Preparing for War: The USA and the Making of the 1949 Geneva Conventions on the Laws of War

Preparing for War: The USA and the Making of the 1949 Geneva Conventions on the Laws of War Abstract The emerging Cold War exerted a decisive influence on both the structure and the text of the 1949 Geneva Conventions. More specifically, this article argues that emerging Cold War anxieties not only influenced how American officials conceived of the 1949 Geneva Conventions but also structured the conference debates and had a determinant influence on the content of the texts. The 1949 Geneva Conventions (and Conferences) thus looked both to the past and the future: it aimed to put an end to the Second World War while preparing for the next one. Future war may involve ideology1 1. Introduction America’s War on Terror, the treatment of captured prisoners and, more recently, the military operations against the Islamic States in the Middle East or the routinized recourses to drone strikes have fueled numerous debates relating to the U.S. government’s compliance with the laws of war. Among them, the advent of new military technologies and the repeated refusals to extend the 1949 Geneva Conventions protections to prisoners caught in the War on Terror have highlighted the inability of international humanitarian law (IHL) to seemingly constrain military powers such as the USA.2 Most debates have revolved around the legality and legitimacy of U.S. (and their allies’) military operations since September 2001 considering the provisions of the 1949 Geneva Conventions3 and whether the latter should be modernized to better meet the new military challenges of the 21st century.4 The advent of new weaponry and the treatment of individuals in warfare raised similar concerns in the USA and elsewhere in Europe in the wake of the Second World War. A few months before the end of the Second World War, during the winter of 1945, the International Committee of the Red Cross (ICRC) signaled to the Allied Powers its intention of convoking an international conference to discuss the modernization of the laws of war.5 The U.S. government heard those calls to modernize the laws of war in the wake of the Second World War. The following pages inquire into the role that the U.S. government played in this process of rejuvenating the laws of war between 1945 and 1949. The American historian John Fabian Witt recently argued that the historiography of the laws of war ‘inspires dismay’ because international norms have so often been violated. Yet, this history ‘seems to have made little impression on the way in which observers think about the laws of war. The history of the field barely exists’.6 Historians, humanitarians and lawyers alike traditionally emphasize the benefits set out in the Conventions7 rather than the actual diplomatic discussions and the national strategic motives that undergird the provisions.8 In addition, few works have explored in detail the Geneva gatherings beyond the final documents and the official travaux préparatoires.9 Building on U.S. Department of State (DoS) legal memorandums from the early Cold War years (1945–1949), the article analyzes how and why the American government contributed to the reconstruction of the laws of warfare in the wake of the Second World War and the role these norms play in postwar U.S. foreign policy. The U.S. policies on this issue coalesced at a critical historical juncture. The end of the Second World War and the creation of the United Nations (UN) signaled, on the one hand, the end of European ascendancy over global politics.10 On the other hand, the drafting process of the Geneva Conventions took place in the shadow of rising Cold War tensions between the American government and the Communist world.11 The quest for modernizing the laws of war between 1945 and 1949 paralleled the emergence of a network of global institutions exhibiting constitutional characteristics whose contours were strongly influenced by American diplomats.12 Initially considered as a trivial and technical diplomatic exercise, the Geneva Meetings gained importance with the rise of the Cold War and the widening of the ideological divide between the USA and the Communist world. For the USA, the Geneva process offered an opportunity to define the battlefield of the Cold War not only in military terms but also in legal terms.13 As this article argues, the Geneva Conventions of 1949 reflected both American postwar humanitarian concerns and the uncertain, albeit anticipated and transformative, effects the Cold War would have on the application of basic humanitarian principles in nuclear age warfare. In this article, Section 2 explores the reasons that led the USA to participate in the Geneva Conferences between 1946 and 1949. Section 3 analyzes the U.S. government during the diplomatic meetings and its relations with the Soviet Union. Based on the evolution of the American thinking pertaining to the limitations on the use of aerial bombardments and the repatriation of prisoners of war (PoW), Section 4 examines how the drafting of the Geneva Conventions and the discussions over these two issues took place in the shadow of the rising Cold War and U.S. global security concerns. In conclusion, the project of modernizing the laws of war paralleled similar developments in the field of international human rights taking place at the UN Commission on Human Rights which culminated with the adoption of the Universal Declaration of Human Rights (UDHR) in December 1948, nine months before the signing of the Geneva Conventions. In both cases, the USA played a defining role in drafting these two documents.14 For the American government, the new laws of war—like the UDHR in 1948—emerged in 1949 as a political repertoire for fighting a new kind of war for humanity’s heart and soul against the Communist world. 2. The ICRC and the Diplomatic Conference of 1949 Adopted on 25 June 1945, the UN Charter meant that recourses to force in international relations would be strictly limited to situations of self-defence or those authorized by the Security Council. Meanwhile, the ICRC was busy preparing for future wars.15 Technological developments in the fields of armament and military tactics and the totalitarian nature of the Second World War questioned the relevance of the pre-1945 laws of war regime in future military conflicts.16 As the Second World War was coming to an end, the ICRC, a Swiss-based non-governmental organization (NGO),17 informed sovereign states—many of which were still involved in the war—of its desire to modernize the laws of war. ICRC’s calls to rebuild the laws of war were not simply about salvaging warfare ethics from the trenches. The reputation of the organization was also at stake. The ICRC wanted to proceed speedily with the revision process, for the organization had been suspected before and during the Second World War of being soft on violence.18 In this regard, the Committee’s silence19 during the Allies campaigns of unrestricted bombings against German cities exemplified some of the moral and political dilemmas the Organization had to face.20 Its record on the Holocaust was also heavily criticized.21 Max Huber, the President of the ICRC between 1928 and 1944 and a Swiss international lawyer, exercised a decisive influence on the organization’s equivocal actions.22 For example, in the context of the Second Italo-Abyssinian war (1935–1936), Huber refused to disclose information on Italy’s violation of the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.23 He wanted to preserve ICRC’s privileged access to European chancelleries, which rested on the neutrality of the organization even in the face of grave and patent violations of the law of war. Given its historical record, the ICRC had good reasons to speed up the postwar diplomatic negotiations over the revision of the laws of war and to renew its commitment to humanizing warfare. The task was, however, daunting. On 5 September 1945, Huber, the then Acting President of the Committee, requested the assistance of the 1929 Convention Relative to the Treatment of Prisoners of War24 signatories and of National Red Cross societies in collecting information on the legal issues faced by states during the war, the solutions they had devised and the loopholes they had identified in the existing corpus juris.25 In Washington, U.S. DoS advisors carefully and dutifully studied Huber’s invitation. Upon its reception, DoS officials, with the help of the War, Navy, Justice and Interior Departments as well as the American Red Cross, initiated a revision process of how the American military interpreted and applied the laws of war in warfare.26 During the first months of the process, the American government showed little concern regarding Soviet involvement in the diplomatic conference. The Second World War had just come to an end and tensions between the two former allies had not yet erupted.27 At first, American officials considered the revision of the laws of war as purely a technical and legal problem. They saw ‘no reason for bothering the President to approve a technical commission’.28 British advisors, contrary to their American homologs, rather believed that the laws of war were only matters of high politics. The ICRC’s action on the ground and its growing diplomatic role—moreover by a non-British private entity—interfered with the sovereign organization of warfare and mingled with national security matters. Most invited states nonetheless shared the American view. They genuinely believed that the violence of the war could be constrained by simply revising, modernizing and expanding the scope of existing codes of warfare. However, the rise of American Cold War anxieties in the ensuing months dramatically changed DoS officials’ perception of the ICRC’s diplomatic campaign and of the laws of war as such. In the fall of 1945, the American government did not seem particularly preoccupied by the Red Army’s and more generally Moscow’s attitude toward the rules of warfare. However, as the wartime cooperation between the two military powers withered away between 1946 and 1949, the U.S. officials started scrutinizing and reporting on the Soviet Union’s behavior during the diplomatic negotiations. The first question raised was how Moscow would react to the ICRC’s invitation. Soviet participation was crucial if the ICRC wished to achieve any meaningful international consensus on the new conventions. In December 1945, Andrei Vishinski, the Soviet representative to the UN, explained Moscow’s attitude toward the ICRC’s project in a speech given before the UN. In the opinion of the Soviet government an unfavorable impression would be made on world public opinion if already in the first days of peace the governments of the chief countries which participated in the war should concern themselves with the preparation of such an agreement concerning war prisoners.29 The U.S. legal advisors believed that the Soviet Union could hardly contribute to the revision process since they had no experience in applying the laws of war conventions. The USSR had not ratified the 1929 Geneva Convention on the Treatment of Prisoners of War and had not established official relations with the ICRC. Therefore, their role in preliminary discussions was deemed superfluous.30 American officials nonetheless recognized that the preliminary discussions would have to focus on developing a more realistic and practicable propositions than the ones that had already been put forward by several national societies of the Red Cross. This would contribute to enhancing the likelihood of Soviet ratification of the future conventions, something the U.S. government soon came to consider essential.31 In January 1946, after six months, the American government finally agreed to participate in preliminary discussions. The Truman administration, under the impulse of Dean Acheson,32 the then Under Secretary of State, and with the help of the American Red Cross, created the Interdepartmental Prisoners of War Committee (POWC). The Committee brought together representatives from the War, Navy, Justice, State and Interior Departments to discuss policy-making regarding PoW then held by the American military in Europe, in Asia and the USA.33 For the American military, the experience acquired during the Second World War had clearly highlighted the lacunae of the 1929 Geneva Convention, and the consequent need to devise principles better suited to modern warfare. The treatment of PoW was one of the major postwar issues faced by the American government. The tens of thousands of foreign PoW captured during the Second World War and detained in a vast network of camps spread across America as well as in Europe and Asia, were a constant source of preoccupation for the U.S. officials. Legal uncertainties pertaining to the treatment of PoWs by the U.S. military constituted another major source of concern. For example, in the 1946 Yamashita case,34 the U.S. Supreme Court had held that Article 60 of the 1929 Geneva Convention35 was applicable only to individuals who were subjected to judicial proceedings for offenses committed while being PoW and not to acts committed before their capture. This ruling ‘was inconsistent’ with the declared American postwar policy of protecting ‘Americans under sentence of death in Germany’.36 DoS officials were also concerned about the protection of American PoW detained abroad and facing criminal charges. Given the reciprocal nature of many laws of war obligations, the U.S. officials feared that the Supreme Court ruling in Yamashita may send mixed signals to foreign armies and governments and had, consequently, a negative impact on the fate of thousands of U.S. PoW detained abroad. American officials therefore felt an urgent need to reaffirm certain basic international legal principles regarding PoWs’ treatment and to modernize some other rules to better protect U.S. military captured abroad. It is important to note that the discussions leading up to the Geneva Conferences did not attract the attention of senior policy-makers in the Truman administration. Dean Acheson’s involvement, who would later become the Secretary of State in 1949, appeared in this regard as exceptional. Between 1945 and 1949, most American representatives were from either the Department of Defense or the DoS and occupied minor positions within their respective departments. Given the importance of the laws of war nowadays in U.S. politics, it is rather surprising that the U.S. delegation was devoid of any high-ranking officials.37 This was probably due to the perceived technical nature of the laws of war. However, for the growing community of international lawyers, the Geneva conferences were part of a greater project aimed at rebuilding the discipline and the fundamental structures of international law. In the meanwhile, the ICRC tirelessly pursued its work. After sending the invitation letter in the fall of 1945, the ICRC organized during the summer of 1946 a preliminary conference in Geneva. More than 140 delegates from various national Red Cross societies—with the notable exception of the Soviet, Japanese and German national Red Cross and Red Crescent societies—and the League of Red Cross societies—a distinct organization from the ICRC that was engaged in a covert battle against the ICRC for the control of the international humanitarian movement—gathered to discuss ICRC’s proposals for a future diplomatic conference. Very few national delegations opposed ICRC’s various proposals.38 The ICRC, national delegations and national Red Cross societies officially met for another round of diplomatic negotiations at the Seventeenth International Red Cross Conference held in Stockholm at the end of August 1948. Chaired by Folke Bernadotte, the President of the Swedish Red Cross society, the Conference brought together representatives from 52 national Red Cross societies and 50 governments.39 The Soviet Union declined to participate because the ICRC had, according to Moscow, failed to denounce fascist war crimes committed before and during the war as well as in the Nazi concentration camps. Moreover, Moscow seemed suspicious of the ICRC’s involvement in the Spanish civil war.40 Soviet distrust of the ICRC dated back to the Bolshevik Revolution during which the NGO had helped political opponents seeking asylum outside Russia and shielded others from summary executions or some other forms of reprisals by the Communist revolutionaries.41 Other communist satellite countries such as Bulgaria and Hungary followed the Soviet example and did not attend the Stockholm conference.42 But that did not prevent the participants from adopting four draft conventions and to ask the ICRC to coordinate with national governments in anticipation of the final conference which opened on 21 April 1949 in Geneva. The conventional narrative of the Geneva process tells us a story in which states were generally sharing a common vision for the humanization of warfare, despite the difficulties and misunderstandings normally arising during such diplomatic gathering. This account gives the impression that the different national delegations worked together in an environment free of political and ideological tensions. To a certain extent, these assertions appear valid,43 but the American archival documents consulted reveal a different story—one in which political, military and legal considerations were closely intertwined. For the American administration, the laws of war were integrated into a broader scheme aimed at ‘defending international law’ against the spread of ‘anti-universalistic values’ and Communist ideology. The laws of war thus became an important tool for legitimizing in the public opinion Cold War military decisions and operations conducted by the U.S. government, and for criticizing Communist military practices on the battlefield. 3. The U.S. Attitude at the Geneva Conference of 1949 A. A ‘Pragmatic and Realistic’ Approach to the Laws of War? The American delegation defended a humanitarian and legalistic vision of the laws of war in the preparatory conferences leading to the 1949 Geneva conference. Like other national delegations, their central objective was to devise clearly delineated rules and principles ‘to mitigate individual suffering in the event of future wars’.44 This formalistic façade, however, hid deeply entrenched fears that the negotiations may become politicized. For example, the DoS urged the American delegation in Stockholm to focus solely on the traditional humanitarian work performed by the Red Cross and to strongly oppose any potential move to discuss ‘political questions’ without defining what political questions meant.45 Equally mysterious is the fact that the U.S. delegation’s final report on the Geneva Conference did not mention important questions raised by the advent of the Cold War. The report’s neutral tone rather seemed to follow the instructions given for the Conference of Stockholm held the previous year: not a single word was dedicated to U.S.