Symposium on Boyd van Dijk’s Preparing for War: Boyd van Dijk’s Response

[Boyd van Dijk is a McKenzie Fellow at the University of Melbourne.]

The paradox of writing a book about the laws of war is that you never wish it to become timely. Today, however, with the ongoing brutality in Ukraine and Yemen, we are going through a dark time again. The Geneva Conventions are hitting the headlines every day. The study of international humanitarian law (IHL) is also experiencing a renaissance, triggered by the rise of a new generation of critical legal scholarship, and because of a revival of US interest in the matter since the onset of the ‘War on Terror.’ The historicizing moment in international law has created unprecedented space for new interdisciplinary approaches, including the study of the making of the Geneva Conventions – i.e., Preparing for War. 

I want to thank Karin Loevy, Doreen Lustig, Eyal Benvenisti, Katharine Fortin, and Andrew Clapham for their masterful and generous reviews, and Alonso Gurmendi for both organizing the roundtable and insightfully reviewing my book. These contributors have done an impressive job. Among other achievements, they have rigorously engaged with the book’s analysis, raised fascinating questions, shared incisive comments, contextualized my book, and identified various points for discussion. I cannot be more grateful for their perceptive reading of my work – and even more so in light of today’s challenges caused by the pandemic, and I hope to continue our conversation in the future. 

In this short response, I want to concentrate on three points and build upon the ideas as shared by the reviewers by returning to Geneva’s spectacle. As noted by Loevy, it – the making of the Geneva Conventions of 1949 – represents one of the most remarkable moments in the history of international law, with its breathtaking ambition of humanizing warfare on a truly international scale. And it took place in a uniquely hostile geopolitical environment, with old wars ending, new wars starting, and preparations for future wars ongoing. 

I am unable to address all of the contributors’ questions, and I cannot do full justice to their incisive thinking. But I will try to focus on three issues based on their different observations: clarifying the book’s overarching goals, engaging with the question of the state in (the study of) global politics, and identifying potential avenues for further research, as suggested by Fortin.   

Starting with the first issue, I am glad to hear that virtually every reviewer recognized the value of some of my book’s myth-busting interventions. In my book, as noted by Benvenisti, I present a different story of the Conventions’ past than is usual in the field of mainstream humanitarian law.

In the book I do not emphasize the impact of the Battle of Solferino, or the role of Jean Pictet as the so-called principal architect of the Conventions, nor even the atrocities of the Second World War, for that matter. My overarching objective, as highlighted by Gurmendi in his contribution, was to historicize the Conventions by analyzing their paradoxes, contradictions, and puzzles through a meticulous archival reconstruction. 

Fortin is right to say that I wanted to elucidate how drafters – especially the survivors of Axis rule in Asia and Europe – often wore different “hats at the same time”: as victims of war, as liberators of occupied areas, and/or as oppressors of other peoples’ aspirations under conditions of racial rule. The book shows these entangled relations among and between conceptions of race, rights, humanity, empire, sovereignty, and global ordering. I wished to problematize existing narratives and create new ones in order to rewrite Geneva’s story. 

In this way, I hoped to enable readers to better understand the past and politics of humanitarian law, with its puzzling attitude towards the idea of humanity in war. As mentioned by Loevy and Fortin, my goal was not to suggest that the past mattered less or not at all – and here I seem to diverge from Benvenisti’s analysis, but to create greater analytical space for thinking about the usages of the past and future in humanizing warfare. Lustig’s inference that I do not completely exclude the past is both accurate and analytically important. 

Making the Conventions was not only a question of imagining the future of warfare and the place of law and humanity in it, as I emphasize throughout the book, but also one of deciding which competing pasts mattered most. Some historical experiences (see Gurmendi’s comment on the lack of international legal impact of the 1906 Bud Dajo Massacre) were marginalized or even suppressed, whereas others gained a central place in IHL’s collective memory. One crucial task of historians of international law is to explain the logics and structures behind the creation of such new legal imaginations, of renewed versions of brutality restrained.  

I share Clapham’s fascination for contingency and Geneva’s non-history, i.e., those radical ideas which did not make it into law. We can learn as much from reconstructing the history of accepted provisions as of those rejected and ignored by the drafters. 

