Through the Fabric of International Law


Review of Preparing for War: The Making of the Geneva Conventions, by Boyd van Dijk

Oxford: Oxford University Press, 2022


For a long time, the theory and history of international humanitarian law (IHL) as a field by and large followed the literary style adopted by one of its leading proponents: the International Committee of the Red Cross (ICRC). As such, most interventions in this genre brought to the table a potent dose of aspirational humanitarian sentiments, tempered by technicalities imposed by the formalities of legal argument. This is not surprising, as Boyd van Dijk shows in his recent monograph on the making of the 1949 Geneva Conventions, if one considers that the “ICRC played a transformative role” in the drafting of these international treaties—and in the broader drive towards the humanization of war since the nineteenth century (10).

Indeed, since its creation, the ICRC has zealously deployed a series of “rituals of communication” to buttress its status as the guardian of the laws of war. A telling example retold in the book is that the ICRC arranged for the final signature ceremony of 1949 to be held using the same old mahogany table that had served the closure of the first Geneva Conventions in 1864 (303). The ICRC invited states to meet before this “symbolic altar of humanity,” to fulfill the nineteenth-century promise of taming the horrors of violence through the power of the law (303). Another strategy that is often employed by the ICRC is the curation of highly specialized Commentaries, which allow it to have the first word on the interpretation of the history, content, and purpose of the laws of armed conflict (4). In these ways, the ICRC and like-minded scholars had long skillfully set the tone in our collective histories of IHL.

The past two decades, however, have witnessed the rise of a series of new voices that have challenged the ICRC’s monopoly on the production of knowledge on the relationship between the law and war. Tired perhaps of the hagiographical narratives usually produced by those within or adjacent to this institution (15), the last years have witnessed interventions in the literature that have interrogated “the dark sides of virtue,” complicating the notion that law can only serve benign outcomes on the battlefield. These new perspectives have drawn from the insights and methods of political science, international relations, ethnographical accounts, political theory, and intellectual history to challenge many of the “foundational myths” erected around the ICRC or IHL. In fact, not even the moniker “international humanitarian law” has been spared, as these new perspectives have shown that this expression is of a rather recent and tenuous coinage. Echoing Voltaire’s famous quip about the Holy Roman Empire, we have now come to understand that the body of practices and knowledge we retroactively understand as IHL was, in many ways, rarely truly “international,” perhaps only selectively “humanitarian,” and at times barely “law.”

Van Dijk’s Preparing for War thus emerges at the peak of this wave of new interventions in the theory and history of IHL. As John Fabian Witt, himself a leading scholar who explored the domestic Unitedstatesean histories of the laws of war, aptly notes in the book’s blurb, van Dijk’s intervention marks “the arrival of professional [historical] research methods […] to the study of international law’s most hallowed texts: the Geneva Conventions.” Indeed, the monograph offers a painstaking reconstruction of the making of the Geneva Conventions through the eyes of five of the major drafting parties. To do so, van Dijk delves deep into the institutional archives of three leading North Atlantic Empires (the United Kingdom, the United States, and France), the ICRC, and the rising Soviet Union to showcase how drafters “had to get their hands dirty” to achieve their diplomatic and law-making agendas (13). 

In this way, he challenges the traditional master narrative put forward by the ICRC, which usually portrays the Conventions as a liberal reaction to the horrors of the second great war and the Holocaust. Instead, van Dijk suggests we should read the Conventions as forward-looking—even prefigurative—instruments that sought not only to overcome the traumas of past wars but to prepare for the imminent conflagrations to come. With the shadow of the bipolar Cold War and future campaigns of colonial counterinsurgency looming in the background, the Conventions appear less as the embodiment of the international humanitarian legal project and more as a delicate compromise between disputing imaginaries of world-ordering that claimed the mantle of humanitarianism to “reshape the fabric of the laws of war” (19).

Van Dijk’s textile metaphor, which appears again in his discussion of how the British and Unitedstatesean empires attempted to “legitimize blockade and air-nuclear power through the fabric of international law” (222), offers us a productive entry point into the making of Preparing for War. I suggest we can read the monograph as an invitation to unweave and unravel the monolithic carpet of international legal normativity. As such, the monograph offers a powerful vision of the craft of the international legal historian—a sort of retrospective weaver, insofar as she operates the loom in reverse. Van Dijk skillfully deconstructs the coherence of the quilt of the 1949 Conventions into a series of individual threads which human efforts and diplomatic incidents knitted together into a mosaic constellation. As a reader, I was reminded of Bruno Latour’s La Fabrique du Droit (in English, The Making of the Law), insofar as both interventions trace how particular voices “enter[] into the infinitely more intricate fabric” of the law.

This approach allows van Dijk to avoid the tired dichotomy between “idealist” humanitarians and “realist” statespeople that often animates the traditional master narrative (10). On this view, we are often told that the “idealists”—chief among them the ICRC itself—had a clear and coherent view of what norms were needed to be enacted in the postwar era, which were later watered down by the short-sighted demands of “realist” military operators. But the picture is much messier if, like van Dijk, one traces each strand of the skein of international humanitarian law.