—Communist issues, even if Moscow had become a central preoccupation for the U.S. delegation.46 This seemingly apolitical approach also contrasts with the eloquent report prepared by Albert H. Clattenburg, who was then the Chairman of the American delegation to the first Conference of Governmental Experts held in Geneva in 1947. Despite the two years that separate the 1947 and 1949 conferences, this report eloquently illuminates the rising Cold War anxieties animating the U.S. officials’ thinking about the modernization of the laws of war. Clattenburg provided the Secretary of State with a detailed description of the various issues that could not be included in the official report. In his view, the American delegation had adopted a realistic and pragmatic approach to the laws of war, which diverged from that of their European counterparts coming from the liberated countries who bore the more conventional humanitarian understanding of the laws of war. In fact, the American delegation seemed to never have considered the laws of war as a panacea in times of conflict. These [Europeans from liberated countries] delegates exhibited to a surprising degree reliance upon international legislation as a means of eliminating evil from the minds of man, and of confidence that precisely the correct formula would prevent a dishonorable enemy from warning [sic] the interpretation of such legislation to mean whatever might suit him.47 For the American administration, the revision of the Geneva conventions mainly served two purposes. First, it was important to renew the traditional humanitarian commitment. As such, the American government shared the opinions of their foreign counterparts on the laws of war’s humanitarian function. Yet, these humanitarian convictions were imbued with a strong dose of realism. The aims of such war conventions were the mitigation, ‘even if slight, in the suffering of individuals by setting up a standard of decency which no government will want to openly violate’.48 This official (but secret) position adopted by the American delegation in 1947 openly contradicts the conventional wisdom on the origins and purposes of the laws war. In fact, Clattenburg seems to have recognized that violence in times of war remained taboo, and that there was nothing international law could do about it. At best, it could compel states and armies to hide their wartime violence from public scrutiny. Second, the laws of war were also necessary for maintaining the morale of soldiers, PoW and civilian populations in times of conflict. Clattenburg’s thoughts on this issue are worth quoting at length: To the weaker nations, to the members of the armed forces, to populations in areas likely to be overrun by hostile troops, the humanitarian conventions represent a sort of insurance policy. They hope not to collect on it but it helps allay fears. The negotiation of such agreements has become part of the normal pattern of behaviour of governments. To proclaim that it is futile to follow this standard or to attempt to renegotiate the insurance will not only heighten the impact of the fear … but might add to those of desperation. And certainly professed failure in the lesser field would impair confidence in the possibility of success of the United Nations in the larger field of trying to forestall entirely any war more serious than a local revolution or a tribal dispute.49 Preserving the morale of the military and civilians in times of war became a crucial element in American thinking, given the context of rising Cold War tensions with the Communist bloc. The 1948 Berlin crisis and the Communist takeover of Czechoslovakia reflected rising political and military tensions between the two wartime Allies. It also signaled the possibility of a new war on the European continent. This possibility influenced how the USA conceived of the renewal of the laws of war. For example, from 1947 onward, Communist bloc representatives participating in the preparatory conferences attempted to pass the so-called ‘peace resolution’ aimed at prohibiting the use of war as a mean of settling dispute, and the use of weapons of mass destruction. Even though this was essentially considered as a strategic move—the Soviet Union exploded its first atomic bomb only in August 1949—discussions on these issues nonetheless created important diplomatic problems for the U.S. government. The Communist argument underlying the resolution was relatively simple and straightforward: why is it necessary to discuss PoW and civilians’ protection since the UN organization had been established to prevent war?50 For the American delegation, this meant, on the one hand, that a vote against such a resolution could obviously be interpreted as a vote for the continuance of war as a political weapon, which would, as a consequence, delegitimize the newly created UN. On the other hand, allowing such an important ‘political issue’ to be dragged into the diplomatic process might derail the negotiations and prevent states from reaching an agreement of the new laws of war. According to Clattenburg, these questions had to be avoided at any cost, for ‘the basic, continuing problems involved in the humanitarian conventions are deemed legal, military, administrative and, of course, humanitarian. In other words, they are intrinsically technical, not political’.51 Rising Cold War tensions highlighted the inherently political nature of the legal rules being devised and law’s capacity to define the contours of future battlefields, identify legitimate targets and determine the proper means of warfare. This shift was reflected in the changing American attitude toward the Soviet Union throughout the negotiation process leading to the adoption of the Geneva Conventions in August 1949. B. American Attitude toward the Soviet Union Soon after the Second World War, international law was, according to a contemporary writer, split between two universalistic competing ideologies.52 This was the conclusion Professor Quincy Wright, advisor to Justice Jackson at the Nuremberg trials, arrived at in 1954. His remarks reflected the intellectual environment within which U.S. government advisors reimagined international law after the Second World War. The Nuremberg trials, which were contemporary to the Geneva Conference, had shown how ideologically loaded and contentious the laws of war could be in a time of rising Cold War tensions.53 The expansion of Soviet totalitarianism in Europe and Asia in the years following the end the Second World War became a permanent source of anxieties for the U.S. government as well as for American political and juridical institutions and values.54 American foreign policy-makers shared those anxieties. According to John Foster Dulles, then a U.S. representative to the UN, the Soviet Union was both a military threat and a destabilizing ideological force to the postwar world order built by the USA.55 Taking the example of the UN, the Secretary of State, George C. Marshall, feared the weakening of U.S. leadership in world politics, the postwar allied unity and the newly established UN.56 A firm response against the global threat of communism was required and international law constituted one of the mediums used to convey this message around the world. The American government became the self-designated leader of this mission.57 In the words of J.F. Dulles, ‘since it so, a first phase of our quest for peace must be to restore our moral influence …. We [the United States] shall, I hope, continue to be imbued with a righteous faith and a sense of mission in the world.’58 Neither the Geneva Conventions nor the American delegations dispatched to Geneva evaded these Cold War anxieties.59 In the spring of 1949, American delegates anticipated that the Soviet delegation would play the role of the ‘great humanitarians and possibly endeavor to embarrass those who oppose working drafts on practical and legal ground’.60 Dean Acheson, then Secretary of State, was convinced that the Soviet delegate would use the Conference as a ‘sound board [for] call[ing] further attention to East-West controversial issues’.61 However, most national delegations knew that the Geneva Conventions would be meaningless without the Soviet ratification. Moscow could not simply be sidetracked. And this was a major problem in the opinion of the U.S. advisors, since Soviet absence from the negotiating table at the two previous conferences of 1947 and 1948 had greatly increased Soviet bargaining power at the 1949 Geneva conference ‘by putting a premium on their mere attendance and sharpening up the necessity of their concurrence in the final drafts’.62 For example, on 13 May 1949, in an article published in Pravda, the official newspaper of the Soviet communist party, a journalist strongly criticized British and American positions. The former was described as a colonialist and imperialist state striving to limit the conventions, while the latter was qualified as uncooperative and systematically opposed to all Soviet proposals that ‘one would think … would [have] receive[d] support [from] all civilized honest people’.63 Diplomatic euphemisms and platitudes hid a deeper ideological division between Washington and Moscow. According to the American archives, the legal constraints on aerial bombardments (considering the advent of the atomic bomb during the Second World War) and the problem of PoW repatriation highlighted how the news laws of war had become a battleground over the memory, the meaning of the Second World War and the definition of the contours of the new international order. In 1949, the Cold War had colonized the diplomatic process as well as the norms to be included in the Geneva Conventions.64 4. The Geneva Conventions Enter the Cold War A. Aerial Bombardments and the Atomic Bomb Air power radically modified the way military strategists and lawyers thought about war. This new technology eroded classical warfare distinction between civilians and the military.65 For example, the Zeppelin raids over London during the First World War demonstrated how war could be carried behind enemy lines.66 It also raised questions regarding the legality, notwithstanding the legitimacy, of such military means.67 Aerial bombardments thus blurred the frontiers between military necessity and humanitarianism by questioning the legal status of civilian populations in times of war. While this problem became obvious during the First World War,68 it gained saliency during the Second World War. By 1945, more than 500 000 Europeans had been killed in aerial bombings which also brought material havoc, mostly in urban areas.69 The U.S. military made extensive use of incendiary bombs against German and Japanese cities, causing widespread devastation and condemning tens of thousands of people to incineration.70 In Geneva, the American delegation wanted to avoid an open condemnation of the Allies’ unrestricted bombing onto enemies’ cities. As Lester Nurick, a U.S. Judge Advocate General’s lawyer, put it in 1945, ‘when [aerial bombardment] was profitable to do so, belligerents have not generally refrained from bombing because of vague doubts as to legality’.71 This was an important issue since the Nuremberg and Tokyo trials were still fresh in the minds of the delegates gathered in Geneva and that the USA and its allies wished to avoid public trials that might trouble the legacy of U.S. war efforts both in Europe and in Asia. Indeed, during the Nuremberg trials, ‘it is significant that no attempt was made by the Allies … to stigmatise as unlawful the method of aerial bombing employed by Germany which included the indiscriminate use of flying bombs and rockets’.72 Another reason to avoid discussions over aerial bombardments in Geneva might have been that the American military certainly wished to keep its military options open in future wars: strategic bombings had become incredibly important and constituted the main way to deploy nuclear weapons. As American delegates had expected, Soviet diplomats, soon after the opening of the Geneva Conference in 1949, introduced a draft resolution condemning weapons of ‘mass-extermination’ and, by extension, aerial bombings. In fact, the Soviet Union and its allies never stopped condemning and criticizing the narrowness of the Conference’s purview and its focus on devising rules for the protection of war victims (PoW, civilians, wounded, etc.) without discussing the rules pertaining to the general conduct of hostilities as such.73 While American officials involved in diplomatic activities were accustomed to Soviet behavior, the delegates remained nonetheless puzzled over the exact meaning of ‘mass-extermination’ and whether it included the atomic bomb or not. Although SOVDEL [Soviet Delegation] avoided direct reference to secret weapon and refused to give concrete examples of cases intended to be covered by phrases ‘means of exterminating the civilian population’, it is abundantly clear from debate on article 29A that the Soviet are seeking to outlaw aerial bombardments by characterizing them as a serious crime.74 The U.S. opposition to the Soviet view on the issue ‘of means of exterminating the civilian population’ quickly became deeply entrenched. This created a feeling of uneasiness among delegations at the Conference about how the ICRC should handle the issues of indiscriminate bombings and the use of atomic weapons.75 In a long memorandum, Dean Acheson, the U.S. Secretary of State, urged the American delegation to ‘kill’ at any cost the highly anticipated Soviet resolution on this issue. In any case, according to Acheson, since the control of atomic energy was already under the jurisdiction of the UN Commission of Atomic Energy, it was deemed unproductive and unnecessary to discuss atomic weapons during the Geneva Conference.76 The Soviet stance on the issue would prove to be somehow contradictory because, few weeks after the adoption of the Conventions, on 29 August 1949, Moscow detonated its first atomic bomb in the Soviet Socialist Republic of Kazakhstan. This situation echoed back to a major wartime contentious issue between the two Great Powers. While the Americans secretly developed their nuclear capacities, suspicions were arising in 1949 that the Manhattan Project had been infiltrated by Soviet agents. Dean Acheson and many other U.S. officials suspected that a stand-alone convention on the prohibition of atomic weapons would provide no assurances that the Soviet or any other country would refrain from developing their own atomic arsenal. Furthermore, Acheson doubted ‘that nations not known to have atomic weapons, but who might have them, would carry out their obligations’ or even, that nations would be prevented from manufacturing those weapons.77 He worried about the security needs of the USA—and the firm opposition of the Joint Chief of Staff to any prohibition on the use of the atomic bomb78—since such a ban on nuclear weapons ‘would not protect the world against atomic warfare’. Indeed, Acheson believed that the Soviet resolution was an obvious attempt to seek endorsement of the repeatedly rejected Soviet position in a forum where the members did not have the necessary technical competence to discuss atomic energy-related issues. More troublesome for the Americans, the Soviet resolution aimed at publicly embarrassing them.79 Following Acheson’s reactions, the American delegation became ever more anxious about potential Soviet proposals to completely ban atomic weapons. As a result, the American consulate in Geneva decided to probe other delegations’ views on the issue of atomic weapon. Extensive discussions were held with French, British and Latin American representatives to secure their support for an eventual vote against the Soviet resolution to ban ‘weapons of mass-extermination’.80 Even in the closing days of the conference, American delegates were still anxiously honing in their arguments against the Soviet proposal. The American counterargument suggested that the UN had already inherited the responsibility to manage atomic energy and that the ‘curtain countries’—as they called the Communist Regimes of Eastern Europe—had stubbornly refused to cooperate with the rest of the world. Because American delegates needed to avoid giving the impression of defending the military use of weapons of ‘mass-extermination’, all responsibilities for failing to reach an agreement on the use of these weapons had to be dismissed on the Soviet Union because of their obstinate refusal to cooperate with the UN Atomic Commission.81 The Soviet resolution was raised in the plenary meeting on 9 August, three days before the end of the Conference. The Soviet representative, General Slavine, remarked on that occasion that the ‘draft Civilian Convention does not protect the civilian population against the effect of modern weapons of warfare, such as the atomic bomb, and bacteriological, chemical, and other means of mass destruction’.82 Slavine called upon national delegates to condemn the use of such methods of warfare and to declare that these weapons of mass extermination were contrary to elementary principles of international law.83 What seemed to be clear for Moscow, at least in appearance, divided international lawyers of that time and it still does today. While almost every international lawyer had condemned the Nazi Germany uses of V1 and V2 missiles against the civilian populations of London, the same international lawyers remained silent on the legality of the use of the nuclear weapons.84 Josef Kunz provided the readers of the American Journal of International Law with a rather provocative response as to why international lawyers had refused to condemn the use of the atomic bomb. ‘The reason for this silence seems to be the fact the atomic bombs were first used by the United States’.85 Hersch Lauterpacht, one of the most prominent human rights lawyers of that period, expressed mixed feelings as well. He linked