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News Roundup 31 May – 6 June

June 9, 2021

West Africa’s Islamist insurgency: Fight at a critical stage

Caught in the middle: Peace activists in Cameroon try to end a brutal war

Will Israel be held accountable for war crimes?

UN calls on Sudan to move more swiftly on peace agreement

Pressuring junta, France suspends joint military operations with Malian forces

UN chief condemns deadly attacks targeting displaced people in DR Congo

Rise of armed civilian groups in Myanmar fuels fears of full-scale civil war

Mali: Military must ‘scrupulously’ respect human rights and free civilian leaders  

News Roundup 24 May – 30 May

June 2, 2021

Tools to protect civilians in conflict exist, but not the will to apply them, Lowcock tells Security Council

UN rights chief calls for inclusive peace process to end Palestine occupation

Biden urges ceasefire, end to ‘large-scale abuses’ in Tigray

Grave concerns over ‘dire’ and deteriorating situation in war-torn Tigray region

U.N. launches investigation into whether Israel, Hamas committed crimes

The young are key to avoiding old mistakes in Central African Republic

UN peacekeeper withdrawal leaves security vacuum in Darfur

Israel’s Gaza strikes may constitute ‘war crimes’: UN’s Bachelet

UN envoy warns of possible civil war in Myanmar, seeks talks

Tensions rise in Baghdad after arrest of militia commander

‘Lawmaking under Pressure’ Book Symposium – An Initial Response to Commentators

May 28, 2021

Giovanni Mantilla is University Lecturer in the Department of Politics and International Studies (POLIS) and Fellow of Christ’s College, Cambridge, and of the Lauterpacht Centre for International Law. His research investigates the politics of international lawmaking through multinational archival research, with emphasis on the international law of armed conflict and human rights law. It has appeared in leading academic journals, including International OrganizationEuropean Journal of International LawInternational Studies Quarterly, European Journal of International Law, and Journal of the History of International Law. Mantilla’s recently published book “Lawmaking under Pressure: International Humanitarian law and Internal Armed Conflict”  traces the origins and development of the international humanitarian treaty rules that now exist to regulate internal armed conflict and explores the global politics and diplomatic dynamics that led to the creation of such rules in 1949 and in the 1970s. The book was recently awarded the prestigious annual 2021 Francis Lieber prize from the American Society of International Law as the best book in the field of the law of armed conflict.

I am humbled by the generous comments of nine excellent readers of my book, Lawmaking under Pressure. Having worked on it for many years, to see this wide range of scholars and practitioners use superlative words to refer to it, is just thrilling. I can only hope that the book will eventually be seen as a “landmark history” and treated as an “indispensable source” across various fields.

This is an initial response to the readers’ comments. I cannot fully do them justice in this short format, but I aim to reach wide coverage by addressing some recurring themes.

As noted in my introductory post, I wrote Lawmaking under Pressure in the hopes of making interdisciplinary contributions across the fields of International Relations, International History, and International Law. For a junior scholar like me this was a gamble, took effort to achieve, and required deliberate choices and compromises.

Most obviously, despite my best interdisciplinary intentions, the book is clearly anchored in one discipline, International Relations (IR), and as some of the readers intuit, that choice brings with it virtues as well as vices.

From my perspective, the virtues of an IR anchoring are multiple. They include the ambition to develop a theoretical framework to explain the process of international humanitarian lawmaking for internal conflicts while envisioning a wider reach. Another is the fact that IR offers a clear set of plausible explanations through which I could organize the project at the start, and later use as foils (or platforms) to build my own argument.

A third virtue is methodological: increasing standards of evidence in IR historical/qualitative research compelled me to find as large and detailed a documentary corpus as I could in order to build  a precise and well-supported argument. This impetus (quite happily) sent me into several archives around the world.

The commentators’ general assessment indicates that the book succeeds on these fronts. That is, the central concepts and dynamics I theorize appear as useful for explaining not just humanitarian lawmaking but a larger array of lawmaking exercises, past and present, international and as domestic, even if doubts might remain as to the singular operation of social pressure (Boyd van Dijk) or of “forum isolation” (Verity Robson) in the production of particular legal outcomes.

Similarly, all readers praise the book’s thorough treatment of the historical process, even when, as discussed below, they are left wanting more.

Which brings me to the potential “vices” that may come with the IR lens: assuming rather than historicizing, a partial silencing of the voices of certain important actors, and a narrowing of the analytical focus, leading to important blind spots.