Geneva’s historical trajectory could have been drawn differently. It could have protected the state’s own nationals. It could have mentioned the category of stateless persons – one of the greatest victims of twentieth-century warfare – in the Civilian Convention. It could have rigorously applied humanitarian legal principles to the domain of air bombing. It could have spoken out against the destructive character of nuclear warfare. And it could have outlawed the use of starvation as a weapon of warfare. But Geneva did none of that. 

Echoing Loevy’s remark, I believe writing non-history is arguably as historically significant as reconstructing the making of accepted provisions, at least for rewriting histories of lawmaking processes and revealing war-making legal imaginations. The ‘non-linear journeys’ of international law, to quote Fortin, are truly fascinating and require genealogical legal study. And it is precisely for that reason that I devote so much attention to the miraculous, and nearly fatal, efforts to invent the Civilian Convention and Common Article 3, now widely seen as the two most innovative outcomes of this decades-long drafting process. 

The second issue I want to highlight concerns Lustig’s question on the role of the state and its interests from the perspective of international relations. She makes an important point that some parts of my work appear to echo realist approaches to international relations – in concentrating on the role of the Great Powers, in emphasizing the impact of state interests, and so on. 

At the same time, she is careful not to characterize me as the new Mearsheimer of humanitarian law, foregrounding the ways in which I emphasize the elasticity, if not malleability, of state interests. She also rightly makes note of my recurring tendency to break apart the so-called unitary position of states by highlighting the formative character of internal divisions, and how these eventually shaped their Geneva’s legal views, an approach inspired by Isabel Hull’s innovative scholarship on the laws of war during World War I. 

Even though I am trained as an historian of Nazi occupation and international history, I am also a former student of political science. I feel most affinity with constructivist approaches to international relations. While it is true that the Great Powers play a crucial role in the book’s structure, I also devote plenty of space to the impact of smaller (non-)state actors, such as the World Jewish Congress. Their proposals to humanize warfare are placed front and center, just as the book recognizes the impact of law on restraining power, and vice versa. 

Ultimately, I believe that the character of (state) interests in lawmaking process, or those of state-oriented organizations such as the ICRC, tend to evolve as a result of changing self-identifications of actors themselves, and because of greater structural phenomena within the international system as a whole (e.g. the outbreak of new wars, and so on). 

The third and last point I want to highlight concerns potentially new avenues for further research, as suggested by Fortin herself. She is understandably curious to know more about the role of states other than the Great Powers in shaping, for instance, the making of Common Article 3, and what views those states held regarding the question of legal personality. 

Focusing on the first point: as a national of a small state, I am the last one to claim that the perspectives of the lesser giants of global politics are analytically irrelevant. 

To the contrary, I have collected materials from archives in Ireland, the Low Countries, Ukraine, New Zealand, Australia, Israel, and Switzerland to get a better sense of their perceptions of Great Power lawmaking (see the Dutch critique of the Anglo-American security clause), how they reshaped the drafting process through innovative idea-making (see the crucial role of Mouton), how they positioned themselves strategically around a Great Power-dominated drafting table (see the Swiss), what their self-perceptions were like (see the role of smaller and formerly occupied colonial powers), and what insights we can draw from all this. 

In some situations, I was unable to discover a detailed paper trial of the role of smaller states in shaping the making of Common Article 3, to remain focused on Fortin’s example. As I write in the book, smaller states (including today’s geopolitical giant China) had fewer resources. Unlike most of the Great Powers, they could not attend every session and had to focus their limited drafting capacity to those debates they considered of crucial importance. Perhaps surprisingly, they did not always consider Common Article 3 as a top priority, and they sometimes focused their energy on topics we might find less important now (see the Vatican’s obsession with maintaining a reference to the law’s so-called divine origins).

In other cases, I was unable to read or access materials because some states lacked a tradition of democratic archival accountability – think of Fortin’s reference to authoritarian Burma, or due to my own linguistic deficiencies. And I hope that her encouragement to look further and beyond the role of my select group of case studies will be heard among scholars of Italian, Greek, Chinese, and Latin American histories of global legal politics. 

I close by returning to the contributors’ shared recognition that we should not just be grateful that the Conventions exist today. Indeed, echoing Clapham’s dictum, it is crucial that we remain alert to the incomplete, if not paradoxical, character of international law in wartime and look for opportunities to realize a more peaceful future.