the use of atomic weapons to the question of aerial bombardments and concluded that the legality of both were beyond a categorical answer. International law was powerless to prevent the use this type of weapons and that their regulation rested within the ambit of sovereign states.86 The U.S. legal advisors, thus, somewhat succeeded in defusing the crisis over weapons of mass-extermination. However, by leaving the obvious outside the purview of the Conventions, the U.S. government contributed to making the laws of war more amenable to Cold War anxieties which legitimated, albeit implicitly, the use of technologically advanced weaponry with devastating potentials for civilians. Prohibitions on the use of advance military strategies and technologies in future conflicts was a direct challenge to postwar U.S. military doctrine. The proposal, however, well suited the Soviet Union which relied heavily on conventional military forces stationed in Europe and Asia. The American delegation along with British and Commonwealth countries support defeated the Soviet proposal. Arguing on procedural ground, Lieutenant Colonel Hodgson, the Australian representative, claimed that, since the draft resolution had not been previously submitted to the Bureau of the international conference, it fell outside the ambit of the original invitation from the Swiss Federal Council, and could not, as a consequence, be studied in plenary meeting. Hodgson also reminded his colleagues that a similar resolution had previously been rejected at the meeting held in Stockholm in 1948. According to the Australian delegate, the Soviets were using a ‘back-door method [for] getting the conference to accept something which is completely unacceptable’.87 After heated discussions, the draft was ultimately declared inadmissible by a vote of 35 against 9 with 5 abstentions. A few months after the Geneva Conference, the Policy Planning Staff and the Office of the Secretary of State jointly sponsored an important study on the practice of bombing civilian populations in order to provide legal and policy guidance to military advisors.88 The subject of atomic weapons was again left outside the purview of the study. Unsurprisingly, the author’s main conclusions endorsed the legality and legitimacy of Allied bombings of Germany, Italy and Axis occupied territories. ‘When the United States Air Forces commenced operations in Europe, they directed their attacks at specific industries and services, particularly at those contributing to the support of the enemy’s armed forces … In the course of these operations, civilian casualties were inevitable.’89 The most interesting conclusion of this report is, however, the ex post facto justification for the bombardments of civilian populations. According to the report, the legality of aerial bombardments could be legally justified if analyzed in conjunction with the idea of total war. World War II contributed to the classic understanding of the art of war of [sic] a new principle, namely, the principle of capacity for war. Gradually during World War II it came to be recognized that the enemy’s economy and industry, from which the enemy’s armed drew their strength and substance, were essential parts of the enemy’s capacity for waging war and that as such they were valid and important objectives of attack in the all-out effort to win the war.90 The U.S. government was preparing the country for a potential war against the Soviet Union in which weapons of ‘mass-extermination’ and aerial bombardments would play an important role. These suspicions were soon confirmed when in late August 1949, just a few days after the conclusion of the Geneva Conference, the Soviet Union exploded its first atomic bomb, First Lightning, a replica of Fat Man, the American atomic bomb that had exploded over Nagasaki four years earlier. While the Geneva Conventions remained silent on the legality of the use of nuclear weapons and aerial bombardments, the US military, building on this gap, redesigned the contours of future battlefields to include the enemy’s economy and industry as ‘essential parts of the enemy’s capacity for waging war’. In addition to preserving the power to use indiscriminate bombings and atomic weapons, the repatriation of prisoners was among the most important and urgent problem facing the U.S. delegation at Geneva. With the rising tensions between the Western and Communist blocs, this issue soon became a major bone of contention between Moscow and Washington. B. The Repatriation of PoW Repatriation of the Second World War American and foreign PoW was another major postwar issue for the U.S. administration and military as well as for American public opinion. As with the questions of aerial bombardments and weapons of mass extermination, the Soviet threat and Cold War anxieties provided the ideological context which partly dictated the American delegation’s legal standing on PoW issues at the Geneva Conference. While the U.S. army captured more than 7 000 000 PoW during the Second World War and was generally respectful of the old and established rules of warfare,91 the Red Army, seemingly, did not appear to be evenly bound by the customary rules regarding the treatment of PoW.92 At the Yalta Conference, held in February 1945, the U.S. and Soviet governments agreed to repatriate all citizens, not just PoWs, at the end of the war. In the closing weeks of the Second World War, this agreement quickly vanished into thin air and soon major hurdles arose. For example, Moscow denied it was detaining American PoWs while the American government objected that more than 23 000 American PoWs were in fact being detained by the Red Army. Although this account remains unsettled,93 the Soviet Union behavior left a strong impression from 1945 onward on U.S. policy-makers about the nature of the Communist regime and its reliability in times of war.94 Until the 1949 Geneva Conference, the U.S. government pretended to have dutifully respected the Yalta agreement and the repatriation rule contained in Article 75 of the 1929 Geneva Convention which provides that every PoW must be repatriated at the end of a conflict. The provision nevertheless remained silent as to which country should the PoW be repatriated. State parties to the 1929 Convention seemed to have tacitly agreed that the country of repatriation was the country of origin or citizenship of the prisoner of war.95 However, in Geneva, this question became entangled with Cold War politics. With a deteriorating collaboration and the fear of an imminent war with the Soviet Union, the U.S. policy-makers sought to introduce more protection for PoW in the Third Geneva Convention of 1949 by broadening the responsibilities of the detaining state toward PoWs. Protecting and repatriating U.S. soldiers detained in Europe and Asia was not the sole issue needing to be addressed. As an occupying power in Germany and in Japan, the U.S. administration was also responsible, as a wartime Ally, for the security of German and Japanese PoW held in Soviet labor camps disseminated across the country. Thus, the PoW problem had a worldwide dimension. According to U.S. figures, there were approximately 375 000 Japanese PoW still held in Soviet prisons more than four years after the Pacific War had ended,96 many of which were apparently used as free labor and for propaganda purposes.97 Moscow contested U.S. figures and evidence. TASS, the Soviet news agency, indicated in a press release that the repatriation of Japanese PoW from the USSR had been completed in full and accused the USA of detracting the attention of world opinion from the U.S. policy directed ‘toward the economic and political enslavement of Japan’.98 As it was stated in an unsigned American report, there was a ‘startling discrepancy’ of more than 300 000 men between, on the one hand, the Supreme Commander of the Allied Powers (SCAP) and Japanese government statistics and, on the other hand, the TASS statement.99 Similarly, treatment of German PoW by the Soviet military also appeared extremely difficult. Thousands of German PoWs were held in Soviet labor camps, tortured and condemned to death following fake criminal procedures.100 In both cases—German and Japanese—ideology and practical motives played a fundamental role in the treatment of PoW.101 Unlike the Western front,102 on the Eastern Europe front, ideological and racial considerations determined the fate of thousands of Germans and Soviet PoW.103 For instance, thousands of German PoW were used to build the subway system in Moscow, construct power plants, railway tracks and the defence industries located in the Ural Mountains.104 In Asia, the literature suggests that U.S. and Japanese PoW policies sharply differed. The U.S. military generally respected the 1929 Geneva Conventions, while the Japanese exerted all kinds of violence (torture, enslavement, etc.) against American PoW for pragmatic and xenophobic reasons.105 Early in the months following the end of the Second World War, the American administration the Soviet Union have reached an agreement on soldiers’ repatriation—soldiers would be sent back to their countries of origin regardless of their wishes—but the rise of the Cold War dramatically changed that. Soon after the 1949 Geneva Conference, the U.S. legal advisors started arguing that Article 118 of the Third Geneva Convention106 provides the right to a detaining power to grant asylum to a PoW or at least to offer him the choice of his repatriation destination. This interpretation ran contrary to the shared understanding over this specific issue which prevailed in Geneva. This understanding was subsequently confirmed after the Korean War.107 In a 1954 memorandum, DoS legal advisors produced an extensive review of state practise and the historical development of the laws of war related to the treatment of PoW. Their memorandum concluded that prisoners have a right to refuse to be repatriated to their country of origin and consequently have a right to choose the country of repatriation.108 Contemporary American commentators concurred with that position.109 This reading of Article 118 suggested ‘that the drafters of the Geneva Conventions had not considered the fact that some POWs may not wish to return home’.110 However, this argument did not seem to convince everyone within the U.S. administration. For example, General Dillon, a member of the U.S. delegation to the Geneva Conference of 1949, argued a few months after the adoptions of the Conventions that the Third Geneva Convention was more ‘logic[al]’ and ‘clear’ because it was establishing absolute standards for the treatment of PoW and giving less latitude and discretion to the detaining power than the 1929 Geneva Convention.111 Moscow’s intransigence and literal interpretation of Article 118 of the Third Convention112 not only contrasted with that held by many American officialsbut also highlighted the adverse domestic effect the defection of thousands of PoW could have on the Soviet Union. Moscow’s reading suggested that every prisoner, without exception, had to be repatriated, with the logical consequence that this might include forcible repatriation for soldiers who resist it. Moscow invoked three reasons to justify its claim.113 First, the language used in the Third Convention was peremptory and therefore, did not allow a ‘humanitarian’ exception as the Americans claimed. Second, states participating in the 1949 Geneva Conference refused to include in the final draft an Austrian amendment providing that ‘prisoners of war … shall be entitled to apply for their transfer to another country which is ready to accept them’. Therefore, the USA could hardly appeal to state opinion juris as the basis for a humanitarian exception. Finally, according to the Soviet reading, Article 7 of the Third Geneva Convention of 1949, which provides that no prisoner of war may renounce the rights secured for them under the convention, did not allow room for humanitarian considerations. Both American and British military lawyers rejected these arguments. First, forcible repatriation was not explicitly included in the Convention. States had the responsibility to repatriate every prisoner of war to his home country. However, in cases where a prisoner was obstinately refusing repatriation, did the detaining state have the discretionary power to grant asylum to the said prisoner? Second, with regard to the Austrian amendment, the rejection of the amendment in 1947 by the Diplomatic Conference did not mean that states had excluded the possibility that individual consideration could, in exceptional cases, never be envisaged. Thirdly, some underlined the fallacy of the Soviet argumentation regarding Article 7 which was designed, as they argued, to prevent situations where PoW could forcibly be retained after the hostilities on the pretext that they had renounced their rights to repatriation. Article 7 was also drafted in a way to prevent PoW from seeking asylum in the detaining country or to ensure the forcible repatriation of PoW, who had genuine reasons to fear political persecution.114 Soviet approval of forcible repatriation of its PoW and citizens had important and compelling humanitarian consequences for the American government. First, the U.S. and Soviet governments did not define the meaning of ‘Soviet citizen’ in the Yalta agreement. This created problems as to how to qualify a ‘Soviet citizen’ as such. Those who resided in the territories annexed in 1939–1940—the Baltic states and Poland—were also claimed by Moscow as Soviet citizens, but the USA never recognized the legality of the Soviet territorial claims in these areas.115 Thousands of so-called ‘Soviet citizens’ were thus ‘repatriated’ and sent directly to prisons in contravention of the Third Convention.116 In addition, Stalin’s Order 270 stated that every Red Army soldier who allowed himself to be captured alive was considered a traitor to the motherland.117 This situation, when it became known to U.S. officials, offered compelling reasons to object Moscow’s requests to forcibly repatriate Soviet PoW who did not want to go back to their home country. For instance, hundreds of Soviet PoWs detained in camps controlled by the Western allies killed themselves upon being notified of their impending repatriation home.118 Over two days in June 1945, 134 Soviet soldiers committed suicide in an Austrian PoW camp. This situation echoed Marshal Zhukov who had told General Eisenhower in 1945 that ‘you have to be a brave man to be a coward in the Soviet army’.119 5. Conclusion War has played a crucial role in the history of American law and institutions.120A fortiori, the early Cold War years exerted a central influence, not only on U.S. domestic institutions, but also on how the USA defined the contours of their contribution to the reconstruction of the postwar world order, including the laws of war. The 1949 Geneva Conventions emerged out of this historical juncture as a product of the early Cold War. The texts of the Conventions embody the anxieties, fears, political ideologies and sensibilities that were animating the chancelleries in 1949. However, as this article argues, American Cold War anxieties not only influenced how American officials conceived of the Conventions, these anxieties also structured the conference debates and had a determinant influence on the content of the texts. The 1949 Geneva Conference looked both to the past and the future: it aimed to put an end to the Second World War while preparing for the next one. Almost 70 years after their adoptions, the Geneva Conventions still govern military conducts on battlefields today. It is indeed curious to see how American postwar debates on the renovation of the laws of war mirror current debates on the war against terrorism or the Islamic State. Both the Cold War and the War on Terror raise questions related to the characterization of the battlefield, the applicability of the laws of war against a reckless enemy, the identity of targetable individuals and the definition of their status—civilian or military—under IHL, the legality of the use of specific weapons, and, above all, how the economy of risk governs the application of humanitarian laws, then and now.121 Footnotes 1 Prisoners of War Committee, Minutes 10:30 A.M. to 12:00, 9 July 1947, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946–1949) Box 672. 2 D Bloxham, ‘Beyond ‘Realism’ and Legalism: A Historical Perspective on the Limits of International Humanitarian Law’ (2006) 14(4) Eur Rev 457, 463. 3 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287. 4 S Carvin, ‘Linking Purpose and Tactics: America and the Reconsideration of the Laws of War During the 1990s’ (2008) 9(2) Intl Stud Perspect 128. 5 G Best, War and Law Since 1945 (OUP 1994); C Rey-Schyrr, ‘Les conventions de Genève de 1949: Une percée decisive, 2ième partie’ (1999) 81(835) Intl Rev Red Cross 499. 6 JF Witt, ‘The Dismal History of the Laws of War’ (2011) 1 U California Irvine L Rev 895, 896–97. 7 JH Quataert, ‘War-Making and Restraint by Law: The Formative Years, 1864-1914’ in R Chickering, D Showalter and H van de Ven (eds), The Cambridge History of War: Volume 4 – War and the Modern World (CUP 2012) 142; HS Levie, ‘History of the Law of War on Land’ (2000) 82 Intl Rev Red Cross 339. 8 A Alexander, ‘A Short History of International Humanitarian Law’ (2015) 26(1) Eur J Intl L 109; S Keefer, ‘"Explosive Missals”: International Law, Technology, and Security in Nineteenth-Century Disarmament Conferences’ (2014) 21 War Hist 445. 9 G Mantilla, ‘Conforming Instrumentalists: Why the USA and the United Kingdom Joined the 1949 Geneva Conventions’ (2017) 28(2) Eur J Intl L 483. 10 M Mazower, ‘The End of Eurocentrism’ (2014) 40(4) Crit Inq 298. 11 With regards to the 1948 UDHR, see L Henkin, ‘The Universal Declaration and the Cold War’ (1998) 97(2) APA Newsletters 90. 12 D Kennedy, Of War and Law (Princeton UP 2006); GJ Ikenberry, After Victory: Institutions, Strategic Restraints, and the Rebuilding of Order after Major Wars (Princeton UP 2001) ch 6. 13 D Kennedy, ‘Modern War and Modern Law’ (2006) 12 Intl L Theory 55, 74; F Mégret, ‘War and the Vanishing Battlefield’ (2011) 9 Loyola U Chicago Intl L Rev 131. 14 R Brucken, A Most Uncertain Crusade: the United States, the United Nations, and Human Rights, 1941-1953 (Northern Illinois UP 2013); O Barsalou, La Diplomatie de l’universel: la guerre froide, les États-Unis et la genèse de la Déclaration universelle des droits de l’Homme, 1945-1948 (Bruylant 2012). 