Preparing for War: The Making of the Geneva Conventions. Boyd van Dijk. Oxford, UK: Oxford University Press, 2022.
International humanitarian law has only appeared to be absent during recent wars in Yemen, Syria, and Ukraine, but Boyd van Dijk’s Preparing for War: The Making of the Geneva Conventions reveals that the 1949 Geneva Conventions have an enduring influence. He shows that the Conventions have retained their legal, moral, and ethical applicability through a contextualized understanding of their history.
Boyd van Dijk is currently an Oxford Martin Fellow at the Changing Global Orders program and Research Associate at Oxford University and an authoritative source on the history of international law. Preparing for War has ebullient reviews in major legal publications such as Just Security and the Journal of Conflict & Security Law as well as receiving a 2023 Certificate of Merit from the American Society of International Law.
Yet the book is also significant beyond the legal community. This is particularly true for lawyers in the national defense establishment who advise strategic-level commanders, instructors at professional military education institutions, and strategists dealing with plans and policy.
Scholars and practitioners alike tend to see the 1949 Geneva Conventions as a legal mechanism for restraining warfare. The Conventions, from this point of view, demonstrate the ability to make war more humane by limiting the kind of brutality that arose during the unprecedented destruction and atrocities of World War II. This foundation myth was promoted by many of the lawyers and diplomats who helped write the Conventions, such as the lead drafter for the International Committee of the Red Cross (ICRC or red Cross), Jean Pictet, who also edited the that organization's authoritative four-volume Commentary on the Geneva Conventions in the 1950s.
But this idealistic understanding only tells part of the story. Van Dijk argues that the construction of the Geneva Conventions meant “outlawing some forms of inhumanity while tolerating others.”[1] The drafters of the Conventions did hope to limit some wartime violence, but they also sought to use the drafting process to preserve the ability to effectively fight the next war.
Choices over which forms of violence to tolerate were highly politicized. The drafting process consisted of several international conferences beginning in 1947 and culminating with a final diplomatic conference in August 1949, held in Geneva. The result was a series of four treaties that cover the treatment of wounded and sick combatants on land and at sea, the treatment of prisoners of war, and the protection of civilians during wartime. Several Common Articles were incorporated into each of the four treaties. Together, these documents comprise the 1949 Geneva Conventions.
Most histories of the Conventions rely on the official, publicly available drafting record, which is of limited value because it is the product of what each delegation wanted the public to see. To provide deeper, unvarnished insight into national strategies and negotiating positions, van Dijk relies on declassified official documents, private papers, and collections from non-governmental organizations in eleven countries. This breadth of archival evidence allows him to piece together what happened during the drafting of the Conventions from multiple perspectives, resulting in an authoritative and exhaustive source base.
Van Dijk uses this source base to examine the efforts of the five main drafting parties—the Red Cross, United States, United Kingdom, France, and the Soviet Union—to influence the law of war on five key issues: regulation of civil and colonial wars, restrictions on air-nuclear warfare and blockade, protection of civilians and irregular fighters, and enforcement of the Conventions.
The author begins with an introductory chapter on the interwar origins of internal debates in the Red Cross and state interests in revising the Conventions. Van Dijk then devotes a chapter to each of the five key issues mentioned above. Chapter 2 examines the making of the Civilian Convention. France and the Soviet Union supported the Civilian Convention, reflecting their experiences with Nazi occupation, while the United States and Britain resisted expanding civilian protections as endangering their legal authority as occupying powers. The U.S. and UK feared that expanding protections—such as banning the death penalty for spies and saboteurs—would hinder their ability to control civilian populations in occupied territories in future wars. Ultimately, the drafters agreed to a watered-down version of the original civilian protection proposals. In what van Dijk calls a “legally strategic decision,” drafters chose to sideline the most contentious issues in favor of preserving great power support for the Convention.[2]
The third chapter explores the origins of Common Article 3, which extends legal protections to internal struggles such as civil wars and colonial conflicts. Van Dijk emphasizes the significance of this as the “first binding international legal provision in history that challenged states' absolute sovereignty in their domestic and colonial affairs for humanitarian purposes.”[3] Legal scholars and practitioners often herald Common Article 3 as a major breakthrough, but van Dijk’s analysis reveals that the drafters only agreed to the article after “tiresome negotiation” and because all the alternative options were “ignored or rejected.”[4] The result was a compromise in which colonial powers such as France and Britain ensured that the article’s language and applicability remained vague while the Red Cross took satisfaction in having extended international law to internal conflicts, even if the specifics remained unclear.
The fourth chapter examines the ambiguous legal status of irregular fighters. Much of the discussion over insurgents and partisans occurred in the context of the Prisoner of War (POW) Convention and the status of captured fighters. While Britain resisted legal restraints to its counterinsurgency campaigns, the French situation was more complicated. France wanted legal protections for its World War II resistance fighters, as the Soviets did for their own partisans, but the French also needed to preserve their own freedom of action reestablishing colonial authority in Indochina. The drafters ultimately settled on a compromise that resulted in some recognition of irregular fighters to “satisfy leaders and constituents at home” in France and the Soviet Union but only extended legal protections to “organized resistance movements” with a military hierarchy and connection to a state belligerent.[5] Consequently, most insurgent movements during the wars of decolonization remained excluded from protection.
