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“Lawmaking Under Pressure” Book Symposium – Looking at the Other Side: The Contingent Origin of State Attitudes Towards Insurrection

May 24, 2021

Alonso Gurmendi is an Assistant Professor at Universidad del Pacífico, in Lima, Peru, where he specializes in international humanitarian law and use of force, with a focus on the history of international law. Currently, he is also a PhD candidate at University College London (UCL).

Lawmaking Under Pressure is an incredibly detailed and insightful account of the history of non-international armed conflict. Giovanni Mantilla has certainly produced a book that will be mandatory reading for anyone looking into the history of not just Common Article 3, but the Geneva Conventions and their Protocols in general.

The book seeks to explain the paradox of why colonial empires and world super-powers with little interest in the regulation of internal warfare suddenly agreed to open the floodgates of international law, enabling the limitation of their so-called “sovereign” freedom of action in the suppressing of internal strife and revolution.

Giovanni’s central thesis is that this process “cannot be explained by simple assumptions of rationality, sociability, and morality working independently” (p. 96). Instead, it “can only be considered rational action under social pressure” (Id.). In other words, crumbling colonial empires were shamed/forced into accepting Common Article 3. But Giovanni also argues the realities of negotiating under pressure are such that power is never fully defeated: “the Brits bounced back by strategically planning to insert language that ‘without dotting the I’s,’ might safeguard their sovereignty woes”.

In exploring these findings, Giovanni offers a historical tour de force of the complex motivations and interactions between states and the ICRC. Much of this story is a lesson on good timing; how the right circumstances matter – a lesson that holds value to this day. Whether the aftermath of World War II or the decolonization process, the book retells how was it that these committed sovereigntist sensibilities were strong-armed into ceding ground and in what terms.

Because of these methodological choices, however, these state sensibilities are not very much explored. They are a given – states do not like international law to interfere in their domestic wars because, well, it is natural for states to not like international law interfering in their domestic wars. In this commentary, I want to add to Giovanni’s excellent retelling by sharing a little bit of the “other side’s” history – why did mid-20th century states approached internal war the way they did (and why does this matter). This is, therefore, in part, an exercise in contingency.

Giovanni notes that, aside from the Lieber Code, internal conflict “was conspicuously absent from interstate debate on wartime rules until around 1912” (p .21) This is, of course, correct. But it was the 19th century that defined the attitudes towards internal war that would later need to be pressured in the 20th. See, 19th-century Europe was changing. In May 1808, when Napoleon invaded Spain, he had the Spanish King abdicate in favour of his brother – Joseph Bonaparte. If national sovereignty rested in the person of a divinely appointed king, then the war was lost, and the new king should be embraced. But this did not happen. The Spaniards wanted a Spaniard in the throne. By late May, all major cities had risen in open revolt against the French.

This conflict was different, though. It was not a traditional “war of positions” with battalions and troop formations manoeuvring in an open battlefield. It was a set of isolated, small skirmishes meant to make France’s present in Spain unsustainable. These “small wars” – or as the Spanish would call them, guerrillas, were a new occurrence in European war. Henri de Jomini, Napoleon’s top military advisor, believed guerrilla warfare forced France to engage in a “war of extermination” and hoped these would be “banished from the code of nations” (p. 34). Jomini thus longs for the “good old times, when the French and English Guards courteously invited each other to fire first” and openly complains of the “speculative persons” who “hope that there should never be any other kind [of war], since then wars would become more rare [sic]” (Id., at 33-35).

Carl von Clausewitz was one such speculative person. He famously embraced this new era of total war (p. 228). He strongly believed that the brutality of war as a feature, not a bug: “[t]o introduce the principle of moderation into the theory of war itself would always lead to logical absurdity” (p. 76). Unlike Jomini, Clausewitz saw nothing to lament about guerrilla warfare, one must simply adapt. On the one hand, “[e]ven after defeat, there is always the possibility that a turn of fortune can be brought about by developing new sources of internal strength” (p. 483). On the other, “[w]here a population is concentrated in villages, the most restless communities can be garrisoned, or even looted and burned down as punishment” (p. 480). In sum, rise up if it means you can steal a victory; exterminate the rebels through collective punishment if it means you can impose one.