15 C Rey-Schyrr, ‘Les conventions de Genève de 1949 : Une percée décisive, 1ère partie’ (1999) 81(834) Intl Rev Red Cross 214. 16 ibid 215. 17 DP Forsythe, The Humanitarians: The International Committee of the Red Cross (Cambridge UP 2005); JD Armstrong, ‘The International Committee of the Red Cross and Political Prisoners’ (1985) 39 Intl Org 615. 18 P La Porte, ‘Humanitarian Assistance during the Rif War (Morocco, 1921-6): The International Committee of the Red Cross and “an Unfortunate Affair”’ (2016) 89(243) Hist Res 114; M Stibbe, ‘The Internment of Civilians by Belligerent States during the First World War and the Response of the International Committee of the Red Cross’ (2006) 41(1) J Contemp Hist 6. 19 D Warner, ‘Naming and Shaming: The ICRC and the Public/Private Divide’ (2005) 34(2) Millennium: J Intl Stud 449; DP Forsythe, ‘Naming and Shaming: The Ethics of ICRC Discretion’ (2005) 34(2) Millennium: J Intl Stud 461. 20 N Wylie, ‘The Sound of Silence: The History of the International Committee of the Red Cross as Past and Present’ (2002) 13(4) Diplomacy & Statecraft 192. 21 Forsythe (n 17) 52. 22 Y Sandoz, ‘Max Huber and the Red Cross’ (2007) 18(1) Eur J Intl L 171. 23 ibid 196. 24 D Schindler and J Toman (eds), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions, and Other Documents (Martinus Nihjoff 1988) 339. 25 Max Huber, Acting President of the International Committee of the Red Cross, to James F Byrnes, Secretary of State, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 5 September 1945) Box 2386. 26 Albert Clattenburg Jr, Chairman of the American Delegation, to the Secretary of State, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 26 August 1947) Box 2386, 9; Donald Russel, Assistant Secretary of State, to James Forrestal, Secretary of the Navy, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 6 November 1945) Box 2386. 27 Best (n 5) 90. 28 Unknown (with the concurrence of Hilldring, Fahy and Hickerson, legal advisors to the Department of State) to Dean Acheson, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 20 March 1947) Box 2386. 29 Averell Harriman, American Ambassador to the Soviet Union, to the Secretary of State, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 12 December 1945) Box 2386. 30 Dean Acheson, Acting Secretary of State, to the American Embassy in Moscow, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 25 January 1946) Box 2386. 31 United States Participation in Preliminary Unofficial Discussions Concerning the Revision of Conventions Governing Treatment of Prisoners of War, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 19 December 1945) Box 2386. 32 Dean Acheson, Acting Secretary of State, to Harold L. Ickes, Secretary of the Interior, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 25 January 1946) Box 2386. 33 Untitled document (Interdepartmental Prisoners of War Fact Sheet), no date, RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69) Box 4. 34Re Yamashita (1946) 327 US 1. 35 Convention relative to the Treatment of Prisoners of War, 27 July 1929, 118 LNTS 343 (was replaced by the Third 1949 Geneva Convention). Art 60 reads as follow: ‘At the commencement of a judicial hearing against a prisoner of war, the detaining Power shall notify the representative of the protecting Power as soon as possible, and in any case before the date fixed for the opening of the hearing. The said notification shall contain the following particulars: (a) Civil status and rank of the prisoner; (b) Place of residence or detention; (c) Statement of the charge or charges, and of the legal provisions applicable. If it is not possible in this notification to indicate particulars of the court which will try the case, the date of the opening of the hearing and the place where it will take place, these particulars shall be furnished to the representative of the protecting Power at a later date, but as soon as possible and in any case at least three weeks before the opening of the hearing.’ 36 Bailey to Kuppinger, Memorandum, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 15 February 1946) Box 2386. 37 Witt (n 6) 899 (‘Today, there are more than 3,400 judge advocates in the U.S. Army Judge Advocate General’s corps alone. That’s not even counting the thousands more in the Department of Defense, the State Department, the CIA, and the White House’). 38 Rey-Schyrr (n 15) 218. 39 ibid 229. 40 Embassy of the Union of Socialist Soviet Republics to Count Bernadotte, President of the Central Committee of the Swedish Red Cross, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot 59D539, 17 August 1948) Box 5; F Bugnion, ‘The Geneva Conventions of 12 August 1949: From the 1949 Diplomatic Conference to the Dawn of the New Millenium’ (2000) 76(1) Intl Aff 41, 43. 41 Clattenburg (n 26) 9. 42 Seventeenth International Red Cross Conference at Stockholm, Sweden, 20–30 August 1948. Report of the United States Delegation Compiled by William McCahon, Division of Protective Services, Department of State, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot 59D539, 15 December 1948) Box 5. 43 Best (n 5). 44 See n 42. 45 ibid. 46 Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims, 21 April–12 August 1949. Report of the United States Delegation Prepared by William McCahon, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot 59D539, 3 October 1949, Geneva, Switzerland) Box 5. 47 Clattenburg (n 26) 7. 48 ibid 15. 49 ibid 15–16. 50 For a similar reason, the International Law Commission of the United Nations refused to add the laws of war on its agenda the day before the opening of the 1949 Geneva Conference 1949 in H Lauterpacht, ‘The Problem of the Revision of the Law of War’ (1952) 29 British YB Intl L 360. 51 Clattenburg (n 26) 9. For similar views, see JA Gutteridge, ‘The Geneva Conventions of 1949’ (1949) 26 British YB Intl L 294; JS Pictet, ‘The New Geneva Conventions for the Protection of War Victims’ (1951) 45(3) AJIL 462; JL Kunz, ‘The Geneva Conventions of August 12, 1949’ in GA Lipsky (ed), Law and Politics in the World Community: Essays on Hans Kelsen’s Pure Theory and Related Problems in International Law (University of California Press 1953) 279. 52 Q Wright, ‘International Law and Ideologies’ (1954) 48(4) AJIL 616; HJ Berman, ‘The Challenge of Soviet Law’ (1948) 62(2) Harv L Rev 220; HJ Berman, ‘The Challenge of Soviet Law: III. Law of New Type’ (1949) 62(3) Harv L Rev 449; K Wilk, ‘International Law and Global Ideological Conflict: Reflections on the Universality of International Law’ (1951) 45(4) AJIL 648. 53 F Hirsch, ‘The Soviet at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order’ (2008) 113(3) Am Hist Rev 701. 54 FM Marx, a specialist of totalitarian regime and legal commentator, feared that the imminence of a Third World War may create an anti-democratic drift in the USA in ‘Effects of International Tension on Liberty under Law’ (1948) 48(4) Colum L Rev 555. On the fear that communism and totalitarianism may influence the U.S. legal system, see LK Adler and TG Paterson, ‘Red Fascism: The Merger of Nazi Germany and Soviet Russia in the American Image of Totalitarianism, 1930’s – 1950’s’ (1970) 75(4) Am Hist Rev 1046; H Belz, ‘Changing Conceptions of American Constitutionalism in the Era of World War II and the Cold War’ (1972) 59(3) J Am Hist 640, 641; RA Primus, ‘A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought’(1996) 106(2) Yale LJ 423; M Raymond, ‘Rejecting Totalitarianism: Translating the Guarantees of Constitutional Criminal Procedure’ (1998) 76(4) NCL Rev 1193; CJ Landauer, ‘Deliberating Speed: Totalitarian Anxieties and Postwar Legal Thought’ (2000) 12(2) Yale JL & Humanities 171; D Cipley, Liberalism in the Shadow of Totalitarianism (Harvard UP 2006). 55 Address to Be Made by John Foster Dulles before the National Publishers Association, Papers of Benjamin V. Cohen, Library of Congress (17 January 1947) Box 8, Folder: John Foster Dulles; OA Westad, The Global Cold War: Third World Interventions and the Making of Our Time (CUP 2005); M Hunt, Ideology and American Foreign Policy (Yale UP 1988) 116, 124. 56 Memorandum for the Secretary of Agriculture – Resume of World Situation (Prepared by Secretary Marshall), RG – 59, Decimal File, 1945-1949, 711.61 – 1-147 to 711.61 – 4-3048 (12 November 1947) Box 3321. 57 In the context of the 1948 UDHR, see O Barsalou, ‘The Cold War and the Rise of an American Conception of Human Rights, 1945-1948’ in P Slotte and M Halme-Tuomisaari (eds), Revisiting the Origins of Human Rights (CUP 2015) 362. 58 Northwestern University Commencement Address to Be Delivered by John Foster Dulles at Evanston, Illinois, Papers of Benjamin V. Cohen, Library of Congress (18 June 1947) Box 8, Folder: John Foster Dulles. 59 This might explain why U.S. delegates were shocked by ‘Soviet behavior’ which was marked by a willingness to cooperate and to reach an agreement at the early stages of the negotiations. Contrary to what the Americans had experienced at the UN, Soviet delegates did not object to the draft articles and even agreed to work in collaboration with the Spanish, then under Franco’s Dictatorship. American Consulate in Geneva to the Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 3 July 1949) Box 677. The Soviet behavior was described as follow: ‘more significant was approach Soviet followed endeavor gain point. Most cordial. No desk pounding. Referred to the fact that on most issues this Conference US-USSR together particularly effort maintain so far as possible Stockholm draft. General Slavine [Soviet Chief of Mission] in almost pleading tone urged in closing remarks mutual appreciation and respect for other all future dealings’ [sic]. 60 U.S. Consulate in Geneva to the Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General. Executive Division, 1920-1975 (2 May 1949) Box 3. 61 Dean Acheson to Berlin and London (Secret Telegram), RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69, 30 March 1949) Box 4. 62 Clattenburg (n 26) 11. 63 American Embassy in Moscow to the Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 13 May 1949) Box 677. 64 For similar reflections with regard to the colonization of human rights by Cold War anxieties, see Oral History Interview with Durward V Sandifer (29 May 1973, Harry S Truman Library) 100. Sandifer believed ‘that the cold war did color the nature of the debate that took place [in the United Nations Human Rights Commission]’; Henkin (n 11) (Emphasis in the original). 65 M Evangelista and H Shue (eds), The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones (Cornell UP 2014). 66 TD Biddle, ‘Air Power’ in M Howard, GJ Andreopoulos and MR Shulman (eds), The Laws of War: Constraints on Warfare in the Western World (Yale UP 1994) 140, 140. 67 CS Maier, ‘Targeting the Cities: Debates and Silences about the Aerial Bombing of World War II’ (2005) 87(859) Intl Rev Red Cross 429, 434. 68 EV Hull, A Scrap of Paper: Breaking and Making International Law during the Great War (Cornell UP 2014). 69 R Overy, The Bombing War: Europe 1939-1945 (Allen Lane 2013). 70 Maier (n 67) 439. 71 L Nurick, ‘The Distinction Between Combatant and Noncombatant in the Law of War’ (1945) 39(4) AJIL 680, 689. 72 NCW Dunbar, ‘The Legal Regulation of Modern Warfare’ (1954) 40 Transaction of the Grotius Society 83, 89. 73 F Bugnion, ‘Droit de Genève et droit de La Haye’ (2001) 83(844) Intl Rev Red Cross 901. 74 American Consulate in Geneva to Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Executive Division, 1920-1975, 18 June 1949) Box 3. 75 In April 1950, an appeal of the ICRC to the parties to the Geneva Conventions in the Committee highlighted the Committee’s uneasiness in dealing with this subject-matter. It revealed that the organization was not competent to address this issue and that the laws of war ultimately fell under the exclusive purview of state sovereignty in Bugnion (n 73) 912. 76 Dean Acheson to the American Consulate in Geneva, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 8 July 1949) Box 677. 77 ibid. 78 Minutes of Conference Held in State Department at 4:00 P.M., RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 7 July 1949) Box 669. 79 ibid. 80 American Consulate in Geneva to the Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 11 July 1949) Box 677. 81 Dean Acheson to the American Consulate in Geneva (for Yingling), RG – 59, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 5 August 1949) Box 677. 82 Verbatim Report of the Thirty-Four Plenary Meeting held on August 9 1949 at 10 a.m. Draft Resolution Proposed by the Delegation of the Union of Soviet Socialist Republics (CDG/PLEN.131) and Motion of Inadmissibility of that Draft (CDG/PLEN.177), Legal Adviser Records relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69, August 9 1949) 3, Box 7 [Draft Resolution Proposed by the Delegation of the Union of Soviet Socialist Republics]. 83 ibid 3. 84 JL Kunz, ‘The Laws of War’ (1956) 50(2) AJIL 313, 333. 85 ibid. 86 Lauterpacht (n 50) 369–73. See also Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), 1996 ICJ 226 (8 July 1996) and M Koskenniemi, ‘Faith, Identity and the Killing of the Innocent: International Lawyers and Nuclear Weapons’ (1997) 10(1) Leiden J Intl L 137. 87Draft Resolution Proposed by the Delegation of the Union of Soviet Socialist Republics (n 82) 11. 88 Richard S Paterson, Bombing of Civilians. A Survey of Policy and Practice Since 1937, Research Project No 156, Division of Historical Policy Research, Office of Public Affairs, Department of State, RG – 59, International Organization Files of Herbert A Fierst, 1946-1954 (Entry 697, Lot File 55D560, 24 May 1950) Box 5. 89 ibid 90. 90 ibid 91. 91 PJ Springer, ‘American Prisoner of War Policy and Practice from the Revolutionary War to the War on Terror’ (Unpublished PhD dissertation, Texas A&M University 2006) 169. 92 N Naimark, The Russians in Germany: A History of the Soviet Zone of Occupation, 1945-1949 (Harvard UP 1995); B Wasserstein, Barbarism and Civilization: A History of Europe in Our Time (OUP 2007) 356–57. For the Soviet version, see G Ginsburgs, ‘Laws of War and War Crimes on the Russian Front during World War II: The Soviet View’ (1960) 11(3) Soviet Stud 253, 278–79. 93 TK Nenniger, ‘United States Prisoners of War and the Red Army, 1944-1945: Myths and Realities’ (2002) 66(3) J Mil Hist 761. 94 RD Buhite, ‘Soviet-American Relations and the Repatriation of Prisoners of War, 1945’ (1973) 35(3) Historian 384, 396. 95 The case of the French ‘Malgré-Nous’ (‘despite us’) is in this regard very interesting, see G Moullec, ‘Alliés ou ennemis? Le GUPVI-NKVD, le Komintern et les ‘malgré-nous’: le destin des prisonniers de guerre français en URSS (1942-1955)’ (2001) 42(2/4) Cahiers du Monde Russe 667. 96 Memorandum of Conversation between Mr. Graves (Counsellor, British Embassy), Mr. Allison (Dept. of State) and Mr. Green (Dept. of State), RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69, 30 December 1949) Box 4. 97 American Embassy in Tokyo to the Secretary of State, RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69, 27 December 1949) Box 4. 98 Communication of TASS Concerning the Completion of Repatriation of Japanese Prisoners of War from the Soviet Union, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot File 59D539, 9 June 1950). 99 The Repatriation of Japanese from Areas under the Control and Influence of the USSR, no date, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the PoW Conference of the International Red Cross Committee, Entry 1555, Lot 59D539) Box 4. 100 Documentation Concerning German Prisoners of War Sentenced in the USSR, Bonn, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot 59D539, 1 September 1950) 4, Box 3. 101 SP MacKenzie, ‘The Treatment of Prisoners of War in World War II’ (1994) 66(3) J Mod Hist 487, 489. 102 ibid 504. 103 ibid 511–12. 104 S Carvin, ‘Caught in the Cold: International Humanitarian Law and Prisoners of War During the Cold War’ (2006) 11(1) J Conflict & Security L 67, 70. 105 Mackenzie (n 101) 513; J Dower, War Without Mercy: Race and Power in the Pacific War (Pantheon 1986); F Yap, ‘International Laws of War and Civilian Internees of the Japanese in British Asia’ (2016) 23(4) War in History 416. 106 The first paragraph of Art 118 reads as follow: ‘Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph. In either case, the measures adopted shall be brought to the knowledge of the prisoners of war.’ 107 N Wylie and J Crossland, ‘The Korean War and the Post-war Prisoner of War Regime, 1945–1956’ (2016) 23(4) War in History 439. 108 Memorandum. Legal Considerations Underlying the Position of the [sic (incomplete title)], RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot 68D69, 1 September 1954) Box 9. 109 RR Baxter, ‘Asylum to Prisoners of War’ (1953) 30 British YB Intl L 489 (Baxter was a member of the American delegation to the Geneva Conference of 1949); CE Lundin Jr, ‘Repatriation of Prisoners of War: The Legal and Political Aspects’ (1953) 39 ABA J 559 (Lundin was a member of the Office of the Judge AG of the Navy). 110 Carvin (n 104) 81. 111 GJV Dillon, ‘The Genesis of the 1949 Convention Relative to the Treatment of Prisoners of War’ (1950) 5 Miami LQ 40, 46. 112 JP Charmatz and HM Witt, ‘Repatriation of Prisoners of War and the 1949 Geneva Convention’ (1952) 62 Yale LJ 391. 113 JAC Gutteridge, ‘The Repatriation of Prisoners of War’ (1953) 2(2) ICLQ 207, 212–13. 114 ibid 215. 115 CJ Nolan, ‘Americans in the Gulag: Detention of US Citizens by Russia and the Onset of the Cold War, 1944-1949’ (1990) 25 J Contemp Hist 523, 532. 116 ibid 530. 117 Carvin (n 104) 71. 118 Nolan (n 115) 531–32. 119 GIAD Draper, ‘An Outline of Soviet Military Law’ (1959) 5 Mil LR 1, 11. 120 ML Dudziak, ‘Making Law, Making War, Making American’ in C Tomlins and M Grossberg (eds), The Cambridge History of Law in America: Volume 3, The Twentieth Century and After (1920–) (CUP 2008) 680, 682–83. 121 TW Smith, ‘Protecting Civilians… or Soldiers? Humanitarian Law and the Economy of Risk in Iraq’ (2008) 9 Intl Stud Perspect 144. © Oxford University Press 2017; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

Preparing for War: The USA and the Making of the 1949 Geneva Conventions on the Laws of War

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Abstract

