25 Apr Symposium on Boyd van Dijk’s Preparing for War: Beyond the Solferino Myth
[Professor Eyal Benvenisti is the Whewell Professor of International Law at the University of Cambridge, CC Ng Fellow in Law at Jesus College, and the Director of the Lauterpacht Centre for International Law. In Fall 2022 he will be the Samuel Rubin Visiting Professor of Law at Columbia Law School.]
Boyd van Dijk’s “Preparing for War” offers a rich historical account of the drafting process of the 1949 Geneva Conventions which goes beyond the usual triumphalist rhetoric and uncovers the behind the scenes strategies, struggles and coincidences. The book significantly contributes to resolving a lingering question: what has prompted strong and weak governments to bind themselves to restraints on their behaviour during war, even if their very survival is at stake? Over the years many have attempted to answer this question, ranging from realists who pointed out that those rules were simply “cheap talk” lacking any real purchase against breaches, perhaps even rules that condoned brutality, and idealists who were inspired by ‘the Solferino myth’ that saw the ICRC’s dedicated men succeeding to promote humanity’s cause against all odds. Many realists and idealists shared an assumption of progress: That at each stage of the codification of the laws of war, from Lieber’s code (1863) and the First Geneva Convention (1864), the impetus, at least of the initiators of the various texts, was to further bolster the protection of civilians and of combatants hors de combat. Thus, every chapter in this long codification process formed part of a linear progression toward more humane warfare. According to van Dijk, this was also the motivation of the ICRC in 1944, when it started to revise the Conventions, thereby seeking to “[h]umaniz[e] warfare” (333).
But van Dijk’s perceptive account also adds a missing piece to the counter-story, one that suggests that each chapter of the codification process of the laws of war reflects not (or not only) humanitarian concerns, but also, if not primarily, a forward-looking struggle among armies seeking to improve their positions in future battles. Van Dijk’s important book rightly questions the “foundation myth of the Conventions” as “satisfying the world’s deep-rooted desire for catharsis in the wake of the war’s appalling brutality” (2). He notes the ICRC’s strategy behind “cementing a mythologized image of the emergence of the Conventions in the years after 1949.”(309). Critically identifying the major lacunas of the 1949 Geneva Conventions as well as the protagonists responsible for the gaping omissions, he shows that these gaps and omissions resulted from strategic Anglo-American concerns about the onset of the Cold War and revolts in the colonies. He demonstrates that the Conventions were “the outcome of a series of political struggles among the drafters” and were not “merely a product of idealism” (4, my emphasis).
The 1949 Conventions not merely a product of idealism because some protagonists, according to van Dijk, were indeed idealists. The book shows that the myth has at least a grain of truth, in the sense that there were enough forces for the good behind the success of the 1949 Conventions, and a lot of ground was covered by the texts of the four Conventions, especially the revolutionary Common Article 3 and the Fourth Conventions. Van Dijk is convinced of the ICRC’s sincere efforts to humanise warfare, and he describes the contributions of other actors who shared this motivation, mainly France, and several individual lawyers who took part in the deliberation and drafting. These actors were not strategic, and their humanistic spirit was prompted by the fresh experience of the war (including their horrible personal experiences, as delineated in Gilad Ben-Nun’s insightful study). The Soviet Union also played a crucial role even if ultimately for strategic reasons. So there is indeed much in the book to support a version of the Solferino myth, the heroic myth, that invokes a struggle of a handful of idealists who manage against all odds to secure at least some gains for humanity.
Despite taking an aim at the myth of the Conventions as “a catharsis in the wake of the war’s appalling brutality,” ultimately van Dijk is sympathetic to the heroic version of the myth. He concludes the book by celebrating the ICRC’s initiative, leadership and political acuity: “Few could have imagined … in 1944, when the ICRC began revising the Conventions” that they would succeed in their effort to “[h]Humaniz[e] warfare” (333). The book’s ending in a conciliatory: “[w]hile far from fully realized, that powerful vision of humanity and brutality restrained continues to inspire humanitarians today.”
This heroic myth can be expanded beyond 1949 to cover the entire history of IHL codification as a story of a battle of the good against evil, where the “good guys” ultimately triumph through diplomatic ingenuity, clever lawyering, the charisma of certain individuals, and sometimes with public pressure. In the Brussels conference (1874) and the Hague Peace Conferences (1899, 1907) the villains were the Germans. In 1949, as van Dijk describes, it was the Anglo-American alliance that is responsible for the gaps and the silences of the Conventions. Indeed, according to van Dijk, if the British and the Americans didn’t mind the Soviet propaganda they would not have accepted the many burdens the Conventions did impose on them. The myth of good against evil would highlight the ICRC’s determination and sophistication in the drafting of the Additional Protocols of 1977, when they faced a host of “villains”: the non-aligned movement seeking to restrict the scope of the law applicable in internal armed conflicts; guerrilla fighters who openly declared that their strategy could not spare civilians; and the unlikely collaboration between the two superpowers seeking to minimize their duties in war as much as they can (as perceptively told by Giovanni Mantilla).
