Reviewing Boyd van Dijk, Preparing for War: The Making of the Geneva Conventions (Oxford: Oxford University Press, 2022).
Boyd van Dijk has written a superb political and legal history of the making of the four Geneva Conventions of 1949. From the outset, he deliberately shows how the “received master narrative” about the making of the Geneva Conventions is idealized and misleading. This “foundation myth” tells a story of a global political conscience that was deeply shocked by the horrors of World War Two, especially the Holocaust, and whose representatives were unanimously resolved to agree new laws to ensure that such atrocities never happen again. When they met, first in Stockholm in 1948 and finally in Geneva the year after, legend has it that they were determined to make a comprehensive set of new humanitarian laws.
This myth has been circulated repeatedly over the years, but van Dijk skillfully uncovers a different story behind the making of the Geneva Conventions. All the delegates of the 64 states involved (during the negotiations much of the world was still living under western and Soviet imperial rule, and China was still a contested state in full-on civil war) had experienced war firsthand as soldiers, partisans, prisoners, or civilians. Some of them, especially from the Soviet Union, France, China, and The Netherlands who had endured occupation, wanted to agree to wide-ranging humanitarian restraints of various kinds. But others did not.
All the Great Powers were still actively fighting colonial and anti-communist wars in Greece, (Indo-)China, Malaya, and Palestine, and were also very consciously preparing for further colonial resistance wars and a potential confrontation, with nuclear weapons, during the Cold War. The British, under Prime Minister Clement Atlee’s socially progressive Labour government, emerged as the most consistently resistant to more humanitarian law making, and almost walked away. Their position makes fascinating reading when, for the moment, the United Kingdom is such a champion of International Humanitarian Law (IHL) today.
Van Dijk carefully examines the making of the civilian convention, Common Article 3, the rules around partisans and “irregular” forces, indiscriminate warfare, and enforcement challenges. These key areas are well chosen and van Dijk’s historical account expertly shows how geopolitical and humanitarian forces shaped chasms of opinion at the negotiating table, as well as the range of different perspectives that emerged between individuals, states, and the International Committee of the Red Cross (ICRC). He deftly shows how all parties were playing simultaneously on different chess boards and were ready, for example, to trade something about prisoners for a provision on civilians, or vice versa. All four conventions were being shaped at the same time and so were equally and interdependently up for grabs in the various drafting committees. In this respect, the book offers many powerful teachable moments on the complexity and art of multilateral diplomacy.
The story also introduces us to a range of personalities who are busy shaping, driving, and subverting the negotiations. This focus on individual negotiators gives pace, character, and humanity to van Dijk’s account. We meet a range of women and men working at the frontline of law making who have also been at the front line of war making. French resistance fighter, Andrée Jacob, who so wanted a Preamble to the civilian convention that explicitly embraced the new human rights thinking that was being simultaneously developed in New York, but saw her efforts fail. Nikolay Slavin who brought the Soviets to the process relatively late but had a major impact. Jean Pictet who spurred on the ICRC team and was always trying for as much as he could get without crossing the Americans or diminishing the prestige of his own organization. Parmeshwar Narayan Haksar makes his first appearance for India on the international stage, and Robert Craigie clumsily leads British efforts to dilute or eliminate major changes to the existing order of things. There are many more characters in play and van Dijk is especially good at restoring women’s contributions to their rightful place, and showing how the same person can emerge as a bridge builder on one issue and a spoiler on another.
One of the most valuable aspects of van Djik’s approach is that he does not simply start with the state of play in the late 1940s. Instead, on each main issue he tracks back in history, sometimes to the eighteenth century, to show how philosophical, political, and legal discussion of weapons, prisoners, civilians, distinction, and bombardment had developed over time to arrive in their 1940s form. This is a significant historical contribution in itself and also means that the reader approaches each issue with a 1940s mindset, just as the negotiators themselves would have done.
Every page of this book is interesting and absorbing for its detail on various ethical conundrums, political interests, legal thinking, and negotiating tactics. Most striking to contemporary humanitarians probably will be the deep resistance to legislating for the protection of civilians that was shaped by a refusal to embrace a strict distinction between combatants and civilians, and a determination to retain the right to bomb widely and indiscriminately. Indeed, the Allied powers were more anxious to legislate against their prisoners of war being used as human shields during aerial bombing than they were to protect the hundreds of thousands of enemy civilians from being bombed. Van Dijk quotes one U.K. Foreign Office memo from the time: “all the Great Powers intend to bomb civilian centres of population if it suits them.”