Abstract The emerging Cold War exerted a decisive influence on both the structure and the text of the 1949 Geneva Conventions. More specifically, this article argues that emerging Cold War anxieties not only influenced how American officials conceived of the 1949 Geneva Conventions but also structured the conference debates and had a determinant influence on the content of the texts. The 1949 Geneva Conventions (and Conferences) thus looked both to the past and the future: it aimed to put an end to the Second World War while preparing for the next one. Future war may involve ideology1 1. Introduction America’s War on Terror, the treatment of captured prisoners and, more recently, the military operations against the Islamic States in the Middle East or the routinized recourses to drone strikes have fueled numerous debates relating to the U.S. government’s compliance with the laws of war. Among them, the advent of new military technologies and the repeated refusals to extend the 1949 Geneva Conventions protections to prisoners caught in the War on Terror have highlighted the inability of international humanitarian law (IHL) to seemingly constrain military powers such as the USA.2 Most debates have revolved around the legality and legitimacy of U.S. (and their allies’) military operations since September 2001 considering the provisions of the 1949 Geneva Conventions3 and whether the latter should be modernized to better meet the new military challenges of the 21st century.4 The advent of new weaponry and the treatment of individuals in warfare raised similar concerns in the USA and elsewhere in Europe in the wake of the Second World War. A few months before the end of the Second World War, during the winter of 1945, the International Committee of the Red Cross (ICRC) signaled to the Allied Powers its intention of convoking an international conference to discuss the modernization of the laws of war.5 The U.S. government heard those calls to modernize the laws of war in the wake of the Second World War. The following pages inquire into the role that the U.S. government played in this process of rejuvenating the laws of war between 1945 and 1949. The American historian John Fabian Witt recently argued that the historiography of the laws of war ‘inspires dismay’ because international norms have so often been violated. Yet, this history ‘seems to have made little impression on the way in which observers think about the laws of war. The history of the field barely exists’.6 Historians, humanitarians and lawyers alike traditionally emphasize the benefits set out in the Conventions7 rather than the actual diplomatic discussions and the national strategic motives that undergird the provisions.8 In addition, few works have explored in detail the Geneva gatherings beyond the final documents and the official travaux préparatoires.9 Building on U.S. Department of State (DoS) legal memorandums from the early Cold War years (1945–1949), the article analyzes how and why the American government contributed to the reconstruction of the laws of warfare in the wake of the Second World War and the role these norms play in postwar U.S. foreign policy. The U.S. policies on this issue coalesced at a critical historical juncture. The end of the Second World War and the creation of the United Nations (UN) signaled, on the one hand, the end of European ascendancy over global politics.10 On the other hand, the drafting process of the Geneva Conventions took place in the shadow of rising Cold War tensions between the American government and the Communist world.11 The quest for modernizing the laws of war between 1945 and 1949 paralleled the emergence of a network of global institutions exhibiting constitutional characteristics whose contours were strongly influenced by American diplomats.12 Initially considered as a trivial and technical diplomatic exercise, the Geneva Meetings gained importance with the rise of the Cold War and the widening of the ideological divide between the USA and the Communist world. For the USA, the Geneva process offered an opportunity to define the battlefield of the Cold War not only in military terms but also in legal terms.13 As this article argues, the Geneva Conventions of 1949 reflected both American postwar humanitarian concerns and the uncertain, albeit anticipated and transformative, effects the Cold War would have on the application of basic humanitarian principles in nuclear age warfare. In this article, Section 2 explores the reasons that led the USA to participate in the Geneva Conferences between 1946 and 1949. Section 3 analyzes the U.S. government during the diplomatic meetings and its relations with the Soviet Union. Based on the evolution of the American thinking pertaining to the limitations on the use of aerial bombardments and the repatriation of prisoners of war (PoW), Section 4 examines how the drafting of the Geneva Conventions and the discussions over these two issues took place in the shadow of the rising Cold War and U.S. global security concerns. In conclusion, the project of modernizing the laws of war paralleled similar developments in the field of international human rights taking place at the UN Commission on Human Rights which culminated with the adoption of the Universal Declaration of Human Rights (UDHR) in December 1948, nine months before the signing of the Geneva Conventions. In both cases, the USA played a defining role in drafting these two documents.14 For the American government, the new laws of war—like the UDHR in 1948—emerged in 1949 as a political repertoire for fighting a new kind of war for humanity’s heart and soul against the Communist world. 2. The ICRC and the Diplomatic Conference of 1949 Adopted on 25 June 1945, the UN Charter meant that recourses to force in international relations would be strictly limited to situations of self-defence or those authorized by the Security Council. Meanwhile, the ICRC was busy preparing for future wars.15 Technological developments in the fields of armament and military tactics and the totalitarian nature of the Second World War questioned the relevance of the pre-1945 laws of war regime in future military conflicts.16 As the Second World War was coming to an end, the ICRC, a Swiss-based non-governmental organization (NGO),17 informed sovereign states—many of which were still involved in the war—of its desire to modernize the laws of war. ICRC’s calls to rebuild the laws of war were not simply about salvaging warfare ethics from the trenches. The reputation of the organization was also at stake. The ICRC wanted to proceed speedily with the revision process, for the organization had been suspected before and during the Second World War of being soft on violence.18 In this regard, the Committee’s silence19 during the Allies campaigns of unrestricted bombings against German cities exemplified some of the moral and political dilemmas the Organization had to face.20 Its record on the Holocaust was also heavily criticized.21 Max Huber, the President of the ICRC between 1928 and 1944 and a Swiss international lawyer, exercised a decisive influence on the organization’s equivocal actions.22 For example, in the context of the Second Italo-Abyssinian war (1935–1936), Huber refused to disclose information on Italy’s violation of the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.23 He wanted to preserve ICRC’s privileged access to European chancelleries, which rested on the neutrality of the organization even in the face of grave and patent violations of the law of war. Given its historical record, the ICRC had good reasons to speed up the postwar diplomatic negotiations over the revision of the laws of war and to renew its commitment to humanizing warfare. The task was, however, daunting. On 5 September 1945, Huber, the then Acting President of the Committee, requested the assistance of the 1929 Convention Relative to the Treatment of Prisoners of War24 signatories and of National Red Cross societies in collecting information on the legal issues faced by states during the war, the solutions they had devised and the loopholes they had identified in the existing corpus juris.25 In Washington, U.S. DoS advisors carefully and dutifully studied Huber’s invitation. Upon its reception, DoS officials, with the help of the War, Navy, Justice and Interior Departments as well as the American Red Cross, initiated a revision process of how the American military interpreted and applied the laws of war in warfare.26 During the first months of the process, the American government showed little concern regarding Soviet involvement in the diplomatic conference. The Second World War had just come to an end and tensions between the two former allies had not yet erupted.27 At first, American officials considered the revision of the laws of war as purely a technical and legal problem. They saw ‘no reason for bothering the President to approve a technical commission’.28 British advisors, contrary to their American homologs, rather believed that the laws of war were only matters of high politics. The ICRC’s action on the ground and its growing diplomatic role—moreover by a non-British private entity—interfered with the sovereign organization of warfare and mingled with national security matters. Most invited states nonetheless shared the American view. They genuinely believed that the violence of the war could be constrained by simply revising, modernizing and expanding the scope of existing codes of warfare. However, the rise of American Cold War anxieties in the ensuing months dramatically changed DoS officials’ perception of the ICRC’s diplomatic campaign and of the laws of war as such. In the fall of 1945, the American government did not seem particularly preoccupied by the Red Army’s and more generally Moscow’s attitude toward the rules of warfare. However, as the wartime cooperation between the two military powers withered away between 1946 and 1949, the U.S. officials started scrutinizing and reporting on the Soviet Union’s behavior during the diplomatic negotiations. The first question raised was how Moscow would react to the ICRC’s invitation. Soviet participation was crucial if the ICRC wished to achieve any meaningful international consensus on the new conventions. In December 1945, Andrei Vishinski, the Soviet representative to the UN, explained Moscow’s attitude toward the ICRC’s project in a speech given before the UN. In the opinion of the Soviet government an unfavorable impression would be made on world public opinion if already in the first days of peace the governments of the chief countries which participated in the war should concern themselves with the preparation of such an agreement concerning war prisoners.29 The U.S. legal advisors believed that the Soviet Union could hardly contribute to the revision process since they had no experience in applying the laws of war conventions. The USSR had not ratified the 1929 Geneva Convention on the Treatment of Prisoners of War and had not established official relations with the ICRC. Therefore, their role in preliminary discussions was deemed superfluous.30 American officials nonetheless recognized that the preliminary discussions would have to focus on developing a more realistic and practicable propositions than the ones that had already been put forward by several national societies of the Red Cross. This would contribute to enhancing the likelihood of Soviet ratification of the future conventions, something the U.S. government soon came to consider essential.31 In January 1946, after six months, the American government finally agreed to participate in preliminary discussions. The Truman administration, under the impulse of Dean Acheson,32 the then Under Secretary of State, and with the help of the American Red Cross, created the Interdepartmental Prisoners of War Committee (POWC). The Committee brought together representatives from the War, Navy, Justice, State and Interior Departments to discuss policy-making regarding PoW then held by the American military in Europe, in Asia and the USA.33 For the American military, the experience acquired during the Second World War had clearly highlighted the lacunae of the 1929 Geneva Convention, and the consequent need to devise principles better suited to modern warfare. The treatment of PoW was one of the major postwar issues faced by the American government. The tens of thousands of foreign PoW captured during the Second World War and detained in a vast network of camps spread across America as well as in Europe and Asia, were a constant source of preoccupation for the U.S. officials. Legal uncertainties pertaining to the treatment of PoWs by the U.S. military constituted another major source of concern. For example, in the 1946 Yamashita case,34 the U.S. Supreme Court had held that Article 60 of the 1929 Geneva Convention35 was applicable only to individuals who were subjected to judicial proceedings for offenses committed while being PoW and not to acts committed before their capture. This ruling ‘was inconsistent’ with the declared American postwar policy of protecting ‘Americans under sentence of death in Germany’.36 DoS officials were also concerned about the protection of American PoW detained abroad and facing criminal charges. Given the reciprocal nature of many laws of war obligations, the U.S. officials feared that the Supreme Court ruling in Yamashita may send mixed signals to foreign armies and governments and had, consequently, a negative impact on the fate of thousands of U.S. PoW detained abroad. American officials therefore felt an urgent need to reaffirm certain basic international legal principles regarding PoWs’ treatment and to modernize some other rules to better protect U.S. military captured abroad. It is important to note that the discussions leading up to the Geneva Conferences did not attract the attention of senior policy-makers in the Truman administration. Dean Acheson’s involvement, who would later become the Secretary of State in 1949, appeared in this regard as exceptional. Between 1945 and 1949, most American representatives were from either the Department of Defense or the DoS and occupied minor positions within their respective departments. Given the importance of the laws of war nowadays in U.S. politics, it is rather surprising that the U.S. delegation was devoid of any high-ranking officials.37 This was probably due to the perceived technical nature of the laws of war. However, for the growing community of international lawyers, the Geneva conferences were part of a greater project aimed at rebuilding the discipline and the fundamental structures of international law. In the meanwhile, the ICRC tirelessly pursued its work. After sending the invitation letter in the fall of 1945, the ICRC organized during the summer of 1946 a preliminary conference in Geneva. More than 140 delegates from various national Red Cross societies—with the notable exception of the Soviet, Japanese and German national Red Cross and Red Crescent societies—and the League of Red Cross societies—a distinct organization from the ICRC that was engaged in a covert battle against the ICRC for the control of the international humanitarian movement—gathered to discuss ICRC’s proposals for a future diplomatic conference. Very few national delegations opposed ICRC’s various proposals.38 The ICRC, national delegations and national Red Cross societies officially met for another round of diplomatic negotiations at the Seventeenth International Red Cross Conference held in Stockholm at the end of August 1948. Chaired by Folke Bernadotte, the President of the Swedish Red Cross society, the Conference brought together representatives from 52 national Red Cross societies and 50 governments.39 The Soviet Union declined to participate because the ICRC had, according to Moscow, failed to denounce fascist war crimes committed before and during the war as well as in the Nazi concentration camps. Moreover, Moscow seemed suspicious of the ICRC’s involvement in the Spanish civil war.40 Soviet distrust of the ICRC dated back to the Bolshevik Revolution during which the NGO had helped political opponents seeking asylum outside Russia and shielded others from summary executions or some other forms of reprisals by the Communist revolutionaries.41 Other communist satellite countries such as Bulgaria and Hungary followed the Soviet example and did not attend the Stockholm conference.42 But that did not prevent the participants from adopting four draft conventions and to ask the ICRC to coordinate with national governments in anticipation of the final conference which opened on 21 April 1949 in Geneva. The conventional narrative of the Geneva process tells us a story in which states were generally sharing a common vision for the humanization of warfare, despite the difficulties and misunderstandings normally arising during such diplomatic gathering. This account gives the impression that the different national delegations worked together in an environment free of political and ideological tensions. To a certain extent, these assertions appear valid,43 but the American archival documents consulted reveal a different story—one in which political, military and legal considerations were closely intertwined. For the American administration, the laws of war were integrated into a broader scheme aimed at ‘defending international law’ against the spread of ‘anti-universalistic values’ and Communist ideology. The laws of war thus became an important tool for legitimizing in the public opinion Cold War military decisions and operations conducted by the U.S. government, and for criticizing Communist military practices on the battlefield. 3. The U.S. Attitude at the Geneva Conference of 1949 A. A ‘Pragmatic and Realistic’ Approach to the Laws of War? The American delegation defended a humanitarian and legalistic vision of the laws of war in the preparatory conferences leading to the 1949 Geneva conference. Like other national delegations, their central objective was to devise clearly delineated rules and principles ‘to mitigate individual suffering in the event of future wars’.44 This formalistic façade, however, hid deeply entrenched fears that the negotiations may become politicized. For example, the DoS urged the American delegation in Stockholm to focus solely on the traditional humanitarian work performed by the Red Cross and to strongly oppose any potential move to discuss ‘political questions’ without defining what political questions meant.45 Equally mysterious is the fact that the U.S. delegation’s final report on the Geneva Conference did not mention important questions raised by the advent of the Cold War. The report’s neutral tone rather seemed to follow the instructions given for the Conference of Stockholm held the previous year: not a single word was dedicated to U.S.