The development of the Geneva Conventions
Review of 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 “founding myth” tells the story of a global political conscience that was deeply shocked by the horrors of the Second World War, especially the Holocaust, and whose representatives were unanimously resolved to pass new laws to guarantee that such atrocities never happen again. When they met, first in Stockholm in 1948 and finally in Geneva the following year, legend has it that they were determined to craft a comprehensive set of new humanitarian laws.
This myth has been aired many times over the years, but van Dijk cleverly uncovers a different story behind the making of the Geneva Conventions. All of the delegates from 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 the midst of civil war) had experienced the war first hand as soldiers, partisans, prisoners, or civilians. Some of them, especially from the Soviet Union, France, China and the Netherlands who had endured the occupation, wanted to accept humanitarian restrictions of all kinds. But others don’t.
All the major powers were still actively waging colonial and anti-communist wars in Greece, (Indo-)China, Malaysia and Palestine, and were also very consciously preparing for new wars of colonial resistance and potential confrontation, with weapons nuclear weapons during the Cold War. The British, under the socially progressive Labor government of Prime Minister Clement Atlee, emerged as the most consistently resistant to the development of more humanitarian laws and nearly walked away. Their position is fascinating to read when, at the moment, the UK is such a champion of international humanitarian law (IHL) today.
Van Dijk carefully examines the making of civil convention, Common Article 3, rules regarding partisans and “irregular” forces, indiscriminate warfare, and the challenges of enforcement. These key areas are well-chosen, and van Dijk’s historical account expertly shows how geopolitical and humanitarian forces shaped the divides 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). It skillfully shows how all sides were simultaneously playing on different chessboards and were ready, for example, to trade something on the prisoners for a disposition on the civilians, or vice versa. The four conventions were developed at the same time and were therefore brought into play equally and interdependently in the various drafting committees. In this regard, the book offers many powerful instructive moments on the complexity and art of multilateral diplomacy.
History also presents us with an array of personalities who are busy shaping, driving and overturning the negotiations. This focus on individual negotiators gives rhythm, character and humanity to van Dijk’s narrative. We meet a range of women and men working on the front lines of law-making who have also been on the front lines of war-making. The French resistance fighter, Andrée Jacob, who so desired a preamble to the civil convention that explicitly embraced the new human rights thinking that was simultaneously developing in New York, but saw her efforts fail. Nikolay Slavin who brought the Soviets into the process relatively late but had a major impact. Jean Pictet who stimulated the ICRC team and always tried to obtain the maximum without offending 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 directs British efforts to dilute or eliminate major changes to the existing order of things. There are a lot more characters in play and van Dijk is particularly good at putting women back in their rightful place and showing how the same person can become 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 from the state of affairs in the late 1940s. history, sometimes as far back as the 18th century, to show how the philosophical, political and legal discussion of arms, prisoners, civilians, distinction and bombing developed over time to arrive in their form over the years 1940. This is an important 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.
Each page of this book is engaging and absorbing for its detail on various ethical conundrums, political interests, legal musings, and negotiation tactics. Most striking for contemporary humanitarians will probably be the deep-seated resistance to legislating for the protection of civilians, which has been shaped by a refusal to adopt a strict distinction between combatants and civilians, and a determination to retain the right to bombard broadly and without discrimination. Indeed, the Allied powers were more concerned with legislating against the use of their POWs as human shields in aerial bombardments than with protecting the hundreds of thousands of enemy civilians from bombardment. Van Dijk quotes a note from the British Foreign Office at the time: “all the great powers intend to bomb centers of civilian population if it suits them”.
Attempts to ban nuclear weapons and indiscriminate aerial bombardment were firmly deflected by arguments that it was not the business of the Red Cross but more appropriate to Hague law and the new United Nations. These machinations were tactical maneuvers, not political ones, but they created a new myth that The Hague manufactures weapons and Geneva victims. But it didn’t have to be that way in 1949 and wasn’t understood that way until the negotiations made it that way.
Although several delegates were determined to protect detainees following their personal experiences of detention and torture by the Gestapo, the UK insisted that laws on the internment and detention of civilians should be weak so they could lock up and “mentally torture” people in colonial rebellions. The United Kingdom, the Soviet Union and finally the French wanted no infringement of their power of detention en masse – certainly not in the context of wars on their territories. A consensus was also held on the use of blockade and starvation as a method of warfare. The security dilemma was also at stake here, as rival powers expected another world war and did not hesitate to inflict enormous suffering on enemy civilians.
Thus, as van Dijk shows, civilians emerge with very little to protect them from their primary risk of death. There is a limited idea of ”safe areas” and the provision of limited aid and relief, especially in occupied territories, but the conventions are completely silent on methods of mass starvation and indiscriminate bombardment. The distinction between civilian and combatant was neither assumed nor endorsed. This is not the great moral and legal victory relayed in the following decades by the great founding myth of the Conventions. Such huge omissions would not begin to be corrected until the Additional Protocols of 1977.
The chapter on supporters and resisters shows how there was major disagreement here too. States that have experienced occupation and resistance such as France, Italy, the Soviet Union and the Netherlands are in favor of recognizing irregular combatants and detaining them with respect instead of adopting the traditional practice summary executions and reprisals. But the United States and the United Kingdom have accused them of seeing the war only through “the eyes of defeat” as occupied rather than occupiers. They argued that such recognition of the resistance would only “encourage rebellion” in colonies around the world. Faced with impending uprisings in Algeria and the ongoing colonial war in Indochina, the French quickly hardened their line and the deal was rigged accordingly.
Negotiations on enforcement mechanisms are equally fascinating, as van Dijk explains the deep reluctance of key states to use the Nuremberg language of ‘war crimes’ or set up a permanent inspection body and criminal court. permed. This reluctance runs counter to the ambition of several other States and of the ICRC. In the end, another toothless compromise was reached when a meeting of four international lawyers convened by the ICRC came across the phrase “grave breaches”. The conference then agreed on the famous list of art. 147, which notoriously omits rape and leaves room for widespread shelling and displacement with the phrase “mass destruction and appropriation of property, not justified by military necessity.”
Virtually every major power rejected the idea of a new international inspection body and permanent tribunal that could be part of the emerging United Nations or be built independently in some way. The wavering of these ideas prompted most States to support the ICRC in this role of inspection. The Swiss organization has therefore imposed itself as the soft option that can be easily manipulated and refused in practice, as opposed to a multilateral body which could become politically complicated. The conference also opted for law enforcement primarily through national regulations.
The final chapter examines how the Geneva Conventions were heralded by Switzerland as a historic breakthrough. This Swiss “propaganda” view gave the impression that the Conventions were a whole new set of protections for people in times of war. Many articles of the Conventions represented major advances in international legal theory and humanitarian standards. But, at the same time, the protection gaps deliberately left open by war-inclined negotiators in Geneva were ‘obviously flawed’, according to 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 more cruel and deadly than ever.
This excellent and captivating book shows us that the making of IHL is always highly dependent on political interests and the specific dynamics of negotiations. The laws of war in place at any given time in history are simply an accumulation of what was politically desirable and legally possible when negotiations ceased. Boyd Van Dijk’s account of the making of the Geneva Conventions is now 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 art of his restraint.