On the first point, in his illuminating post Alonso Gurmendi expands on a key question which my book largely treats as given: why exactly were states so allergic to internal violence, particularly in the nineteenth century? Rightly, Gurmendi reminds us that rather than “natural” this stance resulted from concrete historical experience, some of which he recounts. I cannot but agree with this observation, and thank him for elaborating historically on something that to IR scholars appears essentially as a self-evident. Note, however, that Chapter 2 of the book does address this theme to some extent by discussing the sociopolitical context of sovereignty in nineteenth-century Europe, including its imperialist, nationalist, and militarist tendencies. Still, I appreciate that more could be said about this, including, as Gurmendi explains, regarding guerilla warfare, levée en masse, or states’ attitudes against franc-tireurs.

For their part, Alejandro Chehtman, Kathryn Greenman (and Neta Crawford to a lesser extent) identify another important partial issue: the voices of non-Great Power or “peripheral” states are relatively muted in my explanatory narrative, well despite their importance for the production of the social pressure I underscore.

This is fair. I agree with Chehtman in attributing it to received inherited practices of theorizing from mainstream IR, particularly in the US. In a nutshell: given the predominance of “realism” in the post-World War II era, IR theory debates have since the 1960s tended to foreground (to treat as centrally important) the role of major powers in the making and running of the international system. This focus shaped the field subsequently, including by compelling theoretical alternatives to legitimate themselves (at least initially) by demonstrating the incompleteness or inadequacy of realism.

Luckily, writing in 2021 one can appreciate how much the field has changed — interparadigmatic debate is no longer the steering force in IR that it was before — yet vestiges of the above remain, including in how we “spin” our research for publication in high-ranking journals. Research does tend to appear more intriguing when it contradicts baseline expectations of major power protagonism or predominance. Being trained and socialized in US IR academia, I inherited this “framing” habit, and have benefitted from it.

Note, though, that the problem is not necessarily with the intrinsic merits of this framing. Instead, the issue is that even work (like mine) which theorizes the importance of peripheral actors in world politics in practice may end up giving Great Powers the analytical centerstage.

In the book, the states doing the social pressuring came from Latin America, Africa, Asia, the socialist bloc, as well as parts of Europe. Yet when analyzing some central moments before and during diplomatic negotiations, I zoom most deeply into the attitudes and strategies of powerful states, particular Britain, France, and the United States. Although other states and actors remain present and centrally important, their voices become muted in the narrative.

All this to say, I agree! And I admit as much in the book’s closing line. Viewed positively, this partial weakness presents an opportunity for future scholarship to continue granting attention to the critical importance of the “Global South” or the “Third World” in the making and operation of international law, norms, and institutions. Fortunately, this now appears to be a trend across fields, with no sign of stopping.

It should be said that this type of transnational research takes huge amounts of time, effort, and luck. Constraints of funding and time certainly influenced my choices. And as Chehtman suggests, so did archival availability. Having looked through the government archives of Mexico, Colombia, and Ireland, I found only very few sources relevant to IHL lawmaking, which may either say something about these countries’ substantive interests or about the politics of archiving.

Nevertheless, the little material I found proved the effort was worthwhile: evidence from Mexico for example revealed that country’s delegates in 1949 were explicitly instructed to pressure the European empires to accept the inclusion of internal conflicts in the Geneva Conventions, refusing to let them get away with their colonial attitudes.

Broader research may not just give us a “global history” of IHL. It may also help untangle some of the remaining puzzles Boyd van Dijk highlights in post regarding the origins and negotiation of Common Article 3, or uncover concrete evidence regarding the ulterior political motives adduced by Greenman. My book certainly does not address every interesting angle or potential negotiating motive, though I believe I have given robust answers to the puzzles I do raise.

At least for the case of Common Article 3, archival evidence across five states overwhelmingly pointed to its being perceived as a check on sovereignty, and only for the case of the Soviet Union did I seriously suspect an ulterior motive to lie behind its supportive stance. I now hope to learn more from other scholars, including Van Dijk and Greenman themselves, who may be able to harness an even wider range of sources, potentially contradicting my view.

This brings me to the last potential “vice”: a narrowing of my analytical lens, with its associated blind spots. Several readers note this in different ways: Charli Carpenter, Greenman, Chehtman, and Verity Robson all rightly comment that the book’s tight focus on historical treatymaking misses the posterior life of the law after codification, particularly the ways in which the rules’ meaning, application, and development eventually expanded and unfolded since the 1970s.

Separately, van Dijk, and Katharine Fortin remark upon two further blind spots: a partial inattention to important precedents (the ICRC’s involvement in colonial settings before 1949), and the early importance of human rights ideas in the development of IHL since the 1940s.

Here again I agree: although I labored to present a well-contextualized and historically-rich narrative, considerations of research design, as well as more practical ones of readability, colored my choices and produced omissions.