—Communist issues, even if Moscow had become a central preoccupation for the U.S. delegation.46 This seemingly apolitical approach also contrasts with the eloquent report prepared by Albert H. Clattenburg, who was then the Chairman of the American delegation to the first Conference of Governmental Experts held in Geneva in 1947. Despite the two years that separate the 1947 and 1949 conferences, this report eloquently illuminates the rising Cold War anxieties animating the U.S. officials’ thinking about the modernization of the laws of war. Clattenburg provided the Secretary of State with a detailed description of the various issues that could not be included in the official report. In his view, the American delegation had adopted a realistic and pragmatic approach to the laws of war, which diverged from that of their European counterparts coming from the liberated countries who bore the more conventional humanitarian understanding of the laws of war. In fact, the American delegation seemed to never have considered the laws of war as a panacea in times of conflict. These [Europeans from liberated countries] delegates exhibited to a surprising degree reliance upon international legislation as a means of eliminating evil from the minds of man, and of confidence that precisely the correct formula would prevent a dishonorable enemy from warning [sic] the interpretation of such legislation to mean whatever might suit him.47 For the American administration, the revision of the Geneva conventions mainly served two purposes. First, it was important to renew the traditional humanitarian commitment. As such, the American government shared the opinions of their foreign counterparts on the laws of war’s humanitarian function. Yet, these humanitarian convictions were imbued with a strong dose of realism. The aims of such war conventions were the mitigation, ‘even if slight, in the suffering of individuals by setting up a standard of decency which no government will want to openly violate’.48 This official (but secret) position adopted by the American delegation in 1947 openly contradicts the conventional wisdom on the origins and purposes of the laws war. In fact, Clattenburg seems to have recognized that violence in times of war remained taboo, and that there was nothing international law could do about it. At best, it could compel states and armies to hide their wartime violence from public scrutiny. Second, the laws of war were also necessary for maintaining the morale of soldiers, PoW and civilian populations in times of conflict. Clattenburg’s thoughts on this issue are worth quoting at length: To the weaker nations, to the members of the armed forces, to populations in areas likely to be overrun by hostile troops, the humanitarian conventions represent a sort of insurance policy. They hope not to collect on it but it helps allay fears. The negotiation of such agreements has become part of the normal pattern of behaviour of governments. To proclaim that it is futile to follow this standard or to attempt to renegotiate the insurance will not only heighten the impact of the fear … but might add to those of desperation. And certainly professed failure in the lesser field would impair confidence in the possibility of success of the United Nations in the larger field of trying to forestall entirely any war more serious than a local revolution or a tribal dispute.49 Preserving the morale of the military and civilians in times of war became a crucial element in American thinking, given the context of rising Cold War tensions with the Communist bloc. The 1948 Berlin crisis and the Communist takeover of Czechoslovakia reflected rising political and military tensions between the two wartime Allies. It also signaled the possibility of a new war on the European continent. This possibility influenced how the USA conceived of the renewal of the laws of war. For example, from 1947 onward, Communist bloc representatives participating in the preparatory conferences attempted to pass the so-called ‘peace resolution’ aimed at prohibiting the use of war as a mean of settling dispute, and the use of weapons of mass destruction. Even though this was essentially considered as a strategic move—the Soviet Union exploded its first atomic bomb only in August 1949—discussions on these issues nonetheless created important diplomatic problems for the U.S. government. The Communist argument underlying the resolution was relatively simple and straightforward: why is it necessary to discuss PoW and civilians’ protection since the UN organization had been established to prevent war?50 For the American delegation, this meant, on the one hand, that a vote against such a resolution could obviously be interpreted as a vote for the continuance of war as a political weapon, which would, as a consequence, delegitimize the newly created UN. On the other hand, allowing such an important ‘political issue’ to be dragged into the diplomatic process might derail the negotiations and prevent states from reaching an agreement of the new laws of war. According to Clattenburg, these questions had to be avoided at any cost, for ‘the basic, continuing problems involved in the humanitarian conventions are deemed legal, military, administrative and, of course, humanitarian. In other words, they are intrinsically technical, not political’.51 Rising Cold War tensions highlighted the inherently political nature of the legal rules being devised and law’s capacity to define the contours of future battlefields, identify legitimate targets and determine the proper means of warfare. This shift was reflected in the changing American attitude toward the Soviet Union throughout the negotiation process leading to the adoption of the Geneva Conventions in August 1949. B. American Attitude toward the Soviet Union Soon after the Second World War, international law was, according to a contemporary writer, split between two universalistic competing ideologies.52 This was the conclusion Professor Quincy Wright, advisor to Justice Jackson at the Nuremberg trials, arrived at in 1954. His remarks reflected the intellectual environment within which U.S. government advisors reimagined international law after the Second World War. The Nuremberg trials, which were contemporary to the Geneva Conference, had shown how ideologically loaded and contentious the laws of war could be in a time of rising Cold War tensions.53 The expansion of Soviet totalitarianism in Europe and Asia in the years following the end the Second World War became a permanent source of anxieties for the U.S. government as well as for American political and juridical institutions and values.54 American foreign policy-makers shared those anxieties. According to John Foster Dulles, then a U.S. representative to the UN, the Soviet Union was both a military threat and a destabilizing ideological force to the postwar world order built by the USA.55 Taking the example of the UN, the Secretary of State, George C. Marshall, feared the weakening of U.S. leadership in world politics, the postwar allied unity and the newly established UN.56 A firm response against the global threat of communism was required and international law constituted one of the mediums used to convey this message around the world. The American government became the self-designated leader of this mission.57 In the words of J.F. Dulles, ‘since it so, a first phase of our quest for peace must be to restore our moral influence …. We [the United States] shall, I hope, continue to be imbued with a righteous faith and a sense of mission in the world.’58 Neither the Geneva Conventions nor the American delegations dispatched to Geneva evaded these Cold War anxieties.59 In the spring of 1949, American delegates anticipated that the Soviet delegation would play the role of the ‘great humanitarians and possibly endeavor to embarrass those who oppose working drafts on practical and legal ground’.60 Dean Acheson, then Secretary of State, was convinced that the Soviet delegate would use the Conference as a ‘sound board [for] call[ing] further attention to East-West controversial issues’.61 However, most national delegations knew that the Geneva Conventions would be meaningless without the Soviet ratification. Moscow could not simply be sidetracked. And this was a major problem in the opinion of the U.S. advisors, since Soviet absence from the negotiating table at the two previous conferences of 1947 and 1948 had greatly increased Soviet bargaining power at the 1949 Geneva conference ‘by putting a premium on their mere attendance and sharpening up the necessity of their concurrence in the final drafts’.62 For example, on 13 May 1949, in an article published in Pravda, the official newspaper of the Soviet communist party, a journalist strongly criticized British and American positions. The former was described as a colonialist and imperialist state striving to limit the conventions, while the latter was qualified as uncooperative and systematically opposed to all Soviet proposals that ‘one would think … would [have] receive[d] support [from] all civilized honest people’.63 Diplomatic euphemisms and platitudes hid a deeper ideological division between Washington and Moscow. According to the American archives, the legal constraints on aerial bombardments (considering the advent of the atomic bomb during the Second World War) and the problem of PoW repatriation highlighted how the news laws of war had become a battleground over the memory, the meaning of the Second World War and the definition of the contours of the new international order. In 1949, the Cold War had colonized the diplomatic process as well as the norms to be included in the Geneva Conventions.64 4. The Geneva Conventions Enter the Cold War A. Aerial Bombardments and the Atomic Bomb Air power radically modified the way military strategists and lawyers thought about war. This new technology eroded classical warfare distinction between civilians and the military.65 For example, the Zeppelin raids over London during the First World War demonstrated how war could be carried behind enemy lines.66 It also raised questions regarding the legality, notwithstanding the legitimacy, of such military means.67 Aerial bombardments thus blurred the frontiers between military necessity and humanitarianism by questioning the legal status of civilian populations in times of war. While this problem became obvious during the First World War,68 it gained saliency during the Second World War. By 1945, more than 500 000 Europeans had been killed in aerial bombings which also brought material havoc, mostly in urban areas.69 The U.S. military made extensive use of incendiary bombs against German and Japanese cities, causing widespread devastation and condemning tens of thousands of people to incineration.70 In Geneva, the American delegation wanted to avoid an open condemnation of the Allies’ unrestricted bombing onto enemies’ cities. As Lester Nurick, a U.S. Judge Advocate General’s lawyer, put it in 1945, ‘when [aerial bombardment] was profitable to do so, belligerents have not generally refrained from bombing because of vague doubts as to legality’.71 This was an important issue since the Nuremberg and Tokyo trials were still fresh in the minds of the delegates gathered in Geneva and that the USA and its allies wished to avoid public trials that might trouble the legacy of U.S. war efforts both in Europe and in Asia. Indeed, during the Nuremberg trials, ‘it is significant that no attempt was made by the Allies … to stigmatise as unlawful the method of aerial bombing employed by Germany which included the indiscriminate use of flying bombs and rockets’.72 Another reason to avoid discussions over aerial bombardments in Geneva might have been that the American military certainly wished to keep its military options open in future wars: strategic bombings had become incredibly important and constituted the main way to deploy nuclear weapons. As American delegates had expected, Soviet diplomats, soon after the opening of the Geneva Conference in 1949, introduced a draft resolution condemning weapons of ‘mass-extermination’ and, by extension, aerial bombings. In fact, the Soviet Union and its allies never stopped condemning and criticizing the narrowness of the Conference’s purview and its focus on devising rules for the protection of war victims (PoW, civilians, wounded, etc.) without discussing the rules pertaining to the general conduct of hostilities as such.73 While American officials involved in diplomatic activities were accustomed to Soviet behavior, the delegates remained nonetheless puzzled over the exact meaning of ‘mass-extermination’ and whether it included the atomic bomb or not. Although SOVDEL [Soviet Delegation] avoided direct reference to secret weapon and refused to give concrete examples of cases intended to be covered by phrases ‘means of exterminating the civilian population’, it is abundantly clear from debate on article 29A that the Soviet are seeking to outlaw aerial bombardments by characterizing them as a serious crime.74 The U.S. opposition to the Soviet view on the issue ‘of means of exterminating the civilian population’ quickly became deeply entrenched. This created a feeling of uneasiness among delegations at the Conference about how the ICRC should handle the issues of indiscriminate bombings and the use of atomic weapons.75 In a long memorandum, Dean Acheson, the U.S. Secretary of State, urged the American delegation to ‘kill’ at any cost the highly anticipated Soviet resolution on this issue. In any case, according to Acheson, since the control of atomic energy was already under the jurisdiction of the UN Commission of Atomic Energy, it was deemed unproductive and unnecessary to discuss atomic weapons during the Geneva Conference.76 The Soviet stance on the issue would prove to be somehow contradictory because, few weeks after the adoption of the Conventions, on 29 August 1949, Moscow detonated its first atomic bomb in the Soviet Socialist Republic of Kazakhstan. This situation echoed back to a major wartime contentious issue between the two Great Powers. While the Americans secretly developed their nuclear capacities, suspicions were arising in 1949 that the Manhattan Project had been infiltrated by Soviet agents. Dean Acheson and many other U.S. officials suspected that a stand-alone convention on the prohibition of atomic weapons would provide no assurances that the Soviet or any other country would refrain from developing their own atomic arsenal. Furthermore, Acheson doubted ‘that nations not known to have atomic weapons, but who might have them, would carry out their obligations’ or even, that nations would be prevented from manufacturing those weapons.77 He worried about the security needs of the USA—and the firm opposition of the Joint Chief of Staff to any prohibition on the use of the atomic bomb78—since such a ban on nuclear weapons ‘would not protect the world against atomic warfare’. Indeed, Acheson believed that the Soviet resolution was an obvious attempt to seek endorsement of the repeatedly rejected Soviet position in a forum where the members did not have the necessary technical competence to discuss atomic energy-related issues. More troublesome for the Americans, the Soviet resolution aimed at publicly embarrassing them.79 Following Acheson’s reactions, the American delegation became ever more anxious about potential Soviet proposals to completely ban atomic weapons. As a result, the American consulate in Geneva decided to probe other delegations’ views on the issue of atomic weapon. Extensive discussions were held with French, British and Latin American representatives to secure their support for an eventual vote against the Soviet resolution to ban ‘weapons of mass-extermination’.80 Even in the closing days of the conference, American delegates were still anxiously honing in their arguments against the Soviet proposal. The American counterargument suggested that the UN had already inherited the responsibility to manage atomic energy and that the ‘curtain countries’—as they called the Communist Regimes of Eastern Europe—had stubbornly refused to cooperate with the rest of the world. Because American delegates needed to avoid giving the impression of defending the military use of weapons of ‘mass-extermination’, all responsibilities for failing to reach an agreement on the use of these weapons had to be dismissed on the Soviet Union because of their obstinate refusal to cooperate with the UN Atomic Commission.81 The Soviet resolution was raised in the plenary meeting on 9 August, three days before the end of the Conference. The Soviet representative, General Slavine, remarked on that occasion that the ‘draft Civilian Convention does not protect the civilian population against the effect of modern weapons of warfare, such as the atomic bomb, and bacteriological, chemical, and other means of mass destruction’.82 Slavine called upon national delegates to condemn the use of such methods of warfare and to declare that these weapons of mass extermination were contrary to elementary principles of international law.83 What seemed to be clear for Moscow, at least in appearance, divided international lawyers of that time and it still does today. While almost every international lawyer had condemned the Nazi Germany uses of V1 and V2 missiles against the civilian populations of London, the same international lawyers remained silent on the legality of the use of the nuclear weapons.84 Josef Kunz provided the readers of the American Journal of International Law with a rather provocative response as to why international lawyers had refused to condemn the use of the atomic bomb. ‘The reason for this silence seems to be the fact the atomic bombs were first used by the United States’.85 Hersch Lauterpacht, one of the most prominent human rights lawyers of that period, expressed mixed feelings as well. He linked the use of atomic weapons to the question of aerial bombardments and concluded that the legality of both were beyond a categorical answer. International law was powerless to prevent the use this type of weapons and that their regulation rested within the ambit of sovereign states.86 The U.S. legal advisors, thus, somewhat succeeded