27 Apr Symposium on Boyd van Dijk’s Preparing for War: People Count
[Andrew Clapham is a Professor of International Law at the Geneva Graduate Institute. He has been a Commissioner with the UN Commission on Human Rights in South Sudan since 2017. He is an Honorary Member of the International Commission of Jurists. In 2021 he published a book entitled War.]
Preparing for War is a fascinating read. Dr Boyd van Dijk takes us to the heart of the negotiations and lets us see into the minds of the key players. He gives us an important reminder of how reductionist it is to say the United States wanted this – or the approach of the ICRC was that. In reality, treaties may be negotiated by delegations, but people within those delegations can have very different views over what should be in a treaty and what should be left out. As the Chapter on Indiscriminate Warfare reveals, some people felt that the starvation of civilians through a ‘hunger blockade’ and the indiscriminate aerial bombardment of cities should be urgently addressed even criminalized, others saw such methods of warfare as ‘weapons of peace’. Blockade as authorized by the League of Nations was seen as the best way to tackle an aggressor, even if some would have liked humanitarian exceptions for its use in future ‘sanction wars’ (at 212). At the same time powerful states sought to keep indiscriminate bombing off the agenda, first because they sought to retain this possibility as a war-winning strategy, and second, because by prohibiting indiscriminate bombing one might indirectly end up outlawing nuclear weapons. In the end both blockade and indiscriminate bombing were successfully excluded from the scope of the 1949 Geneva Conventions.
As the negotiations in the 1940s develop we see how individuals could be for or against tackling such topics, but the fascinating aspect of Dr van Dijk’s research is that we often see how those on the supposed humanitarian side of the conference could compromise due to their pragmatic concerns over the success of the negotiations. We are treated to speeches, private communications, and inquiries into the personal stakes for the individuals involved. I leave you to read the actual chapters to discover the twists and turns in the story. My point here is that we learn a lot about humanitarian law by learning who took what out of the treaties. It is not a simple story of compromising over what humanity demands when fighting a war. It is more about the particular circumstances reigning at the time and the personal preferences of some key negotiators. As Dr van Dijk himself has blogged: ‘actors can make a difference. Agency matters.’ Or, put another way: people count.
One of the most interesting argumentative manoeuvres detailed in the chapter is that the Geneva Conventions and the International Committee of the Red Cross should be limited to the protection of the individual victims of war, the wounded, the prisoners of war and the individual alien civilians who would be labelled ‘protected persons’. To discuss aerial warfare, indiscriminate attacks, blockade or prohibited weapons was, it was argued, the work of another body, another Conference, another city. We see in the Chapter how ‘major Western powers’:
‘justifed these restrictive efforts by considering [unrestrained air power and Hungerblockade] as belonging exclusively to “Hague Law” rather than “Geneva Law.” By replicating this deceptive justification as the reason Geneva had stayed “silent” on the matter of, especially, air-atomic warfare, scholarship has created a form of historical silence, relegating to oblivion the enormous struggle that took place to prevent the diplomatic conference from regulating indiscriminate warfare, with critical consequences for how we understand the Conventions today.’ (p. 201).
The key manoeuvre is detailed in the Chapter: there would be a prohibition on the extermination of ‘individual protected persons’ but not ‘the civilian population as a whole’. ‘Nazi-style extermination of individual protected persons’ would be prohibited, but not ‘airborne group-annihilation. At 238. As Dr van Dijk explains (p. 237)
‘In a surprising move, the Soviets then used Article 29 [eventually Art 27 of Geneva IV], which guaranteed individual protected persons of human rights protections against torture, as another means to place limitations upon Western air power. By using human rights strategically against the liberal powers, the Soviet communists tried to widen the provision’s individualized scope to mass ill-treatment of entire groups through extermination. The major Western powers saw this move as a backdoor attempt to ban strategic bombing and nuclear warfare entirely. The Soviets and their allies, referring to the recent war’s extermination of civilians— even to the Holocaust itself— received support from formerly occupied nations and also from the Nationalist Chinese delegation, whose leader had personally witnessed Japan’s terror bombing.’
Today the United States continues to baulk at the idea that it could never resort to indiscriminate bombing in reprisal, as explained by Haque in his post. And the United Kingdom seem to claim to reserve the right to act in reprisal to a disproportionate attack in kind ‘after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government. Any measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise there to …’. For this to change, states will have to change their positions. More importantly, some people need to change their minds.
International humanitarian law is not set in stone. In Preparing for War we find multiple examples of individuals circumscribing the meaning of provisions with a view to the perceived future interests of their states, but also others pleading for a more expansive set of protections based on their recent experiences of war. As allegations swirl around the violations of the laws of war committed in Ukraine, it is time for all of us to consider where our interests lie. Is it enough to concentrate on the fate of some unfortunate individual protected persons, to the exclusion of the thousands affected by the bombardment and siege? In thinking about the accountability mechanisms my suggestion here is that we remember all the victims of war and not just those selected for special protection in 1949. In this latest conflict both Russia and Ukraine are parties to the later Additional Protocol I that lists as grave breaches a wider range of those to be protected for the purposes of war crimes law. The grave breaches regime obligates all states parties to:
search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ‘ prima facie ‘ case.
The Protocol go beyond the protection of the individuals identified in 1949 and lists further additional grave breaches which include:
The ‘following acts … when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health:
(a) making the civilian population or individual civilians the object of attack;
(b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii) ;
These grave breaches are war crimes, which can be prosecuted at the international or national level. But as Dr van Dijk chapter shows, there is still room to outlaw more effectively the means and methods of warfare that have proven so destructive of human lives. Blockade, siege, aerial bombardment and nuclear weapons have killed and continue to kill thousands of people. As individuals committed to this field of law we should not be too complacent about the state of law, but struggle to eliminate the idea that these are appropriate methods of warfare in the modern world. Some philosophers like Frowe would ask us to go further, pointing out: ‘There is no number of casualties that is proportionate to achieving the occupation of Ukraine’. We can expand our concern beyond protected civilians to all those who are the victims of war. People count.