27 Apr Symposium on Boyd van Dijk’s Preparing for War: Revisiting the Meaning of “State Interests”
[Doreen Lustig is a Senior Lecturer at Tel Aviv University Faculty of Law. She studies the history and theory of international law, global governance and constitutional law. She is the author of Veiled Power: International Law and the Private Corporation 1886-1980 (Oxford University Press, 2020).]
Preparing for War is an insightful account of the history of the drafting of the four Geneva Conventions of 1949. The common narrative on the Geneva Conventions depicts them as a response to the horrific experiences of the Second World War. This account emphasizes the role of a “skilled cohort of liberal international jurists dedicated to rectifying the conventions’ shortcomings.” Key elements of the conventions exemplify that narrative. As Van Dijk notes in the introduction, the Geneva Conventions include “[t]he most important rules of armed conflict ever formulated.” Yet, while Van Dijk concedes to some aspects of this common narrative, his main argument is that the drafters were not using the convention to apply their lessons from the war that just ended. Rather, they were deliberating the kind of international law that would exist in future (proxy) wars and the forms of violence it would tolerate. Preparing for War thus shifts the historiographical lens to the postwar international terrain and the future wars the drafters were worried about.
Destabilizing State Interests as an Explanatory Lens
At first glance, one could read Preparing for War as an attempt to decipher how states interests in contemporary and forthcoming colonial wars shaped their attitudes towards the conventions. The methodological choice of telling the history of the convention through the lens of state interests, as different state representatives conveyed it resonates with a realist approach to international relations. However, throughout the manuscript, Van Dijk carefully demonstrates the elasticity and malleability of the term “state interests.” He shows that the conventions were not an outcome of design, as scholarship has suggested previously, but rather “that of evolving ideas and a long struggle, of a twisted road with several surprising turns of events.” (p. 56) Rather than considering ‘state interests’ as a fixed explanatory lens for the history of international law, Preparing for War challenges the possibility of addressing interests as a stable category and as such offers an important critique of that disposition.
The changes in the British position on Common Article 3 is a case in point. The British delegates entered the negotiations on CA3 determined not to allow any regulation of colonial warfare. Van Dijk describes how “[t]he hawkish Shawcross, in particular, firmly opposed any proposal that would potentially hinder British colonial officials from punishing insurgents as traitors: “it must be remembered that these Conventions,” he told the Foreign Office, “affect the Colonial powers more seriously than any others …” And yet, despite their firm resistance for such regulation at the early phases of the negotiations, the British would eventually change their position and agree to some form and scope of regulation of civil wars. Quite early in the negotiations the leader of the British delegation realizes “[that] we shall be alone in adopting a purely negative attitude on this subject.” He repeatedly “expressed concern about the loss of Britain’s prestige …” Eventually, even though the British delegation preferred to have no civil war clause at all, they decided to seek support for the French text. This multifaceted analysis of the British position and the tracing of its changing attitudes over time challenges the notion of interests as coherent, anchored and steady. Furthermore, the disaggregation of the British position (e.g. the divisions between the war office committee and the home office committee) further calls into question the reified notion of the ‘state.’
The malleability of state interests as well as the disaggregation of the state join a third insight we could draw from this history of international law ‘in the making’. As lawyers, we tend to focus on the final document of the conventions – the articles themselves – as the primary objective of such negotiations and the focal point for our analysis. Yet, the historical tale this book unravels forces us to divert almost all of our attention to the politics of the formation of the text rather than the text itself. It further exemplifies how coalitions are forged. The bipartisan Cold War coalition of ICRC experts, Western European delegates, and Soviet officials that triggered a major legal breakthrough in the Civilian Convention is a case in point. In doing so, it reveals how international lawmaking could operate, at times, though not always, as a vehicle of constraint over the exercise of power by governmental leaders. Alternatively, at the very least, how such processes could open the possibility to negotiate interests and redefine their meaning once they are subject to peer and public scrutiny.
Time as an Explanatory Lens
The book’s title, ‘preparing for war’ encapsulates the gist of its argument – “In making the Conventions, drafters were preparing for the wars to come. The drafting of these conventions was forward looking rather than backward looking.” This is an important argument on the processes that shaped the content of the conventions and arguably the book’s main argument and contribution. I nonetheless wonder whether one could read the book as providing a slightly more nuanced take on the meaning of time (past, present future) for its protagonists. I sometimes think of at least some of the thinkers of the postwar era as post-traumatic. Think of the early classic realists who opted for a grim portrayal of the world and insisted upon a clear-eyed gaze at the perilous positions of their existing or potential rivals. Of course, they were worried about the future and deeply immersed in the politics of the Cold War. Yet, at the same time, it seems plausible to assume that their views were constrained and shaped by their experiences in the wars of the past. Some, though not all of van Dijk’s protagonists experienced the horrors of the war themselves, their families perished, their loved ones lost. Just to note a few examples, Van Dijk describes how the Romanian delegate Elisabeta Luca, an antifascist veteran of the Spanish Civil War whose family had been wiped out during the Holocaust left a lasting impression on the conference. Or the French delegate Bourdet, a former political prisoner in the Nazi concentration camps, who demanded to ban political imprisonment. A military man, named Nikolay Vasilyevich Slavin, led the Soviet delegation, had served as a Red Army liaison with the Western Allies during the war and had helped to repatriate US POWs from liberated German camps. As noted in the book, “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…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.” (pp. 102-103)
How could we reconcile the influences of such personal biographies and the argument that the convention was primarily forward-looking, preparing for the war that lies ahead? One possible answer would be that Van Dijk does not completely exclude the past or the biographies of his interlocutors as an explanatory lens. What he may be trying to do here is to offer a different meaning to their past. Such interpretation would suggest that the book challenges the teleological, progressive, moralistic tale of the past as something that clearly motivated the different protagonists to pursue a better future. So what difference did their past make, if at all? It may have made them more attentive to the regulation of warfare; it probably made the whole project of regulating the laws of war more meaningful, even personal to some of them. One could also argue, more critically, that the hardship that some of them experienced could explain their diligence in constraining wars between Americans and Europeans while remaining aloof to the suffering of colonial subjects.
To conclude, Preparing for War meticulously demonstrates “state interests” as a malleable category, which cannot be presumed as stable, rational or coherent. It offers an intriguing account of the meaning of history and time to such lawmaking processes. State representatives arrive at the negotiating table with their personal past, which, in turn, shapes their assumptions on the future. They prepare for war through the lens of the wars they have seen and fought before. State interests could not be entirely divorced from the particular experiences of those who represent them at the negotiating table. Rather than telling a rigid diplomatic history or a biographical tale that celebrates the agency of key interlocutors, Van Dijk’s account suggests how both aspects intertwine in shaping the states’ interests. Moreover, drafting of a convention is a communicative practice and as such operates as an open-ended playing field that could shape, constrain and change such interests. The book’s description of the maneuvers and unexpected twists and turns of the drafting process thus provide an invaluable window into the meaning, promise and limitations of international codification processes and shifts our scholarly attention to these processes and their dynamics, away from our lawyerly fixation on the written text.