28 Apr Symposium on Boyd van Dijk’s Preparing for War: Preparing for War – Demythologising the Post WWII Years and Charting the Untraveled Paths of CA3
[Katharine Fortin is an Associate Professor at the Netherlands Institute of Human Rights, Utrecht University. She is the founder and co-editor of the Armed Groups and International Law blog.]
The author is grateful to comments from Brianne McGonigle Leyh and Vivek Bhatt on an earlier draft of this post.
Reading Boyd van Dijk’s Preparing for War at a time when the prospect of a third world war feels much too close for comfort, was a fascinating and unsettling experience. The book brings to light the drafting history of some of the key legal provisions of the Geneva Conventions (e.g. the law on irregular forces, nuclear bans, air warfare), which have recently been thrust into the limelight in Ukraine. It also forced some adjustments to my view of the rare moment of collective humanitarianism after the Second World War, where rights were given priority over sovereignty and nations committed to peace. In this post, I will elaborate on a few aspects of van Dijk’s work that I found particularly valuable, demonstrating some of the huge achievements of his project and also identifying a few areas where I would have liked a bit more detail. I will end by a short reflection on how the book challenges the ‘received master narrative of the making of the 1949 Geneva Conventions’ and encourages a train of critical thought on their history (p. 1).
Bringing the Humans Behind the Drafting to the Front
I start by making some concrete comments on chapter 3 which focuses on common Article 3. Scholars interested in the history of common Article 3 have been spoiled, in recent years, by the fascinating insights contained in Mantilla’s recent monograph, the ICRC’s 2020 commentary on common Article 3 and Greenman’s article in the Melbourne Journal of International Law. It is testament to van Dijk’s extensive and meticulous archival research, that he manages to uncover further details regarding the genealogy of the article. Like Mantilla’s recent monograph, van Dijk’s research takes the reader into the back rooms and in-trays of the drafting delegations. His book uncovers complexities and elucidates in equal measure. He exposes disagreement not only between delegations, but also within delegations. He uncovers the motivations and details behind the shifting positions displayed in the records of the Diplomatic Conference and exposes attempts at backroom deal-making. In bringing these documents to light, van Dijk certainly achieves what he set out to do. He brings to the foreground ‘the humans behind the drafting, putting their agency front and centre, emphasizing how they had to constantly redefine their ideas, their beliefs, and the boundaries of their roles’ (p. 13).
A Non-linear Journey
It is truly remarkable to see (again) the non-linear journey of the text of common Article 3. Van Dijk skillfully shows how the various suggested earlier texts of common Article 3 were debated, discarded, re-drafted, and discarded again, before the final draft was finally adopted by secret vote. Rather than spending the last months of the Diplomatic Conference hammering out the details of a nearly agreed text, the drafters continued flip-flopping between completely different texts right up until the last minute; each text signifying different philosophies and approaches to the regulation of non-international armed conflict.
There are many important details in van Dijk’s detailed account that add to our understanding of common Article 3. In particular, van Dijk makes a specific effort to explain how the wave of decolonization set in motion by the Second World War fed into and shaped different State’s attitudes to proposals to regulate internal violence. Adding layers of detail invisible to the readers of the travaux préparatoires, he shows, for example, that although the Soviet Union actively supported humanitarian proposals, they may not have done so for humanitarian reasons (p. 127). Likewise, he confirms that some States – like the UK – deliberately pursued ‘studied vagueness’ on the treaty text (p. 116) in order to leave room for arguing that the texts did not apply later. He also describes the UK and France brokering an informal backroom deal designed to achieve the provisions’ deletion (p. 125). While many of these details are also present in Mantilla’s earlier account, it is notable that the two authors regularly rely on different documents to bring the story to life and tell the story in different ways.
Common Article 3: Paths Un-travelled
In many ways, van Dijk’s work on common Article 3 shows us what a miracle it is that the article exists at all today. It shows us that we can celebrate the fact that common Article 3 ended up being a full article, and not just a vague reference to humanitarian principles. It is a good thing that common Article 3 does not contain the conditional reciprocity clause (indicating that it will only be applied when both parties act in obedience to it) that was included in the 1947 draft and the 1948 Stockholm draft. We can be glad that the final draft does not contain the high threshold requirement in the form of an ‘organisation requirement’ included in the First Working Party text of 1949. That we did not end up with the Soviet text applying all the provisions of the Geneva Conventions to non-international armed conflict is also in my view fortunate, because armed non State actors would hardly ever have been able to adhere to them. Finally, and most significantly, we can be relieved that the text did not get entirely deleted. By showing the multiple paths untraveled, van Dijk demonstrates what an achievement common Article 3 was and remains today, compared to the alternative texts and approaches that were on the table.
Common Article 3: What Was Not Discussed?