Chapter five addresses three forms of violence that van Dijk categorizes as “indiscriminate warfare”—aerial bombing, nuclear warfare, and starvation by blockade.[6] Van Dijk shows how and why the drafters struggled to agree on limits for protecting civilians from these forms of warfare. The absence of legal restraints on bombing (including nuclear bombing) and blockade were due to the British and American delegations, which viewed these methods as key tools for maintaining the post-war balance of power against the Soviet Union. For example, during the negotiations over the Conventions, U.S. delegates leveraged its broad alliance network and effectively used procedural rules to neutralize a Soviet attempt to ban nuclear warfare. The lack of restraints on these forms of indiscriminate warfare preserved the West’s military advantages in the air and at sea against Soviet advantages in land power.
The final chapter addresses the development of mechanisms for enforcing the Conventions. Until the 1949 Geneva Conventions, international law allowed for collective punishments and reprisals, and it had typically relied on states to enforce the rules. From the 1920s onward, international lawyers tried to find other ways to enforce international law beyond relying on states. But the legal question of international enforcement often ran afoul of the political principle of state sovereignty. And this reliance on states continued after World War II due to Western and Soviet efforts to preserve their independence from international enforcement. This effort by major powers resulted in “a set of common articles that rested heavily on the will of the state,” but the reformers secured prohibitions against the use of past enforcement measures—such as the use of reprisals—that had often led to wartime atrocities. Even today, van Dijk notes, the enforcement of international law “remains the eternal headache of humanitarian law.”[7]
U.S. Army Military Police take a detainee to his cell January 11, 2001 in Camp X-Ray at Naval Base Guantanamo Bay, Cuba (U.S. Navy/PO1 Shane T. McCoy)
This headache was reinvigorated when the Bush Administration condoned the use of torture as part of a broader assertion that the Geneva Conventions did not apply to Taliban or Al Qaeda fighters. Ultimately, enforcement relied on the will of the state when the United States Supreme Court invoked Common Article 3 of the Geneva Conventions to end torture with the 2006 Hamdan v. Rumsfeld case. Enforcement is difficult enough when state parties sign on to legal agreements, but it is even more complex when states are not bound by law. The United States routinely advocates for multilateral agreements and international treaties to expand the web of rules undergirding the rules-based international order, but the U.S. is not itself legally bound by many of these agreements. The recent decision to supply cluster munitions to Ukraine highlights this tension, as the U.S. is not a party to the Oslo Declaration on Cluster Munitions. (Neither is Ukraine.)
But Preparing for War offers more than just the backstory to contemporary international legal controversies. The book reveals important insights into the relationships between law and strategy. By shaping the law to protect particular military advantages, the Convention’s drafters went beyond the typical understanding of lawfare—using law “as a substitute for traditional military means to achieve an operational objective”—by creating the very conditions for the use of certain forms of military force at the expense of others. Efforts by the United States to ensure strategic bombing and nuclear warfare were not constrained by the Conventions provide a good example of this dynamic, as does the great powers’ aversion to strengthening international enforcement mechanisms. Rather than merely using existing law, the drafters of the 1949 Geneva Conventions created new law to restrain certain forms of violence while remaining silent on others. Lawyers, policymakers, and strategists often focus on what the law says, but van Dijk’s analysis shows that the law’s silence can be even more revealing.
Van Dijk also highlights the enduring influence of the Red Cross, not only for legal or humanitarian purposes, but also as a strategic actor. Their ability to moderate great power tendencies was indispensable in knitting the Conventions together, even if the seams did not always fit neatly. The Red Cross made strategic decisions to compromise on key issues and avoid pushing too far on debate over controversial topics. Their strategy was to ensure buy-in from the great powers. In this view, incomplete or flawed laws that had a good chance of being followed were better than perfect laws that the great powers would simply ignore. Lacking the leverage to force any state party to agree or follow the Conventions, the Red Cross recognized the need to win over the great powers and make itself indispensable to the emerging legal regime.
Overall, Preparing for War powerfully demonstrates that making the law of war is a creative process driven by actors' visions of the future of warfare. Interestingly, that future, which we are now facing, looks remarkably similar to the set of challenges facing the drafters of the 1949 Conventions. The ongoing conflict in Ukraine demonstrates that the legal status of irregular fighters, the rights and duties of occupying powers, the protection of civilians and civilian infrastructure, the legal and ethical dimensions of targeting, and the consequences of indiscriminate weapons remain central to the conduct of warfare today. Practitioners and scholars alike benefit greatly from understanding why the legal structures governing these issues are in place and how they emerged in the way that they did. Van Dijk’s excellent analysis provides a comprehensive primer for that understanding.
Brian Drohan is an Associate Professor of History at the U.S. Military Academy – West Point and an officer in the U.S. Army. He is the author of Brutality in an Age of Human Rights: Activism and Counterinsurgency at the End of the British Empire and earned his PhD in history from the University of North Carolina at Chapel Hill. The views expressed are the author’s and do not reflect the official position of the U.S. Army, the Department of Defense, or the U.S. Government.
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Header Image: Geneva Conventions Signing, Geneva, Switzerland 1949 (British Red Cross via Wikimedia).
Notes:
[1] Boyd van Dijk, Preparing for War: The Making of the Geneva Conventions (Oxford, UK: Oxford University Press, 2022), 4.
[2] van Dijk, 70.
[3] van Dijk, 24.
[4] van Dijk, 101.
[5] van Dijk, 186.
[6] van Dijk, 198.
[7] van Dijk, 328.