in defusing the crisis over weapons of mass-extermination. However, by leaving the obvious outside the purview of the Conventions, the U.S. government contributed to making the laws of war more amenable to Cold War anxieties which legitimated, albeit implicitly, the use of technologically advanced weaponry with devastating potentials for civilians. Prohibitions on the use of advance military strategies and technologies in future conflicts was a direct challenge to postwar U.S. military doctrine. The proposal, however, well suited the Soviet Union which relied heavily on conventional military forces stationed in Europe and Asia. The American delegation along with British and Commonwealth countries support defeated the Soviet proposal. Arguing on procedural ground, Lieutenant Colonel Hodgson, the Australian representative, claimed that, since the draft resolution had not been previously submitted to the Bureau of the international conference, it fell outside the ambit of the original invitation from the Swiss Federal Council, and could not, as a consequence, be studied in plenary meeting. Hodgson also reminded his colleagues that a similar resolution had previously been rejected at the meeting held in Stockholm in 1948. According to the Australian delegate, the Soviets were using a ‘back-door method [for] getting the conference to accept something which is completely unacceptable’.87 After heated discussions, the draft was ultimately declared inadmissible by a vote of 35 against 9 with 5 abstentions. A few months after the Geneva Conference, the Policy Planning Staff and the Office of the Secretary of State jointly sponsored an important study on the practice of bombing civilian populations in order to provide legal and policy guidance to military advisors.88 The subject of atomic weapons was again left outside the purview of the study. Unsurprisingly, the author’s main conclusions endorsed the legality and legitimacy of Allied bombings of Germany, Italy and Axis occupied territories. ‘When the United States Air Forces commenced operations in Europe, they directed their attacks at specific industries and services, particularly at those contributing to the support of the enemy’s armed forces … In the course of these operations, civilian casualties were inevitable.’89 The most interesting conclusion of this report is, however, the ex post facto justification for the bombardments of civilian populations. According to the report, the legality of aerial bombardments could be legally justified if analyzed in conjunction with the idea of total war. World War II contributed to the classic understanding of the art of war of [sic] a new principle, namely, the principle of capacity for war. Gradually during World War II it came to be recognized that the enemy’s economy and industry, from which the enemy’s armed drew their strength and substance, were essential parts of the enemy’s capacity for waging war and that as such they were valid and important objectives of attack in the all-out effort to win the war.90 The U.S. government was preparing the country for a potential war against the Soviet Union in which weapons of ‘mass-extermination’ and aerial bombardments would play an important role. These suspicions were soon confirmed when in late August 1949, just a few days after the conclusion of the Geneva Conference, the Soviet Union exploded its first atomic bomb, First Lightning, a replica of Fat Man, the American atomic bomb that had exploded over Nagasaki four years earlier. While the Geneva Conventions remained silent on the legality of the use of nuclear weapons and aerial bombardments, the US military, building on this gap, redesigned the contours of future battlefields to include the enemy’s economy and industry as ‘essential parts of the enemy’s capacity for waging war’. In addition to preserving the power to use indiscriminate bombings and atomic weapons, the repatriation of prisoners was among the most important and urgent problem facing the U.S. delegation at Geneva. With the rising tensions between the Western and Communist blocs, this issue soon became a major bone of contention between Moscow and Washington. B. The Repatriation of PoW Repatriation of the Second World War American and foreign PoW was another major postwar issue for the U.S. administration and military as well as for American public opinion. As with the questions of aerial bombardments and weapons of mass extermination, the Soviet threat and Cold War anxieties provided the ideological context which partly dictated the American delegation’s legal standing on PoW issues at the Geneva Conference. While the U.S. army captured more than 7 000 000 PoW during the Second World War and was generally respectful of the old and established rules of warfare,91 the Red Army, seemingly, did not appear to be evenly bound by the customary rules regarding the treatment of PoW.92 At the Yalta Conference, held in February 1945, the U.S. and Soviet governments agreed to repatriate all citizens, not just PoWs, at the end of the war. In the closing weeks of the Second World War, this agreement quickly vanished into thin air and soon major hurdles arose. For example, Moscow denied it was detaining American PoWs while the American government objected that more than 23 000 American PoWs were in fact being detained by the Red Army. Although this account remains unsettled,93 the Soviet Union behavior left a strong impression from 1945 onward on U.S. policy-makers about the nature of the Communist regime and its reliability in times of war.94 Until the 1949 Geneva Conference, the U.S. government pretended to have dutifully respected the Yalta agreement and the repatriation rule contained in Article 75 of the 1929 Geneva Convention which provides that every PoW must be repatriated at the end of a conflict. The provision nevertheless remained silent as to which country should the PoW be repatriated. State parties to the 1929 Convention seemed to have tacitly agreed that the country of repatriation was the country of origin or citizenship of the prisoner of war.95 However, in Geneva, this question became entangled with Cold War politics. With a deteriorating collaboration and the fear of an imminent war with the Soviet Union, the U.S. policy-makers sought to introduce more protection for PoW in the Third Geneva Convention of 1949 by broadening the responsibilities of the detaining state toward PoWs. Protecting and repatriating U.S. soldiers detained in Europe and Asia was not the sole issue needing to be addressed. As an occupying power in Germany and in Japan, the U.S. administration was also responsible, as a wartime Ally, for the security of German and Japanese PoW held in Soviet labor camps disseminated across the country. Thus, the PoW problem had a worldwide dimension. According to U.S. figures, there were approximately 375 000 Japanese PoW still held in Soviet prisons more than four years after the Pacific War had ended,96 many of which were apparently used as free labor and for propaganda purposes.97 Moscow contested U.S. figures and evidence. TASS, the Soviet news agency, indicated in a press release that the repatriation of Japanese PoW from the USSR had been completed in full and accused the USA of detracting the attention of world opinion from the U.S. policy directed ‘toward the economic and political enslavement of Japan’.98 As it was stated in an unsigned American report, there was a ‘startling discrepancy’ of more than 300 000 men between, on the one hand, the Supreme Commander of the Allied Powers (SCAP) and Japanese government statistics and, on the other hand, the TASS statement.99 Similarly, treatment of German PoW by the Soviet military also appeared extremely difficult. Thousands of German PoWs were held in Soviet labor camps, tortured and condemned to death following fake criminal procedures.100 In both cases—German and Japanese—ideology and practical motives played a fundamental role in the treatment of PoW.101 Unlike the Western front,102 on the Eastern Europe front, ideological and racial considerations determined the fate of thousands of Germans and Soviet PoW.103 For instance, thousands of German PoW were used to build the subway system in Moscow, construct power plants, railway tracks and the defence industries located in the Ural Mountains.104 In Asia, the literature suggests that U.S. and Japanese PoW policies sharply differed. The U.S. military generally respected the 1929 Geneva Conventions, while the Japanese exerted all kinds of violence (torture, enslavement, etc.) against American PoW for pragmatic and xenophobic reasons.105 Early in the months following the end of the Second World War, the American administration the Soviet Union have reached an agreement on soldiers’ repatriation—soldiers would be sent back to their countries of origin regardless of their wishes—but the rise of the Cold War dramatically changed that. Soon after the 1949 Geneva Conference, the U.S. legal advisors started arguing that Article 118 of the Third Geneva Convention106 provides the right to a detaining power to grant asylum to a PoW or at least to offer him the choice of his repatriation destination. This interpretation ran contrary to the shared understanding over this specific issue which prevailed in Geneva. This understanding was subsequently confirmed after the Korean War.107 In a 1954 memorandum, DoS legal advisors produced an extensive review of state practise and the historical development of the laws of war related to the treatment of PoW. Their memorandum concluded that prisoners have a right to refuse to be repatriated to their country of origin and consequently have a right to choose the country of repatriation.108 Contemporary American commentators concurred with that position.109 This reading of Article 118 suggested ‘that the drafters of the Geneva Conventions had not considered the fact that some POWs may not wish to return home’.110 However, this argument did not seem to convince everyone within the U.S. administration. For example, General Dillon, a member of the U.S. delegation to the Geneva Conference of 1949, argued a few months after the adoptions of the Conventions that the Third Geneva Convention was more ‘logic[al]’ and ‘clear’ because it was establishing absolute standards for the treatment of PoW and giving less latitude and discretion to the detaining power than the 1929 Geneva Convention.111 Moscow’s intransigence and literal interpretation of Article 118 of the Third Convention112 not only contrasted with that held by many American officialsbut also highlighted the adverse domestic effect the defection of thousands of PoW could have on the Soviet Union. Moscow’s reading suggested that every prisoner, without exception, had to be repatriated, with the logical consequence that this might include forcible repatriation for soldiers who resist it. Moscow invoked three reasons to justify its claim.113 First, the language used in the Third Convention was peremptory and therefore, did not allow a ‘humanitarian’ exception as the Americans claimed. Second, states participating in the 1949 Geneva Conference refused to include in the final draft an Austrian amendment providing that ‘prisoners of war … shall be entitled to apply for their transfer to another country which is ready to accept them’. Therefore, the USA could hardly appeal to state opinion juris as the basis for a humanitarian exception. Finally, according to the Soviet reading, Article 7 of the Third Geneva Convention of 1949, which provides that no prisoner of war may renounce the rights secured for them under the convention, did not allow room for humanitarian considerations. Both American and British military lawyers rejected these arguments. First, forcible repatriation was not explicitly included in the Convention. States had the responsibility to repatriate every prisoner of war to his home country. However, in cases where a prisoner was obstinately refusing repatriation, did the detaining state have the discretionary power to grant asylum to the said prisoner? Second, with regard to the Austrian amendment, the rejection of the amendment in 1947 by the Diplomatic Conference did not mean that states had excluded the possibility that individual consideration could, in exceptional cases, never be envisaged. Thirdly, some underlined the fallacy of the Soviet argumentation regarding Article 7 which was designed, as they argued, to prevent situations where PoW could forcibly be retained after the hostilities on the pretext that they had renounced their rights to repatriation. Article 7 was also drafted in a way to prevent PoW from seeking asylum in the detaining country or to ensure the forcible repatriation of PoW, who had genuine reasons to fear political persecution.114 Soviet approval of forcible repatriation of its PoW and citizens had important and compelling humanitarian consequences for the American government. First, the U.S. and Soviet governments did not define the meaning of ‘Soviet citizen’ in the Yalta agreement. This created problems as to how to qualify a ‘Soviet citizen’ as such. Those who resided in the territories annexed in 1939–1940—the Baltic states and Poland—were also claimed by Moscow as Soviet citizens, but the USA never recognized the legality of the Soviet territorial claims in these areas.115 Thousands of so-called ‘Soviet citizens’ were thus ‘repatriated’ and sent directly to prisons in contravention of the Third Convention.116 In addition, Stalin’s Order 270 stated that every Red Army soldier who allowed himself to be captured alive was considered a traitor to the motherland.117 This situation, when it became known to U.S. officials, offered compelling reasons to object Moscow’s requests to forcibly repatriate Soviet PoW who did not want to go back to their home country. For instance, hundreds of Soviet PoWs detained in camps controlled by the Western allies killed themselves upon being notified of their impending repatriation home.118 Over two days in June 1945, 134 Soviet soldiers committed suicide in an Austrian PoW camp. This situation echoed Marshal Zhukov who had told General Eisenhower in 1945 that ‘you have to be a brave man to be a coward in the Soviet army’.119 5. Conclusion War has played a crucial role in the history of American law and institutions.120A fortiori, the early Cold War years exerted a central influence, not only on U.S. domestic institutions, but also on how the USA defined the contours of their contribution to the reconstruction of the postwar world order, including the laws of war. The 1949 Geneva Conventions emerged out of this historical juncture as a product of the early Cold War. The texts of the Conventions embody the anxieties, fears, political ideologies and sensibilities that were animating the chancelleries in 1949. However, as this article argues, American Cold War anxieties not only influenced how American officials conceived of the Conventions, these anxieties also structured the conference debates and had a determinant influence on the content of the texts. The 1949 Geneva Conference looked both to the past and the future: it aimed to put an end to the Second World War while preparing for the next one. Almost 70 years after their adoptions, the Geneva Conventions still govern military conducts on battlefields today. It is indeed curious to see how American postwar debates on the renovation of the laws of war mirror current debates on the war against terrorism or the Islamic State. Both the Cold War and the War on Terror raise questions related to the characterization of the battlefield, the applicability of the laws of war against a reckless enemy, the identity of targetable individuals and the definition of their status—civilian or military—under IHL, the legality of the use of specific weapons, and, above all, how the economy of risk governs the application of humanitarian laws, then and now.121 Footnotes 1 Prisoners of War Committee, Minutes 10:30 A.M. to 12:00, 9 July 1947, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946–1949) Box 672. 2 D Bloxham, ‘Beyond ‘Realism’ and Legalism: A Historical Perspective on the Limits of International Humanitarian Law’ (2006) 14(4) Eur Rev 457, 463. 3 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287. 4 S Carvin, ‘Linking Purpose and Tactics: America and the Reconsideration of the Laws of War During the 1990s’ (2008) 9(2) Intl Stud Perspect 128. 5 G Best, War and Law Since 1945 (OUP 1994); C Rey-Schyrr, ‘Les conventions de Genève de 1949: Une percée decisive, 2ième partie’ (1999) 81(835) Intl Rev Red Cross 499. 6 JF Witt, ‘The Dismal History of the Laws of War’ (2011) 1 U California Irvine L Rev 895, 896–97. 7 JH Quataert, ‘War-Making and Restraint by Law: The Formative Years, 1864-1914’ in R Chickering, D Showalter and H van de Ven (eds), The Cambridge History of War: Volume 4 – War and the Modern World (CUP 2012) 142; HS Levie, ‘History of the Law of War on Land’ (2000) 82 Intl Rev Red Cross 339. 8 A Alexander, ‘A Short History of International Humanitarian Law’ (2015) 26(1) Eur J Intl L 109; S Keefer, ‘"Explosive Missals”: International Law, Technology, and Security in Nineteenth-Century Disarmament Conferences’ (2014) 21 War Hist 445. 9 G Mantilla, ‘Conforming Instrumentalists: Why the USA and the United Kingdom Joined the 1949 Geneva Conventions’ (2017) 28(2) Eur J Intl L 483. 10 M Mazower, ‘The End of Eurocentrism’ (2014) 40(4) Crit Inq 298. 11 With regards to the 1948 UDHR, see L Henkin, ‘The Universal Declaration and the Cold War’ (1998) 97(2) APA Newsletters 90. 12 D Kennedy, Of War and Law (Princeton UP 2006); GJ Ikenberry, After Victory: Institutions, Strategic Restraints, and the Rebuilding of Order after Major Wars (Princeton UP 2001) ch 6. 13 D Kennedy, ‘Modern War and Modern Law’ (2006) 12 Intl L Theory 55, 74; F Mégret, ‘War and the Vanishing Battlefield’ (2011) 9 Loyola U Chicago Intl L Rev 131. 14 R Brucken, A Most Uncertain Crusade: the United States, the United Nations, and Human Rights, 1941-1953 (Northern Illinois UP 2013); O Barsalou, La Diplomatie de l’universel: la guerre froide, les États-Unis et la genèse de la Déclaration universelle des droits de l’Homme, 1945-1948 (Bruylant 2012). 15 C Rey-Schyrr, ‘Les conventions de Genève de 1949 : Une percée décisive, 1ère partie’ (1999) 81(834) Intl Rev Red Cross 214. 16 ibid 215. 17 DP Forsythe, The Humanitarians: The International Committee of the Red Cross (Cambridge UP 2005); JD Armstrong, ‘The International Committee of the Red Cross and Political Prisoners’ (1985) 39 Intl Org 615. 