Boyd van Dijk, Preparing for War. The Making of the Geneva Conventions, OUP 2022
Hugo Slim, Solferino 21. Warfare, Civilians and Humanitarians in the Twenty-First Century, Hurst 2022
The great battle of Solferino in northern Italy in 1859, resulting in the victory of the Franco-Sardinian Alliance over the Austrian Empire, was a traditional, old school 19th century military confrontation with heavy losses on both sides. When Henry Dunant, a Swiss businessman, visited the battlefield in the aftermath of the cruel fighting he was so shocked that he wrote his famous book A Memory of Solferino (1861) which, in turn, prompted the creation of the International Committee of the Red Cross (ICRC). In Solferino 21, Hugo Slim, himself an experienced humanitarian practitioner and academic, takes Dunant’s book – “an almost sacred text” (Slim, xxiv) in the humanitarian community – as starting point and inspiration to critically assess the humanitarian development and landscape in the 21st century. He divides his analysis in three parts: the development of warfare from Solferino until today (pp. 3-96), suffering and protection of civilians (97-156) and the humanitarian system as such (157-246).
Boyd van Dijk, a history and political science scholar who recently moved to Nuffield College at Oxford University, also refers to Dunant’s work but only en passant and as a sort of starting point of his critical analysis and profound deconstruction of the foundational myth of the 1949 (Four) Geneva Conventions (GC I-IV) as a liberal humanitarian project and an answer to “war’s appalling brutality” at Solferino and beyond (pp. 2, 29). This mythic narrative, which has its origins essentially in the writings of the Geneva drafters themselves (for example ICRC legal expert Jean Pictet, editor of the highly influential ‘official’ ICRC Commentary published between 1952 and 1959) and has been largely adopted by current scholarship (summarizing pp. 14-19), constitutes a highly subjective and self-referential account with several shortcomings and blind spots (pp. 3-4). Against this background van Dijk tells not just a different but, in a way, a completely opposite story, turning the official and mainstream narrative upside down. In a nutshell, van Dijk convincingly shows that the final text of the GC was the product of a complex blend of different, but partially overlapping interests of the major powers (United States of America [US], United Kingdom [UK], France and Soviet Union [SU]), with the ICRC as an important actor in between them, and with the US and UK generally taking a more restrictive position than France, the SU and the ICRC in terms of the protective (prohibitive) scope of the future International Humanitarian Law (IHL). Many of the interests at stake were neither liberal nor humanitarian but a product of mere Realpolitik and political struggles influenced by the personal (WW II) experiences of the negotiators, the geopolitical context, the emerging cold war and the ongoing colonial conflicts (pp. 4 ff., 309 ff., 321). In fact, as to the latter, one needs to recall that large parts of the world were still under western and Soviet rule with China in a full-fledged civil war. Van Dijk pretends to be “sensitive to the law’s imperial origin” and “resonates with a broader trend within postcolonial legal studies, which is concerned to analyse international law’s imbrication with European imperial expansion.” (p. 17). The full argument is laid out in great detail in six chapters which deserve to be looked at more closely if only for a summary and systematisation of the many details and differences, even within the same negotiating delegations, of which the reader easily loses track.
In methodological terms, van Dijk focuses, besides the ICRC, on the four major powers already mentioned (“to a lesser extent” on the SU, p. 19), more specifically, on the perspective of the concrete negotiators (“from below”) and reconstructs their positions, interests, dilemmas etc. on the basis of an unprecedent analysis of ICRC files and State archives (pp. 19 ff). As van Dijk is fully aware of the limits of these sources in terms of their accuracy and completeness he contrasts the official records with hitherto unknown sources, including internal reports of ICRC delegates and recently declassified documents, in sum “multilingual archival materials” of predominantly Western but also Soviet origin and from both State and private archives and collections (p. 24). This use of (new sources) makes the study “the most authoritative” so far.
In Slim’s analysis, warfare “stood at a pivotal moment of technological change” at the time of the battle of Solferino as it does today (p. xxviii). While back then a new era of industrial warfare and a new arms race was beginning to start, today we are facing a move from industrial to computerized, high tech war with an increasingly important role for so-called artificial intelligence. Somewhat surprisingly perhaps, given the recent wars in Afghanistan, Syria and still ongoing in Yemen, Tigray (Ethiopia) and Ukraine, Slim argues that “war in the twenty-first century has not yet been as horrendous in scale and intensity as war in the twentieth century …” (p. 6). Clearly, as shown in van Dijk’s Chapter 5 (pp. 197 ff.), indiscriminate warfare in full disregard of the principle of distinction, only subsequently codified and recognized as part of custom, has been the rule right up to the 1949 GC and well beyond, with the Civilian Convention (GC IV) remaining largely ineffective. We will return to that below.