In terms of research design, I chose to keep my eye as closely as possible on question of the emergence of the fascinating and complex treaty instruments that make up this branch of IHL. Explanation of these treaty rules was uncharted territory in IR scholarship, and given enduring debates about them among historians and lawyers, I felt they merited my central attention. My research later confirmed this to have been wise: the sheer amount of previously-unexplored archival material on treatymaking ballooned its way into a 420-page-long PhD dissertation!

This narrowing choice also entailed organizing my research specifically around theories of normative emergence and lawmaking. Much though I wanted to, incorporating the “after-codification” period would have meant bringing in additional conceptual tools, inevitably complicating and elongating my framework. In the end, I followed the sage advice that no book could do everything and that leaving other aspects of the process for future examination made good sense. 

My other reason was more straightforward: as a first time author hoping to reach as many readers as possible, I worked to keep the book relatively tight and trim, featuring just enough material to appeal to (or avoid turning off!) the interdisciplinary audience I sought to reach.

In short, I could not explain or include everything that seemed interesting and relevant. A lot of fascinating evidence ended up on the cutting floor.

With that in mind, I warmly thank Carpenter, Greenman, Chehtman, as well as the ICRC’s Iris Mueller, for expanding upon these various aspects of the “post-codification” history in their thoughtful responses. As they all make clear, well beyond the politicking of treaty negotiations, the IHL applicable to internal conflict has over time transformed in important ways.

A process of “normative pull-forward”, as Carpenter calls it, has certainly taken place, both to positive effects (expanding the protective aspects of the law, highlighted by Carpenter and Mueller) and negative ones (governments instrumentalizing IHL partially to neutralize human rights law, as Chehtman notes for the Colombian case). A discussion of these crucial moves of interpretation, litigation, and advocacy is no doubt essential for achieving a fuller understanding of the law’s possibilities and limits.

On the connection between human rights and IHL, again I issue a partial mea culpa. While Chapter 5 of the book does feature their crucial interconnection around 1968, I generally overlook their ideational imbrication and politicized relationship before then, and after. These sibling regimes’ complicated relationship and entangled histories deserves the scrutiny that scholars like van Dijk and Fortin are granting it. Again, I hope to continue learning from their excellent work.

I close by agreeing with Robson – compromise through lawmaking is certainly an art, though in my view it is a deeply political art, rooted in concrete global and localized histories and struggles and borne out of complex motivations and shrewd diplomatic moves. I hope to have made those points clearly visible for the treaty IHL “humanizing” internal conflict in Lawmaking under Pressure. To what extent and how such political compromising actually limited or enhanced the law’s eventual influence remains fertile research terrain; Fortin, Carpenter, Chehtman, and Greeman all remind us of it. International lawmaking surely is political, yet as the last few decades demonstrate, international law and politics always allow for some unexpected surprises.

“Lawmaking Under Pressure” Book Symposium – A retelling of the history of internal conflicts: political fireworks, a post-script to the ‘dreaded article 1’ of API and an agenda for future research

May 28, 2021

Katharine Fortin is an Assistant Professor at Utrecht University where she teaches international humanitarian law and international human rights. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. Katharine has written widely about the framework of law that applies to armed groups in non-international armed conflicts and she is one of the editors of the Armed Groups and International Law blog. She has recently started a 3-year NWO-Veni research project called ‘Dangerous Liaisons: civilian agency, armed groups and international law’.

Lawmaking under Pressure is a fascinating chronicle of the drafting history of the treaty provisions that apply to non-international armed conflict. Starting in 1863, the book asks why and how states, commonly concerned with their sovereignty – particularly regarding internal security affairs – have adopted legally binding international rules to constrain their ability to counter organized violence within their borders. Rather than focusing on the substantive provisions of the articles, the book takes the reader backstage into the diplomatic world behind global lawmaking, highlighting the pressures, compromises, face-saving and political maneuvering that dominate the treaty-making processes.

Drawing on archival records relevant to the drafting conference for the Geneva Conventions and Additional Protocols, Mantilla shows how the drafting States conducted a complex juggling act during the Diplomatic Conferences, weighing and re-weighing different but interconnected goals and priorities on a daily basis, paying just as much heed to political dynamics relating to the power relations in the negotiating room, as to the substance being debated (i.e. the legal regulation of armed conflict). The book provides a fascinating insight into the political history behind the changing text of common Article 3, Article 1, 43 and 96  of API and Additional Protocol II. In this post, I will briefly focus on what I find particularly valuable about the book and some issues on which I would have liked a little more detail.