There is much to be said in support of this heroic version of the myth, and van Dijk is of course correct in noting that for most of us, even today, even after reading the book, the 1949 Conventions reflect the victory of “humanity and brutality restrained.” And most of us are still inspired by this vision when we interpret and apply these and other rules of IHL (itself a vision-inspired term for jus in bello). Interpreting IHL from the perspective of “humanity and brutality constrained” has proven to be a very effective means to fill the many gaps that the drafters of the Geneva Convention and other texts left on purpose. These myths persist because many believe that to ensure the success of “humanity and brutality constrained” one must not question the basic assumption, that throughout the last 150 years the codification effort has sought to promote humanity and to constrain brutality as much as possible.
And perhaps van Dijk is apprehensive about the perilous consequences of debunking the myth of Solferino: without it, how would the gaps and loopholes left by those preparing for war be filled by idealist interpreters and judges? Is it a moral imperative to keep this myth alive, so that interpreters, such as international criminal tribunals would feel empowered to humanise the laws of war?
The problem with myths is that they are ultimately built on a lie and therefore their resilience to realist critique is precarious. As Susan Marks pointed out “[t]o speak of myth … is to speak of misconceptions, false opinions, or erroneous beliefs that are widely held.” The creation and maintenance of the myth of Solferino is a problematic endeavour once the archives are open to the public.
When Doreen Lustig and I studied the history of the codification of the laws of war in the second half of the nineteenth century, and particularly the drafting of the 1874 Brussels Declaration, we saw a rather dispiriting picture, where evil silences the good. We found that the late 19th-century codification of the laws of war was designed by powerful governmental actors to monopolize their authority vis-à-vis competing domestic actors. The 1874 text condoned the most brutal acts perpetrated by the Prussians and the French during the Franco-Prussian War of 1870-71, including the indiscriminate bombing of Strasbourg, the execution of French irregulars (the francs-tireurs), and the bloody massacre in Paris perpetrated by the French Republican government to quell the French Commune. In our story, the Brussels Declaration is a monument for brutality through international law.
Another drafting process in which “the good guys” were less noticeable took place during the 1960s under the auspices of the Institut de Droit International, which appointed as the rapporteur for the 1969 Resolution on “[t]he Distinction Between Military Objectives and Non-Military Objects in General and Particularly the Problems Associated with Weapons of Mass Destruction” a West-German conservative law professor who had been a former commander of the Wehrmacht and a member of the Nazi party. This expert was determined to fight what he saw as a Communist threat to Western Europe through “new international law” (here). His definition of “military objectives” was designed to burden guerrilla fighters who had no access to discerning weapons, casting them as “terrorists.” The gaps and silences of the 1969 Resolution exposed the civilian population of the weaker side to indiscriminate attack based on the theory that in guerrilla warfare there is no distinction between irregular forces and their civilian sympathizers. The definition was immediately endorsed by the ICRC and was later replicated (with minimal modifications) as Article 52(2) of Additional Protocol I.
If the myths are but myths, what could form a firm alternative basis for the humanitarian interpreter? Perplexed by powerful European governments using international law to exclude the voices of civil society, Lustig and I outlined a normative argument for giving voice to the disregarded communities when interpreting IHL treaties that affect them:
“Our history of the laws of war exposes the turn to international law as a countermajoritarian project, and this arguably authorizes –in fact, requires – the judicious interpreter (a domestic or international judge applying IHL) to adopt a critical attitude toward existing treaties and to take into account the interests of the underrepresented in the process of construing it.”
Stated otherwise, “judicial interpretation endorsing the humanitarian aspects in these sources might prove more democratic than the original elitist formation of the laws of war.”
A more traditional argument would invoke international human rights law as applicable directly or otherwise informing the interpretation of its lex specialis. The deep connection between IHL and human rights law that van Dijk also notes has been at least since the 1960s a major source of inspiration for reforming IHL through drafting new documents or through their interpretation. Such a bond between the two sets of norms is grounded in strong commitment to humanity, and it requires no myths to support it. The legal imperative, reflected in the VCLT’s rules on “systemic interpretation” (Article 31(3)(c)), call for an interpretation of IHL texts that promotes humanity and restrains brutality. Van Dijk’s book offers an important support for this humanistic interpretive standpoint.