At any rate, war today is a reality and often also part of policy as it was in the past with political descriptions capturing much better the motivations and incentives of the warring parties than the applicable legal concepts. Slim lists a series of kinds of war (pp. 12 ff.) – absolute, instrumental, agonistic wars, wars of choice and survival, asymmetric and peer-to-peer wars, supremacist identity, ideological revolutionary, self-determination and liberation, hegemonic contest wars, UN wars of protection and state-building – which reflect the history of warfare in the last two centuries and help us to better understand the military and operational forms of warfare we witness today. In this regard, Slim identifies “ten characteristics of war today” (pp. 17 ff.) – militarily small wars, religious wars with a Muslim geography, internationalized civil wars of armed groups and coalitions, urban warfare, long war, chronic political violence, computerized warfare, sub-threshold and hybrid war, hyperlegal warfare as well as public participation in war –, arguing that these characteristics “have made up the normal operation setting of war, civilian survival and humanitarian response” up to now (p. 57). Of course, these characteristics cannot always be precisely distinguished and they may co-exist in one war at the same time. Surely, both in militarily small (counterinsurgency) wars (Vietnam, Colombia, Syria, Mali) and bigger/longer wars (Yemen, Ukraine) computerized and hyperlegal warfare, hybridity and public participation (especially via social networks) play an important role.
More importantly, however, some of these characteristics – the more modern ones – already bear the fruit of the “next-generation warfare” (pp. 59 ff.) which seems to be Slim’s main concern. Here he sees three major trends: the possibility of big war spread across new domains; intensified computerized warfare with the ensuing ethical challenges around the use of artificial intelligence; and warfare fought out in the context of interrelated megatrends like climate change, urbanization and infectious disease (p. 59). As to the role of artificial intelligence in computerized warfare (pp. 67 ff.) he identifies three main issues (pp. 78 ff.): judgment (e.g. applying the principles of distinction and proportionality), responsibility (humane versus machine agency) and a loss of human authenticity in war. As to the megatrends mentioned, especially the climate crisis and global diseases, these may turn from conditions into causes of warfare (pp. 85 ff.), assigning to these non-traditional security risks a “survivalist dimension” (p. 95).
While civilians and their suffering were absent in Dunant’s account, the humanitarian attention turned to them for the first time about 100 years ago with the enormous “non-combatant suffering” during the First World War (Slim, p. xxxii). The need for the protection of civilians caught in the midst of battle, while recognized during the negotiations of GC I-IV, did not lead to anything close to a comprehensive protection with only one convention (GC IV) dedicated to the protection of civilians which, in addition, suffers from a series of shortcomings. This is understated by Slim while van Dijk deals extensively with this lack of protection especially in Chapters 2 and 5 (to which we will turn in a moment). In his Chapter 1 on the “twisted road to Geneva” (pp. 29 ff., 53 ff.) van Dijk shows that the negotiations leading to the 1949 Diplomatic Conference were heavily influenced by the post WW II cold war and colonial context (e.g. pp. 7, 8). Five aspects stand out. First of all, the process was a wholly Eurocentric enterprise, dominated by the victorious allies with only a few delegations from the Global South (e.g. nationalist China). Just compare the only 64 nations represented at the Diplomatic conference (p. 45) and the 38 State representatives signing the GC on 8 December 1949 (p. 303) with the current number of States parties amounting to 196 (see here). Second, there was a divide between the US/UK and the continental victims of Nazi aggression (especially France) given their different wartime experiences and colonial interests (p. 38). Third, getting the SU fully on board was highly uncertain (pp. 41 ff.) given, inter alia, its critical stance towards the participation of fascist States (e.g. Franco’s Spain) and towards the ICRC as a bourgeois and Western dominated organisation which, in the Soviet view and that of other (Jewish) organisations, did not speak up to the Nazi Holocaust and other atrocities (see also p. 263). Fourth, despite the just mentioned criticism, the ICRC’s role, supported by the Swiss government, was key in promoting a broader scope of the GC and mediating between the major powers, especially the US and SU increasingly stuck in the cold war. Fifth, the protection of civilians in a separate Convention was always controversial and only possible due to the personal background of many negotiators being victims of Nazi atrocities (pp. 50-1).