High tensions and political fireworks

One of the great pleasures of  this book is the engaging manner in which it is written. Particularly in chapter 3 and 5 which deal with the drafting of common Article 3, Additional Protocol I and Additional Protocoll II, Mantilla vividly brings the backstage diplomatic atmosphere to life by peppering his writing with quotes from diplomatic sources that betray rising anxiety (‘our delegations worst forebodings…. Have come true….”) (p87), a weary pragmatism (”half a loaf is better than no bread”) (p95) and emotion (the Swiss…. thought the session was “deplorable” and declared that they were ready “to do what they can to pick up the pieces”, the French delegation was “depressed”) (p149). A lavish employment of these kinds of quotes, combined with enjoyable sub-titles like ‘Living to Fight Another Day’, ‘The Moment of Truth’ and ‘A Crucial Meeting’, ‘Pressured Empires Strike Back’, brings the high drama of the Diplomatic Conferences to life. Mantilla gives the reader a sense of the tensions and political fireworks going on both behind the scenes and in the negotiating rooms. As the drafting process goes on, Mantilla also feeds these emotions back into the narrative itself, amusingly starting to call Article 1 of API ‘the dreaded Article 1’ in his own text.

For scholars who have worked with the drafting papers of these treaties a lot, the value of this book is that it tells the story that we already know using completely new materials, in a narrative moulded from the concerns and priorities from a mix of different disciplines e.g. international relations, social psychology and international legal history. It brings to light chilling and elucidating backstage utilitarian calculations, hypocrisy, manipulation and racism by the Western group of States, who schemed to make sure that – wherever possible – what they gave with one hand, they took away with the other (a dynamic Mantilla calls ‘covert pushback’). For example, the book shows that the vague scope of application of common Article 3 was a deliberate attempt to provide States with a means to refuse its application. It also tells how the insertion of Article 96 in API was a unequivocal attempt to undo the ‘damage’ some States saw to have been done by Article 1.  Yet, the book also makes clear that the political process was too complex to identify good players and contrast them with bad players. Indeed, Mantilla shows how many of the Third World states who were pushing for national liberation movements to be treated as international actors with rights and obligations akin to States under API, were utterly allergic to any provisions implying that armed groups involved in (nonliberation) internal conflicts should have legal personality under APII. Equally, it shows how the few drafting States who were pushing for the text of APII to retain its full range of humanitarian provisions were seen by other States to be in effect threatening to sink the entire instrument. In other words, Mantilla shows that the final treaty texts are not a compromise that emerged out of a battle between two opposite forces (e.g. military necessity v humanitarian, sovereignty v communitarianism) but instead compromises that emerged out of a complex combination of eddying, unpredictable and sometimes contradictory forces relating to backstage politics, coalition building, normative wagering and social anxiety.

What was at stake?

Perhaps due to the book’s focus on procedure and politics, there are places in the book where one has the feeling that the analytical lens Mantilla employs is not wide enough to take account of the international legal universe in which international humanitarian law has its place. For example, one small critique is that the book little attention is given to the intertwined fates of international human rights law and international humanitarian law. As a result, when reading about the high drama that accompanied the drafting of the Additional Protocols and the heightened tension that arose from States’ anxieties about international norms infringing upon their sovereignty, a reader might be forgiven for concluding that IHL was the only legal framework that would apply in internal armed conflict. If Additional Protocol II not survived, there would have been legal vacuum except for CA3. Yet, of course, this isn’t true. The complementarity between international humanitarian law and international human rights law can be traced back to 1948-9, when ICRC delegates attended the drafting of the UDHR. Indeed, long before the famous Tehran Declaration of 1968, it was regularly recognized by the United Nations that human rights law applies to the kinds of situations that are under study in Mantilla’s book i.e. situations of internal unrest and internal conflicts (Fortin, 2012, van Dijk 2018). When this perspective is recalled, it becomes interesting to ask whether the application of human rights law to internal armed conflicts was in the drafters’ minds during the drafting of the Additional Protocols? Indeed, now that we have all this fascinating detail regarding what was in their minds regarding IHL, it would be interesting to know more about this aspect too.

It is also interesting to look back at these debates with the benefit of hindsight, which is a perspective that is not adopted by the book. Indeed, when we look back on this drafting history – in the knowledge of how the law on NIAC targeting has developed in subsequent years with increased acceptance of a membership criteria for armed groups –  it becomes interesting to consider how States might feel about some of the issues relating to the ‘threshold’ of IHL today. One has the impression that Mantilla sees IHL as being a purely restrictive framework for the parties to the armed conflict, but increasingly we see that just like Rubin’s vase – that famous image where the same lines can produce two faces and a vase at the same time – IHL can be both permissive and restrictive at the same time. As a result, its application often brings both advantages and disadvantages to States.  

