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On most of the important points referred to the Cabinet before the Delegation left England, reasonably satisfactory solutions have been secured. But a large number of provisions have been introduced with a mistakenly humanitarian purpose, which may prove inapplicable in practice or otherwise undesirable. The cumulative effect of these provisions will have to be carefully weighed by the Departments concerned before any recommendation can be made to Ministers in the matter of signature.

The political advantages of refraining alone, or almost alone, from the signing of this or that Convention will also need to be taken into careful account.

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Despite such hesitation, British decision making much resembled that of the USA. By October , the agencies involved in the negotiation of the Geneva Conventions reconvened to consider steps towards signature. The British War Office, like the US army across the pond, had complaints about several of the approved provisions, including Common Article 3. The War Office felt that whenever an article threatened to elicit conflicting interpretations, a British declaration or a statement of understanding should accompany it.

This sceptical attitude raised alarms among others in attendance. Instrumental and social concerns were present and clashed during the initial British assessment. The United Kingdom has been almost too strict and rigid in the practice which it has hitherto followed about adherence to international Conventions … we have taken up the position that we would not adhere to Conventions unless our own law corresponded with them not only in the spirit but in the letter. This … did not lead us into any political or international difficulties in the old days when international bodies were not interesting themselves so keenly In this regard, Shawcross even doubted the wisdom of making a reservation on the death penalty article.

To avoid potential embarrassment by acting alone, he suggested close coordination with the USA and, should the USA fail to make that reservation, perhaps the UK should not either. After listing the countries that had already signed the Geneva Conventions, the report asserted that:. The same applies to signature accompanied by reservations either so numerous or of such a character as to be unlikely to be accepted by other Parties to the Conventions, thus producing a situation tantamount to non-signature.

The political and psychological results of such an abstention would certainly be unfortunate as the new Conventions, while containing certain provisions which may prove unworkable in practice, represent the general trend of world opinion in this field. They must also be regarded as a considerable advance … in that the scope of protection afforded to war victims is greatly extended.

It is likely that they will be signed by the great majority of the States represented at Geneva.

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The report went into great detail about the many potentially dangerous innovations included in the Geneva Conventions, showing like the USA a pragmatic accommodation to the compromise attained during the Conference on certain thorny points. Despite its long-standing aversion towards the idea of regulating internal conflicts via international law, the report noted how:.

No doubt any civilized State would wish to conform to these humanitarian provisions in any event and there is therefore little fear that the provisions might jeopardize State security by encouraging subversive elements. Regarding grave breaches, it explained how from an early stage the UK delegation had realized that:. Besides wishing to avoid opprobrium, then, the British representatives came to appreciate or at least rationalize to their superiors the potential utility even of the rules they had grudgingly accepted at the Diplomatic Conference. The report to the Cabinet ended by recommending the signature of the Geneva Conventions with only one reservation, a motion it heeded in a meeting on 2 December Britain thus signed the Conventions a few days later.

Ratification was the next step. The British IDC continued its analyses, and, by July , the Secretary of State for Foreign Affairs and the Home Secretary had jointly submitted a memorandum updating the Cabinet on the developments since December , including accounts of which states had signed and ratified or had plans to do so. The memo supported the reservation on the death penalty article but discouraged others that might elicit objections from other states, thus hindering British membership in the Conventions.

It closed by recommending the speedy adoption of implementing legislation to pave the way for ratification. The Cabinet considered this analysis and agreed with a swift move towards ratification, without further reservations. Regardless, the UK ratified with the one and only reservation supported by its allies the mentioned article on the death penalty. Extensive evidence presented here from the US and UK archives confirms that in both countries the commitment process to the Geneva Conventions featured a mutually reinforcing mix of instrumentalism and social conformity.

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This compels a reassessment of current theoretical and policy debates. Theoretically, it first of all behooves international relations and international law scholars to recognize that positing instrumental and social concerns as alternative, competing explanatory factors may be unproductive and hinder a fuller understanding of what is undoubtedly a complex process.

