ICRC, to challenge state sovereignty, to fight Cold War rivalries, to ensure rights during wartime, to reinvent the concept of war crimes. But most significantly, in the messy project of future world/law making: to prepare for wars to come.

A preliminary question for such a project was of course who to include and who to exclude from it. The field on which a new world order was being shaped, was remarkably uneven. Its main actors often represented belligerent states that were “armed to the teeth” (p. 6). At the same time, the Swiss and the ICRC expressed reluctance to invite those fighting against colonialism, revolutionary movements, or subaltern actors who failed to obtain European recognition (p. 21). The result was a highly Eurocentric drafting process, oblivious of the positions of most of those who would in the coming decades become directly affected by wars shaped by the emerging set of rules. For the Government Experts’ conference in 1947, for example, the ICRC had invited only those governments that:

“possessed extensive experience with POW affairs, and whose subjects had recently been imprisoned by Axis states. This meant excluding numerous states, encompassing neutral powers (even Switzerland itself), former Axis nations (Finland, for example), Allied states without extensive experience in matters of wartime captivity (Latin American Allies except Brazil), and those that European colonial powers did not recognize (such as the Indonesian Republic) “(p. 37).

But even within the in-group of drafters there were not only hierarchies, but also very different visions of the type of wars to come and how to regulate them. The book gives vivid accounts of many of them, but pays particular attention to the French, the Soviet, the British and the American delegations. 

The French drafters in response to Nazi occupation, presented a progressive demand for robust rights for interstate resistance fighters. At the same time, they had to bring this project into line with their brutal counterinsurgency campaign in Indochina and other anti-colonial insurgencies they were expecting to face in the (near) future. They were thus imagining and attempting to shape a future war in which colonial sovereignty is maintained (outside of Europe) while state sovereignty (in Europe) may be limited. Thus, while standing for partisan protection (and even reimagining notions of human rights) for interstate occupation, the French delegation clearly sought to protect colonial interests when they suggested, for example (in regards to Common Article 3), omitting “any attempt to specify the kind of armed conflict which are not international in character,” requesting the complete removal of every specific reference to colonial conflicts (p. 122). The French delegation invoking the experience of resistance from the Vichy and Nazi era were at the same time engaged in the newly established NATO alliance and in fighting colonial insurgencies in Indochina. The future wars they imagined were implicated by these positions, complicating our historical understanding of the French role in the drafting process.

Another example for the complex understanding of the drafting process as practice of imagining future wars that the book opens up, has to do with the role of the Soviet delegation. The Soviet Union, we learn, proposed to regulate civil wars but remained silent about its suppression of anti-communist insurgencies in Eastern Europe. Thus, on the one hand, we learn that in drafting the Civilian Convention the Soviets endorsed limitations upon hostage taking, reprisals, collective penalties, and racial discrimination, bringing their views closely in line with those of the French and ICRC (p. 87), to the effect that ICRC drafter Pilloud would later comment privately that he “hardly dared to think what would have become of the Civilian Convention without the presence of [the Soviet] delegation.” (p. 87). Indeed, the Soviets made the conference into “a sort of postcolonial forum where western double standards could be vilified” (p. 319). At the same time, they and their allies defended state sovereignty by preventing political prisoners from accessing the Civilian Convention, they refused to adopt penetrating enforcement mechanisms, and denied the ICRC a mandate to visit Soviet prisons (p. 319).

But the most striking examples for future-wars-making practice in the drafting process came from the attitudes of members of the British and the American delegations. The Americans, for their part, did much to prevent any discussion of aerial bombardment on account of their fear that restrictions will undermine their capacity to further their interests in the Cold War.  The British tried to prevent human rights from overlapping with the laws of war, protecting their colonial and Cold War interests. Both delegations represented war-making Powers and from that position foresaw future outbreaks of Cold War and anti-colonial wars and worked hard to prepare the legal landscape that will allow them as much freedom as possible in response. “(N)one of the Conventions should apply to [ … ] racial riots [or] armed disturbances in the Colonies,” warned a Home Office report from January 1949 responding to the Stockholm draft, and a Foreign Office report called the draft’s relevant section on internal war “totally objectionable” (p. 123). British Security Services stated that “it would be manifestly absurd for the Convention to be [applied to the] Communists in Malaya.” The prospect of “similar troubles” in other parts of the Empire were very much on these agencies minds as they were pushing back against more progressive attempts to internationalize colonial conflicts and intrastate wars (p. 123).

The Anglo-American future wars vision was especially revealing in their attitude towards indiscriminate strategies such as air and nuclear bombing, and blockades – which they presented as winning methods that brought down the Axis Powers and should be open to their use in future wars (See Chapter 5). Rather than some of the greatest threats to civilian populations, these delegations argued that precision bombing and blockading enemy societies to starvation were acceptable methods of warfare, causing only “incidental” civilian death (p. 222). Expecting that the Soviet Union will not have the capabilities of directly striking the enemy from afar, they tried “to legitimize blockade and air-nuclear power through the fabric of international law, to prepare for a future military confrontation with the Soviet Union” (p. 222).