A postscript re dreaded Article 1

Another detail in the story that we can add with hindsight is a small but significant postscript to Mantilla’s telling of the story of the ‘dreaded Article 1’ of API. Indeed, Mantilla ends the story of Article 1 of API with the rather gloomy prognosis that the insertion of Article 96 ensured that ‘API was unlikely to ever apply to such wars’. Yet, he does not note that in fact Article 96 was in fact used with success in 2015. Indeed, in June 2015 the Polisario Front made a unilateral declaration under Article 96(3) of API which was accepted by the Swiss Federal Council, acting in its role as the depository. While the Polisario Front was not the first national liberation movement to try and make use of this provision, it was the first national liberation movement to have its declaration accepted by the Swiss depository. As a result, it can be seen that the last-minute Article 96 insertion that so ‘pleased’ its actors did not completely stymie the application of API to liberation wars.

Avenues for future research and final reflections

In the conclusions, Mantilla reflects on several social and legal developments since the 1970s, some very recent, that may be relevant to future thinking on the issue of lawmaking and armed conflict. When reflecting on the role that social pressure and fear of social opprobrium played in the drafting processes in the 1970s (generally pushing the text towards a more humanitarian outcome), he questions – clearly with the Trump administration in mind –  whether social opprobrium would play a similar role in any drafting process today. He also mulls over the move towards ‘custom’ in international humanitarian law, a law-making process that evades the fraught political maneuvering and compromise required by treaty law.  While it is sometimes argued that custom is a less legitimate source of law to treaty law due to its unwritten character (d’Aspremont, 164, and for a recent discussion, Hakimi 2020), Mantilla expresses cautious optimism about the expansion of custom in this field pointing to the ‘prolonged, haphazard and fragile’ (my emphasis) outcomes of treaty rule codification for internal conflict. In making this conclusion on ‘fragility’, one catches a glimpse of a new research question that is clearly brewing at the back of Mantilla’s mind, that is articulated more fully later in his conclusions. The question is this: do socially pressured, prolonged and contentious treaty drafting processes such as those that produced the Additional Protocols create the same strength of norm – from a compliance perspective – as treaty norms that emerge out of a less fractious process? Most lawyers would be quick to say ‘no’, pointing out that the ‘bindingness’ of the resulting provisions is the same, no matter how fractious the process and arguing that those responsible for a treaty’s implementation would tend to be oblivious to the drama that went into its drafting, but it would be fascinating to see further research on this question.

At the end of the book, Mantilla identifies some of the book’s limitations with a view to identifying avenues for future research. Most importantly, he points out that the story the book tells is based mainly on archival material from the ICRC, France, Switzerland, UK and US. He rightly argues that there is a need for new histories of the same issue written on the basis of a review of archives located in the Global South. It is hoped that in these new histories, there might be more details also on the participation of the national liberation movements in the drafting of Additional Protocol I. Not only would it be interesting to learn more about their (perceived) contribution to the Diplomatic Conference, but their presence at the drafting conferences also raise interesting questions relevant to Mantilla’s theories regarding social pressure during drafting processes. For example, do the dynamics of ‘social pressure’ and ‘forum isolation’ rely on the actors in the room being members of the same ‘club’? What happens when actors outside the club enter such a process? Are outsiders also affected by social pressure and able to apply social pressure that is meaningful to States? These are intriguing questions that are presumably relevant not  only to the participation of armed non State actors in drafting processes but also any other non State actor, such as civil society organisations.

Lawmaking Under Pressure Symposium: International Humanitarian Law Governing Non-International Armed Conflicts–Treaty Law and Customary International Law

May 27, 2021

Up on Opinio Juris, you can find latest post by Iris Mueller, ‘Lawmaking Under Pressure Symposium: International Humanitarian Law Governing Non-International Armed Conflicts–Treaty Law and Customary International Law‘ in our co-hosted book symposium on Dr Giovanni Mantilla’s book ‘Lawmaking under Pressure’. Check it out here.

“Lawmaking Under Pressure” Book Symposium – Squaring the Circle

May 27, 2021

Boyd van Dijk is a McKenzie Fellow at the Melbourne Law School. He received his PhD in History from the European University Institute. His most recent publications have appeared in the American Journal of International Law, Law and History Review, and Past & Present. His forthcoming book, Preparing for War, will be published by Oxford University Press in late 2021. It provides a new revisionist history of the 1949 Geneva Conventions, the most important rules ever formulated for armed conflict. Contact details: boyd.vandijk@unimelb.edu.au   

The adoption of Common Article 3 (CA3) is one of the most mysterious stories in the making of the 1949 Geneva Conventions. The final vote on the article took place in complete secrecy. Even while scholarship analyzing the Conventions’ past is expanding every year, scholars are still in the dark about Common Article 3’s genesis.