The monograph reveals that humanitarian activists, including the ICRC, were quite aware of the importance of strategic diplomatic considerations to avoid jeopardizing “its delicate relationship with states” at every step of the negotiations (257, 316-7). In addition, van Dijk and others highlight that even so-called “realist” states also actively embraced—even if selectively—the discourses of humanitarianism to “reassert governmental authority.” Van Dijk’s work shows, for instance, that the Soviet Union portrayed itself as “The Great Humanitarian” as it attempted to “turn the diplomatic conference into a Cold War battleground” (201). Unsurprisingly, appeals to “humanity’s law” were rarely consistent. For example, the French pushed for a robust protection of occupied peoples at the same time they “tried to neatly distinguish between the actions of their former Nazi occupier and their own in Indochina” (129). The British and Unitedstatesean empires, in turn, claimed protection for their captured pilots as they actively enshrined the legality of mass civilian casualties through aerial nuclear warfare (198).

Overall, van Dijk’s reverse loom allows us to see that IHL’s majestic heraldic tapestry was not the work of angels but that its making “was a truly human affair”—punctuated by the confusions, miscalculations, and personal rivalries that we all experience in everyday life (13). As one navigates the threads, it becomes clear that there was no singular “humanitarianism” but a plethora of competing humanizing imaginaries “ranging from socialism to conservatism, from nationalism to Jewish internationalism” (13). 

Moreover, as van Dijk deconstructs the quilt, one can also see that sometimes some of the most acerbic disagreements came not from the disputes between states but from within the national delegations themselves. For instance, the British delegation had to harmonize divergent voices from the Home Office, the Colonial Office, and the War Office into a single tone (42), which in turn had to strike a common chord with the position of other North Atlantic powers (135). To take one example, as the negotiations progressed on the application of the Conventions in non-international conflicts, the British Labor government had to ponder whether the delegation would follow the position advocated by its civilian or military authorities. Surprisingly perhaps, the War Office had taken a less restrictive approach than the Home Office, largely due to the fear of “brutal counter-reprisals” (124). In the end, the most restrictive route, ironically set by the British civilian authorities, was chosen. 

Van Dijk’s account also reveals that at some points certain strands were knotted together by the accidental coalitions that emerged when “former adversaries became strange bedfellows at the diplomatic conference, working towards similar goals with ideologically distinct agendas” (318). The most salient example of this is France’s attempts to engage with their Soviet adversaries as “potential drafting allies” in the light of their “similar wartime experiences” as countries that faced Axis occupation (41).

More importantly, van Dijk’s reverse loom not only dissects what made it to the 1949 Conventions but also calls our attention to the threads that were removed, discarded, or forcibly torn away. The monograph, along with the new waves of scholarship on the theory and history of IHL, stresses the “contingency” and “shifting legal boundaries” of our contemporary normative arrangements (18), opening vistas into the “many roads not taken” by the drafters (10). To do so, van Dijk often had to go back further than 1939, as many of the different humanitarian normative proposals (found and lost) had deep roots in the conflicts of the wonderfully misnamed “interwar” period. Accordingly, I particularly enjoyed how the monograph engaged with the heavy weight of these interwar legacies (201), against the tendency of the invisible college of international lawyers to forget these early experiments as mere failures. 

On the topic of amnesia, van Dijk’s monograph, along with his broader work, also explores the forgotten entanglements of mid-century human rights and IHL thinking (67-70, 303). He shows that IHL did not emerge in a specialized vacuum—as one could think from reading the Commentaries—but its birth and development were entangled in a wider series of political and jurisgenerative processes which need to be rewritten into our narratives of the interplay between violence and the law.

In sum, van Dijk’s reverse-weaving provides us a much more nuanced picture of not only what was included but also of what was excluded from the fabric of the 1949 Conventions. It offers, I suggest, an illustrative template of what contemporary international legal history should look like as it brings together the lessons learned from more than two decades of rich scholarship on the relationship between comparative legal history, on the one hand, and politics, the theory and history of international law, and imperialism, on the other. In order to do so, the book’s first chapter provides a general overview of the “twisted road to Geneva.” This is followed by five substantive chapters, which reconstruct the ways in which the strings were interwoven around some crucial issues: the protection of civilians through a separate instrument; the extension of the laws of war to civil and colonial wars; the regulation of partisan fighters; the endorsement of aerial bombing and naval blockade; and the channels to enforce IHL. The monograph closes with a conclusion that maps diplomatic anxieties of the major drafting parties, reinserting “politics back into history” to engage “critically with those who have shaped humanitarian law” (333). van Dijk’s hope is that this might provide analytical clarity for those who today are still committed to the Sisyphean efforts of taming war through law, so that we might inherit the legacies of the “great humanitarians” without the “blind spots” of their agendas. Equipped with the legal historian’s reverse loom, no master narrative can pull the wool over our eyes.




Posted on 15 December 2022

DANIEL R. QUIROGA VILLAMARÍN is a Doctoral Candidate and Researcher based at the Graduate Institute of International and Development Studies (Geneva, Switzerland). He is currently a visiting Exchange Scholar at Yale University’s Department of History.