In fact, as explained by van Dijk in greater detail in Chapter 2 on the “making of” GC IV (pp. 53 ff.), this Convention was ultimately adopted thanks to ever-growing human rights thinking (pp. 67 ff.), promoted by France, the ICRC and even supported by the SU, albeit arguably not so much out of true humanist concerns but rather with the hidden agenda to embarrass the “West”, especially the UK/US, for their very restrictive views as to the possible scope of protection of the Geneva law. In fact, the latter rejected any rule limiting their military room for manoeuvre and preferred to have a militarily free hand as occupiers of Germany and in the colonies as well as with a view to the future (cold) war with the SU (pp. 87 ff.). Interestingly, France changed its restrictive pre-WW II position (regarding the first Civilian Conventions leading up to the 1929 Geneva Prisoners of War [POW] Convention, pp. 57 ff.) to now – post WW II – fiercely supporting the human rights discourse. Still, the Anglo-American resistance against a more comprehensive protection (covering own nationals, political prisoners, stateless persons, ensuring the rights of persons under occupation and banning the death penalty) led to a more restrictive text, limited to enemy civilians, excluding certain rights-violating measures (reprisals, inhuman treatment during interrogation) and fully ignoring the large scale repression in the colonies thus displaying a blind spot as to colonial discrimination and racist oppression (pp. 67 ff.). While there was no agreement on a preambular text which could have clarified the importance of human rights, human rights principles have been inserted in Common Article (CA) 3 though (p. 93).
At any rate, the insufficient protection of civilians by GC IV is also shown by the law and practice of indiscriminate warfare through aerial bombing, the use of nuclear weapons and starvation as a weapon of war (van Dijk, Chapter 5, pp. 197 ff.). While efforts to ban indiscriminate warfare go back to the 19th century (pp. 201 ff.), the major military powers of the time (UK, US and even Canada) always had an interest to have a militarily free hand to defeat the enemy, including by weakening the morale of its civilian population, i.e., by employing the same “morale” bombing tactics used nowadays by Russia against Ukraine. That position did not change during WW II nor during the post WW II GC negotiations. In fact, the ICRC team led by Jean Pictet started drafting the GC in the midst of indiscriminate allied bombing of German cities and the US’ use of nuclear weapons against Japan. Perhaps for this reason the ICRC’s initial reluctance to a broader prohibitive regime then changed and a ban on nuclear weapons and starvation as a weapon of war was promoted (pp. 220 ff.). However, this move was only supported by the SU and its allies (p. 223) with the Anglo-American group, including France and other NATO allies, doing everything possible to exclude indiscriminate warfare from GC IV (pp. 222, 226 ff.) and only allowing for limited prohibitions modelled after Nazi practices during WW II (use of human shields and mass starvation of civilian populations, p. 249). The ultimate confrontation between the restrictive US/UK position and the more prohibitive Soviet position took place at the 1949 Diplomatic Conference (pp. 235 ff.) where infuriated Eastern European delegates accused the US of preparing a “new Auschwitz” by impeding a ban on “blind” (indiscriminate) weapons (especially nuclear ones) and indiscriminate warfare generally (p. 247). At any rate, the more prohibitive SU proposal was rejected on procedural grounds and anything coming close to what we today know as the principle of distinction with the ensuing prohibition of indiscriminate warfare was dismissed (pp. 249-50). With this, in fact, another myth was created, namely that the Hague Law deals with weapons while the Geneva law with victims of armed conflict.
Thus, while GC I-III maintained the traditional humanitarian focus on and preference for military combatants, GC IV offered only a limited protection of civilians with the ICRC subsequently trying to improve the system of protection with a view to the principle of distinction (van Dijk, p. 251 and passim). Yet, it lasted until 1977 when the protection of (civilian) victims of (both international and non-international) armed conflict took centre stage with the adoption of the First and Second Additional Protocols (AP I and AP II). Only with this and more recent improvements, advocated by the ICRC and other (academic) humanitarian actors and facilitated by the ever increasing human rights discourse, the “huge omissions” of the Geneva negotiations have been “put right”. Only with this development it may fairly be said that Dunant’s heirs now “look at war primarily through civilian eyes” (Slim, p. xxxiii) although events like the surrender of whole army battalions, as recently at Ukraine’s Azovstal steel factory in Mariupol with the ensuing negotiations of POW swaps, turn our attention, if only temporarily, again to military combatants.