Giovanni Mantilla’s extraordinary book, Lawmaking under Pressure, does an impressive job at trying to unravel the article’s mystifying drafting history. He is one of the first scholars to extensively use archival materials from both state and non-state archives to solve this enigmatic puzzle of history. He has read hundreds and hundreds of minutes, reports, and memos requiring momentous levels of intellectual stamina. In this way, he has not only uncovered the crucial social pressuring mechanisms behind CA3’s adoption but also demonstrated greater sensitivity to historical insights than most of his international relations (IR) colleagues have done so far. This is a particularly impressive achievement considering the fact that IR scholarship does not always fully reward such type of qualitative historical analysis.

Mantilla’s exceptionally detailed archival reading of the Conventions leads to a whole range of brilliant insights: he shows the extent to which the Great Powers were on board with the idea of regulating non-international armed conflicts (NIACs); how European colonial powers tried to undermine this proposal; why they finally signed onto the Conventions; what role officially neutral actors such as the International Committee of the Red Cross (ICRC) played in this highly politicized process; how CA3 changed the history of international law and global politics in remarkably important ways; and why this drafting history matters for understanding international humanitarian law’s (IHL) challenges today.

Common Article 3

This review of the book’s third chapter, ‘Squaring the Circle,’ reconstructing CA3’s drafting history, presents two counterpoints to Mantilla’s analysis, with the goal of sparking a broader debate about the future directions of IHL history. The review’s first counterpoint concerns Mantilla’s telescopic discussion of the immediate post-war years, during which CA3’s drafting was being extensively discussed. In the author’s view, the most important element driving this process forward was a collection of social pressuring mechanisms that ultimately pushed the European colonial powers over the edge in 1949.

This innovative argument presenting the post-1945 period as an evolutionary social pressuring moment whereby different ‘norm entrepreneurs’ gradually built up political pressure on the Great Powers to create a perfect legal storm leading to the article’s adoption is an intellectually attractive one. Among other things, it helps us to see what role social pressuring mechanisms have played in lawmaking processes like the Conventions’ making, and how twentieth-century global legal ordering has worked in practice.

One of the dangers of this social mechanism approach is that sometimes neglects the broader impact of structural phenomena shaping the character of the international legal system in this period. Strikingly, the author’s subdued discussion of the impact of human rights debates and decolonization on CA3’s making is telling in this regard. What I found most striking about the immediate post-war period was less the mechanism of social pressuring, as Mantilla emphasizes in his chapter, than the radically changing conceptions of (colonial) sovereignty during these years of anti-colonial resistance and rights’ debates. In fact, declining imperial powers even asked for ICRC intervention in their wars of decolonization after 1945. In previous days, they had often resisted international interference in their colonial affairs and claimed absolute sovereignty, often on racialized grounds. By the mid-1940s, however, anti-colonial resistance forced imperial states to rethink their original position and imagine the potential application of humanitarian law to colonial wars. This critical shift ultimately facilitated the emergence of a set of new legal sensitivities, with critical consequences not only for pre-existing ideas of colonial sovereignty, but also for the development of humanitarian law after 1945. Indeed, as I have argued before, ICRC legal experts exploited this precedent while laying the foundations for the first binding article in colonial wartime – i.e. Common Article 3.

Human Rights and Decolonization

By contrast, Mantilla’s restricted discussion is much more focused on the events leading up to the diplomatic conference in 1949 than the world outside of Geneva. Similarly, he is less interested in the conceptual effects of human rights’ debates in the 1940s on the Conventions’ drafting process. Even more interestingly, he starts his book by juxtaposing the ‘failure’ of Paris to recognize a right to resistance as part of the non-binding Universal Declaration of Human Rights (UDHR) with Geneva’s ‘success’ in producing a binding article for NIACs – even though he does not mention Geneva’s failure to include partisans under the POW Convention. Mantilla’s claim is legally accurate but might give the wrong historical impression – as if human rights and humanitarian law were two fundamentally distinct fields in the 1940s.

In reality, many of the leading drafters of the Conventions saw a much more intimate connection between these fields of international law than Mantilla and many others have suggested previously. For instance, while giving a speech at the Conventions’ signature ceremony in December 1949, almost one year after the Declaration’s acceptance, president Max Petitpierre argued that in adopting ‘rights and [the] respect for the human person’ in wartime, these treaties shared the ‘spirit’ of the UDHR. This statement was meant not just as a reminder of the Declaration’s upcoming anniversary a few days later, but also as a means to emphasize their common viewpoints and principles. Likewise, the text of Common Article 3 was a based on a rejected human rights preamble for the Civilian Convention in which rights’ conceptions played a central role.