18 P La Porte, ‘Humanitarian Assistance during the Rif War (Morocco, 1921-6): The International Committee of the Red Cross and “an Unfortunate Affair”’ (2016) 89(243) Hist Res 114; M Stibbe, ‘The Internment of Civilians by Belligerent States during the First World War and the Response of the International Committee of the Red Cross’ (2006) 41(1) J Contemp Hist 6. 19 D Warner, ‘Naming and Shaming: The ICRC and the Public/Private Divide’ (2005) 34(2) Millennium: J Intl Stud 449; DP Forsythe, ‘Naming and Shaming: The Ethics of ICRC Discretion’ (2005) 34(2) Millennium: J Intl Stud 461. 20 N Wylie, ‘The Sound of Silence: The History of the International Committee of the Red Cross as Past and Present’ (2002) 13(4) Diplomacy & Statecraft 192. 21 Forsythe (n 17) 52. 22 Y Sandoz, ‘Max Huber and the Red Cross’ (2007) 18(1) Eur J Intl L 171. 23 ibid 196. 24 D Schindler and J Toman (eds), The Laws of Armed Conflicts: A Collection of Conventions, Resolutions, and Other Documents (Martinus Nihjoff 1988) 339. 25 Max Huber, Acting President of the International Committee of the Red Cross, to James F Byrnes, Secretary of State, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 5 September 1945) Box 2386. 26 Albert Clattenburg Jr, Chairman of the American Delegation, to the Secretary of State, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 26 August 1947) Box 2386, 9; Donald Russel, Assistant Secretary of State, to James Forrestal, Secretary of the Navy, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 6 November 1945) Box 2386. 27 Best (n 5) 90. 28 Unknown (with the concurrence of Hilldring, Fahy and Hickerson, legal advisors to the Department of State) to Dean Acheson, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 20 March 1947) Box 2386. 29 Averell Harriman, American Ambassador to the Soviet Union, to the Secretary of State, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 12 December 1945) Box 2386. 30 Dean Acheson, Acting Secretary of State, to the American Embassy in Moscow, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 25 January 1946) Box 2386. 31 United States Participation in Preliminary Unofficial Discussions Concerning the Revision of Conventions Governing Treatment of Prisoners of War, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 19 December 1945) Box 2386. 32 Dean Acheson, Acting Secretary of State, to Harold L. Ickes, Secretary of the Interior, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 25 January 1946) Box 2386. 33 Untitled document (Interdepartmental Prisoners of War Fact Sheet), no date, RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69) Box 4. 34Re Yamashita (1946) 327 US 1. 35 Convention relative to the Treatment of Prisoners of War, 27 July 1929, 118 LNTS 343 (was replaced by the Third 1949 Geneva Convention). Art 60 reads as follow: ‘At the commencement of a judicial hearing against a prisoner of war, the detaining Power shall notify the representative of the protecting Power as soon as possible, and in any case before the date fixed for the opening of the hearing. The said notification shall contain the following particulars: (a) Civil status and rank of the prisoner; (b) Place of residence or detention; (c) Statement of the charge or charges, and of the legal provisions applicable. If it is not possible in this notification to indicate particulars of the court which will try the case, the date of the opening of the hearing and the place where it will take place, these particulars shall be furnished to the representative of the protecting Power at a later date, but as soon as possible and in any case at least three weeks before the opening of the hearing.’ 36 Bailey to Kuppinger, Memorandum, RG – 59, Central Decimal File, 1945-1949, 514.2A12/1-145 to 514.2 Geneva/8-2347 (File 514.2A16 International Red Cross Diplomatic Conference, Geneva, 15 February 1946) Box 2386. 37 Witt (n 6) 899 (‘Today, there are more than 3,400 judge advocates in the U.S. Army Judge Advocate General’s corps alone. That’s not even counting the thousands more in the Department of Defense, the State Department, the CIA, and the White House’). 38 Rey-Schyrr (n 15) 218. 39 ibid 229. 40 Embassy of the Union of Socialist Soviet Republics to Count Bernadotte, President of the Central Committee of the Swedish Red Cross, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot 59D539, 17 August 1948) Box 5; F Bugnion, ‘The Geneva Conventions of 12 August 1949: From the 1949 Diplomatic Conference to the Dawn of the New Millenium’ (2000) 76(1) Intl Aff 41, 43. 41 Clattenburg (n 26) 9. 42 Seventeenth International Red Cross Conference at Stockholm, Sweden, 20–30 August 1948. Report of the United States Delegation Compiled by William McCahon, Division of Protective Services, Department of State, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot 59D539, 15 December 1948) Box 5. 43 Best (n 5). 44 See n 42. 45 ibid. 46 Diplomatic Conference for the Establishment of International Conventions for the Protection of War Victims, 21 April–12 August 1949. Report of the United States Delegation Prepared by William McCahon, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot 59D539, 3 October 1949, Geneva, Switzerland) Box 5. 47 Clattenburg (n 26) 7. 48 ibid 15. 49 ibid 15–16. 50 For a similar reason, the International Law Commission of the United Nations refused to add the laws of war on its agenda the day before the opening of the 1949 Geneva Conference 1949 in H Lauterpacht, ‘The Problem of the Revision of the Law of War’ (1952) 29 British YB Intl L 360. 51 Clattenburg (n 26) 9. For similar views, see JA Gutteridge, ‘The Geneva Conventions of 1949’ (1949) 26 British YB Intl L 294; JS Pictet, ‘The New Geneva Conventions for the Protection of War Victims’ (1951) 45(3) AJIL 462; JL Kunz, ‘The Geneva Conventions of August 12, 1949’ in GA Lipsky (ed), Law and Politics in the World Community: Essays on Hans Kelsen’s Pure Theory and Related Problems in International Law (University of California Press 1953) 279. 52 Q Wright, ‘International Law and Ideologies’ (1954) 48(4) AJIL 616; HJ Berman, ‘The Challenge of Soviet Law’ (1948) 62(2) Harv L Rev 220; HJ Berman, ‘The Challenge of Soviet Law: III. Law of New Type’ (1949) 62(3) Harv L Rev 449; K Wilk, ‘International Law and Global Ideological Conflict: Reflections on the Universality of International Law’ (1951) 45(4) AJIL 648. 53 F Hirsch, ‘The Soviet at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order’ (2008) 113(3) Am Hist Rev 701. 54 FM Marx, a specialist of totalitarian regime and legal commentator, feared that the imminence of a Third World War may create an anti-democratic drift in the USA in ‘Effects of International Tension on Liberty under Law’ (1948) 48(4) Colum L Rev 555. On the fear that communism and totalitarianism may influence the U.S. legal system, see LK Adler and TG Paterson, ‘Red Fascism: The Merger of Nazi Germany and Soviet Russia in the American Image of Totalitarianism, 1930’s – 1950’s’ (1970) 75(4) Am Hist Rev 1046; H Belz, ‘Changing Conceptions of American Constitutionalism in the Era of World War II and the Cold War’ (1972) 59(3) J Am Hist 640, 641; RA Primus, ‘A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought’(1996) 106(2) Yale LJ 423; M Raymond, ‘Rejecting Totalitarianism: Translating the Guarantees of Constitutional Criminal Procedure’ (1998) 76(4) NCL Rev 1193; CJ Landauer, ‘Deliberating Speed: Totalitarian Anxieties and Postwar Legal Thought’ (2000) 12(2) Yale JL & Humanities 171; D Cipley, Liberalism in the Shadow of Totalitarianism (Harvard UP 2006). 55 Address to Be Made by John Foster Dulles before the National Publishers Association, Papers of Benjamin V. Cohen, Library of Congress (17 January 1947) Box 8, Folder: John Foster Dulles; OA Westad, The Global Cold War: Third World Interventions and the Making of Our Time (CUP 2005); M Hunt, Ideology and American Foreign Policy (Yale UP 1988) 116, 124. 56 Memorandum for the Secretary of Agriculture – Resume of World Situation (Prepared by Secretary Marshall), RG – 59, Decimal File, 1945-1949, 711.61 – 1-147 to 711.61 – 4-3048 (12 November 1947) Box 3321. 57 In the context of the 1948 UDHR, see O Barsalou, ‘The Cold War and the Rise of an American Conception of Human Rights, 1945-1948’ in P Slotte and M Halme-Tuomisaari (eds), Revisiting the Origins of Human Rights (CUP 2015) 362. 58 Northwestern University Commencement Address to Be Delivered by John Foster Dulles at Evanston, Illinois, Papers of Benjamin V. Cohen, Library of Congress (18 June 1947) Box 8, Folder: John Foster Dulles. 59 This might explain why U.S. delegates were shocked by ‘Soviet behavior’ which was marked by a willingness to cooperate and to reach an agreement at the early stages of the negotiations. Contrary to what the Americans had experienced at the UN, Soviet delegates did not object to the draft articles and even agreed to work in collaboration with the Spanish, then under Franco’s Dictatorship. American Consulate in Geneva to the Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 3 July 1949) Box 677. The Soviet behavior was described as follow: ‘more significant was approach Soviet followed endeavor gain point. Most cordial. No desk pounding. Referred to the fact that on most issues this Conference US-USSR together particularly effort maintain so far as possible Stockholm draft. General Slavine [Soviet Chief of Mission] in almost pleading tone urged in closing remarks mutual appreciation and respect for other all future dealings’ [sic]. 60 U.S. Consulate in Geneva to the Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General. Executive Division, 1920-1975 (2 May 1949) Box 3. 61 Dean Acheson to Berlin and London (Secret Telegram), RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69, 30 March 1949) Box 4. 62 Clattenburg (n 26) 11. 63 American Embassy in Moscow to the Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 13 May 1949) Box 677. 64 For similar reflections with regard to the colonization of human rights by Cold War anxieties, see Oral History Interview with Durward V Sandifer (29 May 1973, Harry S Truman Library) 100. Sandifer believed ‘that the cold war did color the nature of the debate that took place [in the United Nations Human Rights Commission]’; Henkin (n 11) (Emphasis in the original). 65 M Evangelista and H Shue (eds), The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones (Cornell UP 2014). 66 TD Biddle, ‘Air Power’ in M Howard, GJ Andreopoulos and MR Shulman (eds), The Laws of War: Constraints on Warfare in the Western World (Yale UP 1994) 140, 140. 67 CS Maier, ‘Targeting the Cities: Debates and Silences about the Aerial Bombing of World War II’ (2005) 87(859) Intl Rev Red Cross 429, 434. 68 EV Hull, A Scrap of Paper: Breaking and Making International Law during the Great War (Cornell UP 2014). 69 R Overy, The Bombing War: Europe 1939-1945 (Allen Lane 2013). 70 Maier (n 67) 439. 71 L Nurick, ‘The Distinction Between Combatant and Noncombatant in the Law of War’ (1945) 39(4) AJIL 680, 689. 72 NCW Dunbar, ‘The Legal Regulation of Modern Warfare’ (1954) 40 Transaction of the Grotius Society 83, 89. 73 F Bugnion, ‘Droit de Genève et droit de La Haye’ (2001) 83(844) Intl Rev Red Cross 901. 74 American Consulate in Geneva to Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Executive Division, 1920-1975, 18 June 1949) Box 3. 75 In April 1950, an appeal of the ICRC to the parties to the Geneva Conventions in the Committee highlighted the Committee’s uneasiness in dealing with this subject-matter. It revealed that the organization was not competent to address this issue and that the laws of war ultimately fell under the exclusive purview of state sovereignty in Bugnion (n 73) 912. 76 Dean Acheson to the American Consulate in Geneva, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 8 July 1949) Box 677. 77 ibid. 78 Minutes of Conference Held in State Department at 4:00 P.M., RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 7 July 1949) Box 669. 79 ibid. 80 American Consulate in Geneva to the Secretary of State, RG – 389, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 11 July 1949) Box 677. 81 Dean Acheson to the American Consulate in Geneva (for Yingling), RG – 59, Records of the Department of Defense, Department of the Army, Office of the Provost Marshal General (Subject Files Relating to the Preparation of the Geneva Convention, 1946-1949, 5 August 1949) Box 677. 82 Verbatim Report of the Thirty-Four Plenary Meeting held on August 9 1949 at 10 a.m. Draft Resolution Proposed by the Delegation of the Union of Soviet Socialist Republics (CDG/PLEN.131) and Motion of Inadmissibility of that Draft (CDG/PLEN.177), Legal Adviser Records relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69, August 9 1949) 3, Box 7 [Draft Resolution Proposed by the Delegation of the Union of Soviet Socialist Republics]. 83 ibid 3. 84 JL Kunz, ‘The Laws of War’ (1956) 50(2) AJIL 313, 333. 85 ibid. 86 Lauterpacht (n 50) 369–73. See also Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), 1996 ICJ 226 (8 July 1996) and M Koskenniemi, ‘Faith, Identity and the Killing of the Innocent: International Lawyers and Nuclear Weapons’ (1997) 10(1) Leiden J Intl L 137. 87Draft Resolution Proposed by the Delegation of the Union of Soviet Socialist Republics (n 82) 11. 88 Richard S Paterson, Bombing of Civilians. A Survey of Policy and Practice Since 1937, Research Project No 156, Division of Historical Policy Research, Office of Public Affairs, Department of State, RG – 59, International Organization Files of Herbert A Fierst, 1946-1954 (Entry 697, Lot File 55D560, 24 May 1950) Box 5. 89 ibid 90. 90 ibid 91. 91 PJ Springer, ‘American Prisoner of War Policy and Practice from the Revolutionary War to the War on Terror’ (Unpublished PhD dissertation, Texas A&M University 2006) 169. 92 N Naimark, The Russians in Germany: A History of the Soviet Zone of Occupation, 1945-1949 (Harvard UP 1995); B Wasserstein, Barbarism and Civilization: A History of Europe in Our Time (OUP 2007) 356–57. For the Soviet version, see G Ginsburgs, ‘Laws of War and War Crimes on the Russian Front during World War II: The Soviet View’ (1960) 11(3) Soviet Stud 253, 278–79. 93 TK Nenniger, ‘United States Prisoners of War and the Red Army, 1944-1945: Myths and Realities’ (2002) 66(3) J Mil Hist 761. 94 RD Buhite, ‘Soviet-American Relations and the Repatriation of Prisoners of War, 1945’ (1973) 35(3) Historian 384, 396. 95 The case of the French ‘Malgré-Nous’ (‘despite us’) is in this regard very interesting, see G Moullec, ‘Alliés ou ennemis? Le GUPVI-NKVD, le Komintern et les ‘malgré-nous’: le destin des prisonniers de guerre français en URSS (1942-1955)’ (2001) 42(2/4) Cahiers du Monde Russe 667. 96 Memorandum of Conversation between Mr. Graves (Counsellor, British Embassy), Mr. Allison (Dept. of State) and Mr. Green (Dept. of State), RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69, 30 December 1949) Box 4. 97 American Embassy in Tokyo to the Secretary of State, RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot File 68D69, 27 December 1949) Box 4. 98 Communication of TASS Concerning the Completion of Repatriation of Japanese Prisoners of War from the Soviet Union, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot File 59D539, 9 June 1950). 99 The Repatriation of Japanese from Areas under the Control and Influence of the USSR, no date, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the PoW Conference of the International Red Cross Committee, Entry 1555, Lot 59D539) Box 4. 100 Documentation Concerning German Prisoners of War Sentenced in the USSR, Bonn, RG – 59, Bureau of Security and Consular Affairs (Records Relating to the Prisoners of War Conference of the International Red Cross Committee, Entry 1555, Lot 59D539, 1 September 1950) 4, Box 3. 101 SP MacKenzie, ‘The Treatment of Prisoners of War in World War II’ (1994) 66(3) J Mod Hist 487, 489. 102 ibid 504. 103 ibid 511–12. 104 S Carvin, ‘Caught in the Cold: International Humanitarian Law and Prisoners of War During the Cold War’ (2006) 11(1) J Conflict & Security L 67, 70. 105 Mackenzie (n 101) 513; J Dower, War Without Mercy: Race and Power in the Pacific War (Pantheon 1986); F Yap, ‘International Laws of War and Civilian Internees of the Japanese in British Asia’ (2016) 23(4) War in History 416. 106 The first paragraph of Art 118 reads as follow: ‘Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph. In either case, the measures adopted shall be brought to the knowledge of the prisoners of war.’ 107 N Wylie and J Crossland, ‘The Korean War and the Post-war Prisoner of War Regime, 1945–1956’ (2016) 23(4) War in History 439. 108 Memorandum. Legal Considerations Underlying the Position of the [sic (incomplete title)], RG – 59, Legal Adviser Records Relating to the Red Cross and Geneva Conventions, 1941-1967 (NND Project No 979139, Entry 5210, Lot 68D69, 1 September 1954) Box 9. 109 RR Baxter, ‘Asylum to Prisoners of War’ (1953) 30 British YB Intl L 489 (Baxter was a member of the American delegation to the Geneva Conference of 1949); CE Lundin Jr, ‘Repatriation of Prisoners of War: The Legal and Political Aspects’ (1953) 39 ABA J 559 (Lundin was a member of the Office of the Judge AG of the Navy). 110 Carvin (n 104) 81. 111 GJV Dillon, ‘The Genesis of the 1949 Convention Relative to the Treatment of Prisoners of War’ (1950) 5 Miami LQ 40, 46. 112 JP Charmatz and HM Witt, ‘Repatriation of Prisoners of War and the 1949 Geneva Convention’ (1952) 62 Yale LJ 391. 113 JAC Gutteridge, ‘The Repatriation of Prisoners of War’ (1953) 2(2) ICLQ 207, 212–13. 114 ibid 215. 115 CJ Nolan, ‘Americans in the Gulag: Detention of US Citizens by Russia and the Onset of the Cold War, 1944-1949’ (1990) 25 J Contemp Hist 523, 532. 116 ibid 530. 117 Carvin (n 104) 71. 118 Nolan (n 115) 531–32. 119 GIAD Draper, ‘An Outline of Soviet Military Law’ (1959) 5 Mil LR 1, 11. 120 ML Dudziak, ‘Making Law, Making War, Making American’ in C Tomlins and M Grossberg (eds), The Cambridge History of Law in America: Volume 3, The Twentieth Century and After (1920–) (CUP 2008) 680, 682–83. 121 TW Smith, ‘Protecting Civilians… or Soldiers? Humanitarian Law and the Economy of Risk in Iraq’ (2008) 9 Intl Stud Perspect 144. © Oxford University Press 2017; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of Conflict and Security LawOxford University Press

Published: Nov 30, 2017

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