At any rate, the shift of attention from combatants to civilians is in tension with the fact that there is mostly no reliable data on civilian victims, including killings, and the numbers are sometimes exaggerated by interested parties, including and especially the humanitarian actors (Slim, pp. 100 ff.), with the number of civilian battle deaths being “strikingly low” as compared to the last century (pp. 107-8). There is clearly a need to distinguish between “direct” battle deaths, as a result of fighting and direct targeting, and “indirect” ones, as a result of secondary effects like hunger, disease, displacement (p. 108). Slim convincingly demonstrates with reference to academic studies and concrete examples of armed conflict scenarios that the indirect causes are much more relevant (108 ff.).
Another feature which has long been underestimated and neglected is the civilian agency in armed conflicts (Slim, pp. 137 ff.). Civilians are not just victims but also important actors in armed conflicts – as parents, children, social workers, medics, teachers etc. –, often more important than the humanitarian agencies which tend to get more attention although they could not do with the many civilians working directly for them or assisting them indirectly. Slim criticizes humanitarian actors and politicians for “hav[ing] been slow to formally recognize civilian agency” (p. 140). He calls for more support for civilians acting as humanitarian agents during armed conflict as well as the more explicit recognition and consideration of civilian activities and attitudes in armed conflict, including and especially with a view to the digital (virtual) role of these civilian agents (pp. 142 ff.)
Irregular fighters are normally understood as those not linked to any official (State) party, concretely to its official armed forces, either formally being members of them or otherwise incorporated into them. During WW II such irregular fighters were usually “partisans” fighting against the Nazi occupiers, i.e., “disconnected from the armed forces while targeting an enemy occupier”, including guerrillas, spies and enemy agents (van Dijk, p. 148 with fn. 5). Thus, the question how to treat these fighters in the Geneva law, dealt with by can Dijk in Chapter 4 (pp. 147 ff.), was by no means a purely academic one given that many negotiators from continental European States, especially France, had in one way or another a partisan past. The question is also linked to the civilian population’s collective right to resistance during occupation, concretely against Nazi occupation during WW II, and thus concerned, at least indirectly, practically all European nations negotiating the GC. While the more directly affected delegations, especially France, supported by the ICRC and the SU, wanted to extend the humanitarian protection to partisans recalling their fight against the Nazi occupation and repressive policies (pp. 148, 180), the Anglo-American position was strictly opposed trying to exclude irregulars from any protection, be it as POWs (under GC III) or as civilians (under GC IV by introducing a security clause). While the latter group of States was well aware of the issue of resistance against occupation, it saw itself rather in the position of future or even present (colonial) occupiers or parties to a conflict with the SU (and its communist allies around the globe) where it would not be in their interest to be bound to overly strict rules protecting this kind of fighters. Ultimately, this more restrictive position won the day, essentially limiting the protection of irregular fighters to organised resistance movements, connected to a State army (e.g. the official French resistance as opposed to anti-colonial guerrillas), and the levée en masse (pp. 149-50, 186-7, 192 ff.).
As a result, on the one hand, Art. 4A (2) GC III extends the POW concept beyond the official armed forces only to militias and volunteer groups, including “organized resistance movements”, if they belong to a Party to the conflict and fulfil, cumulatively, four conditions; the levée en masse is covered by Art. 4A(6) GC III. On the other hand, the door to GC IV is closed for these irregulars since, for one, all persons protected by GC I-III “shall not be considered as protected persons within the meaning of” GC IV (Art. 4(4) GC IV) and, for another, an “individual protected person” engaged “in activities hostile to the security of the State” cannot invoke the rights under GC IV given the pre-eminence of the respective State’s security interest (Art. 5(1) GC IV).
The Colonial Blind Spot
As already mentioned above, the whole process of the GC negotiations was essentially a Eurocentric and imperial enterprise with the US as the new hegemon often joining forces with the (former) colonial powers as far as the indiscriminate repression of anti-colonial, (communist) insurgent movements was concerned. While the negotiators’ position (especially the ones from the US) may also have been informed by some more idealistic views on humanity and justice (“Nuremberg moment”) so grossly despised especially by the Nazis, the debate on GC IV left colonial and racial injustice in both the colonies and the US (Jim Crow laws) unaddressed (van Dijk, p. 96) and, similarly, the discussion of the IHL enforcement regime, to be looked at more closely below, excluded the realities of the colonial struggle (p. 296). Thus, the whole story of the nego