Secret Ballots

A more important second counterpoint to Mantilla’s analysis concerns his archival reading of the final stage of CA3’s drafting process. As said, the birth of this provision was mysterious and extremely contentious in nature. This has mainly to do with the plenary’s decision to hold a secret ballot during the final stage of the voting process – a proposal which was sponsored by the United Kingdom and put forward by one of its former colonial servants, a Burmese general whose government was trying to put down an insurgency at home. As a result of this secret vote, scholars are now left with an incomplete record of CA3’s voting procedure, as well as a conspicuously vague idea of imperial voting behavior.

Mantilla’s careful archival reading is sensitive to these problems, but he makes on several occasions quite far-reaching inferences about the voting behavior of central actors – from France, Great Britain to the United States – that raises a number of questions. The suggestion that the archival record provides conclusive evidence or a smoking gun in this case is not entirely compelling. The exact voting record remains unknown for scholars today and was unfamiliar even to the most intimate observers at the time. Moreover, Mantilla’s analysis seems to rest on the assumption that social pressuring mechanisms had their most dramatic effect when there existed substantial interest in Geneva’s deliberations. In reality, the Swiss hosts complained about the lack of world attention for the Conventions’ discussions in Geneva, in 1949. These issues raise broader questions about the extent to which Mantilla’s theory of social pressuring mechanisms can fully explain the contingent emergence of CA3, in August 1949.

Remaining Puzzles

Even if we accept some of the author’s far-reaching inferences, we are still left wondering why the imperial powers – including the Soviet Union – gave their support to the idea of regulating internal wars in the first place. Why were they willing to give up parts of their sovereignty at its most fragile moment of existence? Mantilla’s chapter offers a whole range of interesting answers to this central question, but he cannot entirely solve the puzzle of CA3’s breakthrough – in part because of the incomplete archival record. When reading his chapter, the reader keeps thinking about why French imperialists designed the text for CA3; why they claimed that this proposal underlined their proclaimed agenda of promoting human rights on the global stage; why the British supported this plan (assuming they did so until the very end of this drafting process) even when it was effectively rejected in a sub-committee; and why the Americans promoted the secret ballot vote in August 1949.

These issues need to be studied from different analytical viewpoints in the future and cannot be explained solely by social pressuring arguments. Otherwise scholars might do damage to the highly contingent emergence of CA3 in 1949. Mantilla’s fascinating analysis compellingly shows that almost every type of violence occurring within states was discussed already in the 1940s. He also demonstrates that the major imperial powers deliberately left CA3’s scope vague in order to protect their core security interests. And his work should inspire other scholars to produce more entangled histories of the Conventions’ making in which central issues such as regulating internal wars are no longer studied in isolation.

Instead, if we wish to gain an even more comprehensive understanding of the Conventions’ past, we should try to bring the law’s different elements into a broader dialogue – from partisan warfare, civilian protection, to internal wars, include more historical context, and make this all part of a truly interdisciplinary conversation. Scholars of humanitarian law cannot escape the reality that the Conventions’ leading drafters saw these central questions of humane warfare, featuring gender, race, power, rights, and sovereignty, as being inextricably linked. We should take this lesson on board when returning to Geneva’s deliberations in the future.

Lawmaking Under Pressure Symposium: A Review

May 26, 2021

Up on Opinio Juris, you can find latest post by Charli Carpenter, ‘Lawmaking Under Pressure Symposium: A Review‘ in our co-hosted book symposium on Dr Giovanni Mantilla’s book ‘Lawmaking under Pressure’. Check it out here.

News Roundup 17 May – 23 May

May 26, 2021

The underground war brewing on the Colombia-Venezuela border

UN envoy: Libya mercenaries a threat to entire North Africa

ICC prosecutor urges Libya to hand over Gadhafi’s son

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“Lawmaking Under Pressure” Book Symposium – The Art of Compromise

May 26, 2021

Verity Robson is the Legal Counsellor at the Permanent Mission of the United Kingdom to the United Nations and Other International Organisations in Geneva, where she provides advice on public international law and negotiates multilateral agreements. She previously served as an international law adviser in the Foreign and Commonwealth Office and the Government Equalities Office, and undertook a secondment to a public inquiry into allegations that international law was breached by the UK in Iraq. Verity holds Master’s degrees from the University of St Andrews and SOAS, University of London. She has been admitted as a Solicitor of the Senior Courts of England and Wales and in Scotland. Verity Robson can be found on twitter at @verityrobson.