When Bismarck marched his troops into France in 1870, his high command was well-versed in Clausewitz. When the French citizenry rose up un insurrection after the defeat of its armies, the Prussians did exactly what Clausewitz advised. The practical application of these Clausewitzian principles led the Russian Emperor to convene a diplomatic conference in Brussels, in 1874, to discuss the regulation of land warfare. At Brussels, the legality of insurrection was at the top of everyone’s mind.

This is, after all, the dirty secret of levée en masse. In modern times, we are used to accepting that a levée en masse only occurs when (to quote the III Geneva Convention) “[i]nhabitants of a non-occupiedterritory (…) spontaneously take up arms to resist the invading forces” to face an approaching enemy (highlight added). We like to think this way because us lawyers insist in understanding history in problematically linear terms. In 1863, Francis Lieber said that a levée en masse occurs in non-occupied territories and, in 1874, the Brussels Declaration confirmed it. Point A is facilely connected to Point B and voilà, history! Like Giovanni and his excellent book, I am much more interested in what happens between these two points – the processes and negotiations that explain how one gets from one point to the other.

In 1874, Belgium, Switzerland, the Netherlands and other self-styled Petit États fought hard to secure a Clausewitz-inspired belligerent right for insurgents that se lèvent en masse during an occupation. The final text that we know today and inspired the Geneva Convention is but a compromise solution that satisfied no one. Not the Germans, who wanted civilians to stay put in their homes, not the Petit États, who wanted occupied insurgents to be recognised as full belligerents.

One can imagine a different outcome, one where the Belgian/Dutch/Swiss position won a vote in a conference seeking to regulate not a non-binding guideline like the Brussels Declaration, but a binding Convention, akin to its Geneva predecessor. In fact, one does not need much imagination. At the time, Henri Dunant had just founded the Société pour l’Amélioration du Sort des Prisonniers de Guerre. The Société’s President, the Count of d’Houdetot, sought to convene an international conference in Paris at the same time as Russia was planning its own in Brussels, “evidently in the hopes that this meeting would play the same role and have the same success as that of Geneva in 1863” (p. 17). Houdetot deferred in favour of the Russian proposal out of comity and courtesy, and history played its course. But imagine for a moment if Houdetot’s plans had been realised. He proposed a meeting not just of European states. Several South American states had already accepted the invitation to Paris but were purposefully excluded from Brussels. One can only speculate what would have happened in Paris. It is not like Latin American criollos were particularly fond of popular uprisings, but the inclusion of states that owed their existence to insurrection from the Spanish Empire would have certainly stirred the pot – and the Petit États already had a majority.

Whatever the événements of an alternate history, this is the context in which Giovanni finds the UK head delegate Robert Craigie complaining in 1949 that the ICRC’s Stockholm Draft “would appear to give the status of belligerents to insurgents, whose right to wage war could not be recognized” (p. 83). This is a statement uttered after 75 years of anti-insurrectionist discourse in the laws of war.

The experience of 1874 is, of course, not the only explanation. And there is certainly much more to say about the events between 1874 and 1949. The British and German experience with colonial warfare, and their association of “internal” with “colonial” strife, certainly played a key role. The extremely racist premises of so-called “small wars” against “uncivilised races” made the European approach to internal warfare even more brutal and even less willing to accept a principle of moderation. As one British military scholar wrote in 1881, referring to colonial wars, it was important to keep in mind “the justice of doing as much material mischief as possible to the enemy by destroying his crops and burning his huts”. Another one, this time in the 1890, talked about the importance of teaching “savage tribes” a “lesson which they will not forget” (see here, p. 59). By 1949, this was, as Daniel Whittingham calls it, the “British Way” of war.

The only way of tempering this well-entrenched belief in the necessary brutality and a-legality of internal warfare was, as Giovanni eloquently shows in his book, through “negotiation under pressure”. Hopefully through these lines I am able to contribute a little bit to what is already an extremely complete book, by focusing on why this pressure was needed in the first place. I will simply end by congratulating Giovanni once more for writing such an engaging and interesting book. I look forward to reading more from him throughout this symposium.   

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