With regard to the laws of war, consider the excellent recent works of James Morrow and Jens Ohlin. The richness of the US and UK archival evidence presented in this article can only be captured by a more expansive understanding of international law, one attentive not only to instrumental, coordination-focused dynamics but also to social and moral factors properly understood.

The study of state commitment to human rights law has produced rich conversation akin to the one this article has engaged with respect to the laws of war. Yet, there again, disagreement about the relative influence of strategic material or social dynamics has not abated. International relations and international law scholars should thus not declare closure on the debate about treaty commitment before further refining their conceptual tools and expanding their empirical sources. And, in the particular case of the laws of war, scholars now insisting on the confluence of rationality, norms and morality should avoid simultaneously declaring the complex interaction of factors while privileging one among them in their analysis.

Now I should be precise here about what not to extrapolate from this study. Let me be emphatic: I do not claim that the interaction of factors or mechanisms identified here should be empirically present across issue areas, states or historical epochs.

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I also do not claim that the mix of motivations for ratification identified here translated easily into American and British compliance with the Geneva Conventions immediately after Excellent recent historiography in fact demonstrates that American conduct in Korea and in Southeast Asia , and British and French attitudes and behaviour in their African and Asian decolonization conflicts, were at best imperfect and problematic and at worst cruel and gruesome. Yet, to reiterate an earlier assertion, the moments of ratification and implementation or compliance are analytically distinct, and, thus, their connection should be studied empirically, not assumed.

But reasons for disconnect also abound: different specific agents are in charge at different moments, and divergent social and strategic considerations may factor into both. Historians, lawyers and political scientists should continue to carefully examine both aspects, drawing the appropriate connections. Thus, the sceptical realism that shaped decision making during the Bush administration in fact has limited historical connection with American and British commitment to the laws of war. In other words, self-serving interpretation and exculpatory justification are not within the unique purview of unabashed realists — liberal, pro-international law administrations can seemingly practice them too.

On balance, it seems that respect for international law — the laws of war included — entails a combination of at least three factors: a congenial attitude towards the law, a choice to follow its letter without interpreting its spirit away and keen awareness of the robust instrumental and social reasons to adhere to it and uphold it. As the Bush administration experience has shown, the consequences of giving into that temptation can be damning.

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Oxford Academic. Google Scholar. Cite Citation. Permissions Icon Permissions. Abstract Why have major Western powers committed to international laws of war? See, e. See the sources in note 2 above.

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The Bush administration is of course not the sole instance of this type; one might mention others and not only involving the USA. But it is a prominent case that has shaped domestic and international debate regarding the laws of war over the last decade. Note also that although the Obama administration arguably demonstrated a changed more favourable disposition towards international law, and the laws of war, in particular, critical observers have nonetheless struggled to characterize some of its decisions as altogether different from those of its predecessor.

I cannot address this controversy here, but offer some reflections in the concluding section. A sizable literature deals with treaty commitment and compliance with international human rights law. Comparatively less work exists on the laws of war, but see J. A literature straddling international relations and international law has analysed the conduct of the Bush administration with regard to the laws of war. Perrigo and J.

Wippman and M. Evangelista, New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts Goldsmith and E. Posner, The Limits of International Law For a recent legal, social-constructivist argument, see R. Goodman and D. This discussion compliance maps onto a broader interdisciplinary conversation between international relations and international law scholars. Dunoff and M. Reus-Smit ed. Carlsnaes, T. Risse and B.


Revisiting the Geneva Conventions: | brill

Simmons eds , Handbook of International Relations 52; R. Sil and P. Checkel, supra note 10; T. Risse, S. Ropp and K. See G. Best, War and Law since ; S. Iriye, P. Goedde and W. Both have the same binding legal effect. For simplicity, I refer only to reservations unless otherwise necessary. Simmons, supra note 7, at As I suggest later, the connection between ratification with or without reservations and future compliance should be taken as a hypothesis for empirical research, not as a necessary assumption.

I do not subscribe to this view, but it bears mentioning. Johnston, supra note 26, at 79— Here I follow common practice in demarcating social influences such as opprobrium and conformity from reputational concerns over future cooperation.