After several years participating in multilateral negotiations, including on matters of international humanitarian law, within the frameworks of both the United Nations and the International Conference of the Red Cross and Red Crescent Movement, I was curious to read how the practice would be theorised in Giovanni Mantilla’s impressively researched and elegantly written book, which draws on records of the negotiation processes that resulted, respectively, in Article 3 common to the four Geneva Conventions of 1949 and in the second Additional Protocol of 1977.

Mantilla posits that State agreement to new rules of international law follows a two-stage pattern: firstly, what he terms “normative pressure” by norm entrepreneurs who put new standards on the intergovernmental table (p21) and, secondly, “forum isolation” during negotiations, when the fear of reputational damage shames an eventual minority of resistant States to acquiesce (p23).

From the perspective of a practitioner, the first stage rings true. Norm entrepreneurs play an essential role in bringing States to the negotiation room. Whether individual campaigners, civil society organisations, UN mandate holders, academics or other experts, their expertise, passion and vision for – in the case of non-international armed conflicts – a safer, more humane, better-regulated global arena play a vital role in drawing attention to legal lacunae as well as areas in which international legal protections could be strengthened.

Likewise, Mantilla’s discussion of the nature of multilateral compromise is compelling: “a collective political achievement shrouded in the powerful mantle of international law” (p8). He understands that, in the words of Philip Allott, “Negotiation is a process for finding a third thing which neither party wants but both parties can accept” (ibid). The eventual product – be it treaty or resolution – is a careful balance of components which, taken together, embody the parties’ shared concerns and reflect a sufficient number of their individual objectives to achieve broad acceptance.

But the suggestion that opprobrium could be the catalyst for compromise overlooks the underlying bases for multilateral negotiation. States engage rationally in multilateralism in recognition of the fact that, for the good of international peace and security, there is merit in sacrificing some exclusively national interests on the understanding that others will reciprocate. The necessary extent of those sacrifices is not usually apparent until negotiations are underway. A national position will be refined over the course of the process – which may last years, or straddle a change in administration.

Mantilla suggests that, “at the end of a lawmaking process there would appear to be more or less clear winners and losers” amongst participating States. Experience does not bear that out: as international actors, States have a right and perhaps even a duty to shape the global framework. At the conclusion of a productive law-making process there is generally a feeling that the job has been done and that progress, to a greater or lesser extent, has been made. In fact, the ones who may feel a degree of disappointment are the norm entrepreneurs who, by virtue of their role as champions for change, often strategically advocate for a norm pinned higher above the lex lata than the average State is willing to climb.

Where the exact balance of compromise among States will finally lie is harder to predict, and not only because the composition of the ultimate legal instrument reflects compromises between as well as within its constitutive elements. Power pulls the weight of compromise closer to the holder’s position, yet the power wielded in any given negotiation is correlative not only to geopolitical status more broadly but also to strategic and political alliances: whether between capitals or, more locally, between delegations.

Pragmatism about the consequences of compromise plays a role, too. In practice adoption means only that a majority of States parties are sufficiently content to allow the instrument to join the thematic corpus: it is not necessary for every one of them to have the intention to ratify the instrument, to help bring it into force internationally or to give effect to it domestically. A minority of States, knowing that they are unable to influence the text further toward a form they could support, may be resigned simply to knowing that, while they lack the numbers to block its adoption, they are under no obligation to accept the instrument as binding upon themselves. The prospect of crystallisation as custom is, at that point, a long way off.

Mantilla acknowledges this when he describes the results of multilateral lawmaking as “momentary achievements […] which despite being codified nevertheless remain subject to intense contestation” (p9). Forum isolation is therefore a misplaced concept: adoption is not the end of the process. If a State were truly ‘shamed’ into accepting a new norm, it would sign and ratify, too.

Two final points. I found puzzling the characterisation as “deception tactics” (p10) and “covert pushback” (pp60, 90, 132) of delegations’ attempts to shape treaty provisions with “ambiguous language which they read in a narrow manner but that was more generously interpreted by their proregulation peers” (p10). Ambiguity is inherent to language, and constructive ambiguity is integral to compromise. Given the different policy objectives, constitutional arrangements and languages that delegations bring to the table, it is hard to conceive of a successful multilateral negotiation that does not depend on compromise language, capable of simultaneously fulfilling competing needs.

Lastly, the word “codification” makes frequent appearances throughout the book, though what often appears to be signified is the progressive development of international humanitarian law in treaty format. Codification, as the International Law Commission might understand it, is something else.

Lawmaking Under Pressure Symposium: A View from Latin America

May 25, 2021

Up on Opinio Juris, you can find latest post by Alejandro Chehtman, ‘Lawmaking Under Pressure Symposium: A View from Latin America‘ in our co-hosted book symposium on Dr Giovanni Mantilla’s book ‘Lawmaking under Pressure’. Check it out here.