In light of the high level of detail in van Dijk’s work, it is interesting to identify the issues relating to common Article 3 which it suggests were not much discussed behind closed doors. The main one is the thorny legal question of how armed groups were to be bound by this provision as a matter of law and the nature of their legal personality. This is a legal puzzle of some magnitude on which much ink has been spilt in legal literature (see here, here, here). Greenman’s recent article on the origins of common Article 3 has shown that as early as 1950, it was called ‘a heresy’, ‘revolutionary’ and ‘unconceivable from a legal point of view’. She highlights that the ICRC explained in an early analysis that it was ‘remarkable that the Geneva Conference was able to agree a text’ because one of the ‘principal difficulties’ was the ‘impossibility, from a legal point of view’ of binding armed groups ‘to Conventions as non States and non signatories’. We do not hear in van Dijk’s work whether there were any further discussions of this question in the backrooms and in-trays of the drafting delegations that he consulted. The fact that armed groups would be bound was clearly controversial, but apparently not the legal mechanics of how they to be bound. It would be interesting to hear whether van Dijk’s archival research sheds any further light on this question.
More Work to Be Done?
Like all the best books, van Dijk’s book raises a number of questions in the mind of the reader and identifies avenues for further research and analysis. While the book focuses on the UK, French, US, Soviet Union and ICRC delegations, its methodology raises curiosity about what was going on in the other delegations’ back rooms. His work also shows that many other States played key roles in the drafting of common Article 3, for example, Greece, China, Italy, Burma and Switzerland – to name just a few. Of course, it would have been impossible for van Dijk to have covered every drafting delegation, but his focus on only five delegations points to the fact that there is plenty of scope for more studies, revealing different States’ attitudes and backroom manoeuvres. It would also be valuable to see more explicit analysis of the inter-State dynamics and diplomatic ‘moves’ and ‘plays’ that van Dijk’s research uncovers. There is so much richness in this study on the topic of negotiation, I can’t help but wonder whether there might be scope for a companion piece/article of explicit analysis (e.g. on bargaining or negotiation) to identify and make better sense of the behaviours, patterns and strategies that defined the negotiations.
Demythologizing the Post WWII Years
I will end this post by addressing the book’s contribution in a more general sense. Reading van Dijk’s book against the backdrop of nuclear threats against NATO countries from Putin was an unsettling and thought-provoking experience. The prospect of a third World War seemed real, and as I read van Dijk’s work, there was a voice in my head saying ‘is this really all going to happen again?’ Yet, at the same time I was also struck by the book’s message that we should not become nostalgic about the past and exaggerate the wisdom possessed by the drafters of the Geneva Conventions. One of the more overarching purposes of van Dijk’s book is rightly to challenge the inaccuracy of the ‘received master narrative of the making of the 1949 Geneva Conventions’ (p. 1).
According to this master narrative, so well known (and even well-loved) by most international lawyers, the moment right after the Second World War was a Grotian ‘never again’ moment, of nearly mythical proportions (see for example, Scharf). The horrors of the world war forced States to reimagine the international legal order and forge the UN Charter, the Universal Declaration of Human Rights, the Geneva Conventions, the Charter of the International Military Tribunal and the Geneva Conventions.
Van Dijk’s book seeks to adjust that master narrative by showing that the drafting process of the Geneva Conventions was not only dominated by humanitarian impulses. Indeed, it may seem puzzling that a book studying the drafting of the Conventions is called ‘Preparing for War’. I’m guessing the choice of title reflects van Dijk’s objective to show that these final four years of the 1940s were very far from being a pause in war-brokering, war-thinking or war-strategizing. His argument is that in the years during which the Geneva Conventions were drafted, many of the States whom the drafters represented were ‘armed to the teeth’ (p. 6) and the world was already racing forward into a future dominated by the Cold War, decolonization struggles, and the fall of European empires. His work emphasizes time and time again that the drafting process was as much defined by the past, as the future. In a similar vein, he shows how many of the drafting delegations were often wearing two hats at the same time: simultaneously victims of armed conflict and suppressors of others’ rights. When the first memo for the Geneva Conventions was circulated by the ICRC in February 1945, Dresden was being burned to ashes by Allied incendiary bombs. Equally, the drafting parties were shaping the conventions against the backdrop of the ongoing violence in Palestine, Indochina, Indonesia and Greece around 1947.
Van Dijk’s challenging of this master narrative is timely, particularly when read against the backdrop of current armed conflicts in so many countries, including Ukraine, Syria, Yemen and Ethiopia. The book encourages a train of critical thought that is helpful, when reflecting on where we are, and how we got here. The themes it explores also connects well with the works of other (emerging) critical voices on international humanitarian law (see here, here and here). It invites us to consider how the story or images of different bodies of law are constructed, stage-managed and live in the wider world and in (legal) imaginations, over time. It asks us to question whether these stories are reflective of their origins (and wonder whether that matters). It shows us the importance of challenging tendencies to over-mythologize the post-WWII years as a universal never-again moment. It requires us to re-ask the old question: ‘how humanitarian is international humanitarian law’?
Ultimately, van Dijk’s research shows that despite the famously protective scope of the treaties that have come to be collectively known as ‘Geneva Law’, their drafters walked the same uncomfortable tightrope that international humanitarian law itself always walks, painfully mediating between realism and idealism, military necessity and humanity, sovereignty and individual rights. Reading the book in these troubled times, reminds us that we should not only be grateful that these documents exist but that we should not take their existence for granted. Indeed, when it is appreciated that they were forged by States not only seeking to prevent a repeat of the horrors second World War but also ‘preparing for war’, the fact of their existence is even more of an achievement.
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