To be sure, imagining and shaping future wars is not only a theoretical interpretation of what these drafters did. The actors themselves understood what they were doing in these terms. They all shared a fear of war, a widespread fear that – as described in the conclusion, drove them to regulate war rather than to ensure peace (p. 320). But they were aware of the project they were involved in also when they were reflecting on its details. For example, the head of the British delegation, Harold Satow, who during the war was a member of Whitehall’s POW Department, complained that his continental allies, especially the French, suffered from an “ex-occupied” complex. Satow believed that these victims of Hitler’s empire “had an overly emotional outlook full of blind spots. Unable to think like occupiers, they produced texts, he argued, that would hamper their future ability to put down (anti-colonial) rebellions” (p. 38). It was the experience of war making that would according to the British delegate be conducive to making the future (colonial) battlefield. The wartime experience of victims was seen in this light as counterproductive.

But stressing the importance of different war experiences for the project of shaping future wars, is a major contribution of the book as it pays particular attention to the background of prominent drafters. The main legal experts for the US delegation, for example, did not have major reputations in the discipline of international law. Instead, they had practical experience in legally administrating occupied territories and POW camps. They were concerned to defend the United States’ monopoly on atomic weapons and uphold the rights of occupiers (p. 46). That was true also of the British’s delegation’s William Gardner who gained practical experience with the POW Convention during the war, and throughout the drafting process, defended the rights of detaining powers as an apologist for empire (p. 46.).

On the other hand the French delegates had a distinct experience in underground resistance and were committed to obtaining international recognition for partisans and civilians in interstate wars (p. 47). But that experience was far from conclusive for the positions they expressed throughout the process. Just as the memories of the fascist occupation shaped French legal attitudes, so too Cold War decolonization experiences and expectations led French representatives to exclude from the Conventions prisoners taken in colonial wars and communist spies (see Chapter 4).

Special focus is given in the book to women’s involvement in the drafting process and the unique experiences of those women drafters in the war is seen to affect the kind of futures they were able to envision. The French delegate Andrée Jacob, for example, was a former resistance fighter, working underground she forged paperwork for Jews in hiding and helped organize the resistance movement. After the Liberation of France, she joined the Ministry for Prisoners, Deportees, and Refugees, where she became involved in shaping French legal positions, advocating for the rights of deportees on the international stage, and – along with other women drafters – actively shaped the Conventions’ drafting and its outcome (pp. 49-50).

More generally, victims of Nazi persecution seemed to carry special kind of knowledge for imagining and designing future wars:

“All of these women and men had suffered during the Second World War. Luca’s family had been wiped out during the Holocaust. Gutteridge witnessed the terrible destruction caused by the Blitz. German executioners had summarily shot Bourdet’s comrades. Slavin had fought in the bloodlands of Eastern Europe. Dillon had personally seen the railroad cars filled with bodies following the liberation of Dachau. Rao had spent time as a POW, having been captured in Italy. Tauber had survived the horrors of Auschwitz. And many more delegates besides had emerged from the war damaged by years of persecution, fighting, bombing, isolation, starvation, torture, and other forms of ill-treatment. As a result of these deeply personal experiences, the delegates were keenly aware not just of the inhumanity of total warfare or the need to make it less destructive, but also that the fate of “millions of human beings” depended upon their decisions in Geneva. Protecting civilians was among their most pressing concerns. (p. 51)

This particular sensitivity of the Conventions’ leading architects, the personal knowledge of wartime suffering of major drafters, is also what explains the infusion of “human rights thinking” into preexisting legal frameworks that privileged wartime occupiers’ rights (Chapter 2). Nazi style counterinsurgency policies like hostage taking and collective penalties were no longer appropriate tools to safeguard political order in Europe. But with very little former and present colonial subjects in the rooms where future wars were being imagined and shaped, and with so much stakes for the major Powers in free conduct in these wars (as well as the ICRC’s reluctance for reasons that have to do with global institutional politics), it is no surprise that the infusion of human rights thinking into humanitarian frameworks was limited and selective (pp. 70-71).

Most of all, the book’s account of the drafting process shows that the work of imagining and shaping future wars, was a tangled and disordered business. Yes, certain positions were clearly placed, like the Anglo-American concern about colonial insurgencies, but not only that drafting delegations and other actors changed their positions along the way – there were also quite unpredictable turns of event – like when the Soviets showed up in support of the Civilian Convention and endorsed limitations on reprisals, collective penalties, and racial discrimination (p. 87). In that this history follows the lessons of Susan Pedersen’s work on the League of Nations and of Lauren Benton and Lisa Ford’s work on the British Empire as an early international legal order – showing that international legal norms and institutions developed not by clear central design but by the very extension of space – messy and arbitrary as it was – for international interaction around legal reform – a global space of regulation that carried value even as it was vulnerable and skewed. This may well be one of the valuable contributions of Von Dijk’s remarkablework to theory and methodology of IHL history. The understanding that legally preparing for war is not (or not only) a realist endeavor of justifying violence, nor is it (only) an idealist project of humanizing war. It is an act of imagination, messy and unpredictable, that is shaped by experiences and expertise but also by interests, ideas and expectations. In that, Preparing for War joins histories of international law that stress the vital role played by legal imagination in the formation of international order.