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]