Attempts to outlaw nuclear weapons and indiscriminate aerial bombing were firmly deflected by arguments that this was not Red Cross business but more appropriate to Hague Law and the new United Nations. These machinations represented tactical maneuvering, not policy, but it created a new myth that the Hague does weapons and Geneva does victims. But it need not have been so in 1949 and was not understood that way until negotiations made it so.
Despite several delegates being determined to protect detainees as a result of their personal experiences being detained and tortured by the Gestapo, the United Kingdom was insistent that laws on civilian internment and detention should be weak so they could lock up and “mentally torture” people in colonial rebellions. The United Kingdom, Soviet Union, and ultimately the French wanted no infringements on their power to detain en masse – certainly not in the context of wars within their territories. Consensus also held on the use of blockade and starvation as a method of war. The security dilemma was at play here too as rival powers expected another global war and had no hesitation to impose huge suffering on enemy civilians.
So, as van Dijk shows, civilians emerge with very little to protect them from their major risks of death. There is a limited idea of “safety zones” and the provision of limited aid and relief, especially in Occupied Territory, but the Conventions are completely silent on the mass killing methods of starvation and indiscriminate bombardment. Distinction between civilian and combatant was neither assumed nor endorsed. This is not the great moral and legal victory relayed down the subsequent decades in the great foundation myth about the Conventions. Such huge omissions would only begin to be put right in the Additional Protocols of 1977.
The chapter on partisans and resistance fighters shows how there was major disagreement here too. States who had known occupation and resistance like France, Italy, the Soviet Union, and the Netherlands were in favour of recognizing irregular fighters and detaining them with respect instead of adopting the traditional practice of summary execution and reprisal. But the United States and United Kingdom accused them of seeing war only through “the eyes of defeat” as the occupied rather than the occupiers. They argued that such recognition of resistance would only “encourage rebellion” in colonies around the world. Faced with imminent uprisings in Algeria and ongoing colonial war in Indochina, the French soon hardened their line and the matter was fudged accordingly.
The negotiations on enforcement mechanisms are equally fascinating, as van Dijk explains the profound reluctance of key states to use the Nuremburg language of “war crimes” or set up a permanent inspection body and a standing criminal court. This reluctance clashed head on with the ambition of several other states and the ICRC. In the end, another toothless compromise was reached when a meeting of four international lawyers convened by the ICRC fell upon the phrase “grave breaches.” The conference then agreed the famous list in Art. 147, which notoriously omits rape and leaves room for widespread area bombing and displacement with the phrase “extensive destruction and appropriation of property, not justified by military necessity.”
Virtually all Great Powers refused the idea of a new international inspection body and a permanent court that might be part of the emerging United Nations or independently constructed in some way. The floating of these ideas made most states rush to support the ICRC in this inspection role. The Swiss organization therefore emerged as the soft option that could be easily manipulated and refused in practice in contrast to a multilateral body which could become politically complicated. The conference also opted for legal enforcement primarily by domestic regulation.
The last chapter examines how the Geneva Conventions were trumpeted by Switzerland as a historic breakthrough. This Swiss “propagandist” view gave an impression of the Conventions as a new raft of comprehensive protections for people in war. Many articles in the Conventions did represent major advances in international legal theory and humanitarian norms. But, at the same time, the gaps in protection deliberately left open by the war-prone negotiators at Geneva were striking in their “obvious defects,” according to the former Hungarian resistance fighter Anna Kara, and many states were slow to ratify. The wars that followed in Korea, Algeria, and Vietnam, and the hell of the Soviet Gulag, proved that war and resistance were as cruel and deadly as ever.
This excellent and engaging book shows us that the making of IHL is always highly contingent on political interests and the particular dynamics of negotiations. The laws of war in place at any particular moment in history are simply an accumulation of what was politically desirable and legally possible when the negotiations stopped. Boyd Van Dijk’s account of the making of the Geneva Conventions now stands as the most authoritative, and it should be widely read by humanitarian, military, legal, and diplomatic professionals who are engaged in the art of war and the patient craft of its restraint.