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“Lawmaking Under Pressure” Book Symposium – Common Article 3: the production of legal meaning, and lawmaking in contemporary IHL

May 25, 2021

Kathryn Greenman is a lecturer in law at the University of Technology Sydney (UTS). Prior to joining UTS, Kathryn was a PhD candidate at the Amsterdam Center for International Law at the University of Amsterdam and a Kathleen Fitzpatrick Visiting Doctoral Fellow with the Laureate Program in International Law at Melbourne Law School. With Anne Orford, Ntina Tzouvala and Anna Saunders, Kathryn co-edited the volume Revolutions in International Law: The Legacies of 1917 (Cambridge University Press 2021). Her first monograph, State Responsibility and Rebels: The History and Legacy of Protecting Investment Against Revolution, is due out with Cambridge University Press in late 2021.

Chapter 3 of Giovanni Mantilla’s insightful and eloquent book, Lawmaking Under Pressure, traces the drafting history of Common Article 3 to the 1949 Geneva Conventions (‘CA3’). For Mantilla, the question at the heart of the chapter, and the book more broadly, is ‘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’ (p. 4). The answer is ‘a specific combination of historical conditions and agency’ (p. 95). First, the norm entrepreneurialism of the International Committee of the Red Cross (ICRC), especially from 1921 onwards, laid the groundwork. Subsequently, ‘social pressure’ or ‘forum isolation’ forced key objectors Britain and France to acquiesce to the adoption of CA3 at the 1949 Diplomatic Conference in Geneva (‘Diplomatic Conference’) in order to avoid being publicly shamed as legalistic, conservative and even ‘uncivilised’, especially by the Soviet Union. However, since such acquiescence on the part of Britain and France was only begrudging, they sought—covertly but ultimately successfully—to undermine the humanitarianism of CA3 by making the final wording as vague and general as possible.

In this reflection, I will consider the implications of this argument for international lawyers (rather than for political theorists or historians) today, especially those interested in the history of international law and in international humanitarian law (IHL). I will first argue that while Mantilla’s work makes an important contribution to our understanding of how CA3 came to take the form it did and thus to contemporary critiques of IHL, it cannot tell us about the ‘meaning’ of CA3 today. Second, I will argue that despite Mantilla’s skilful narration of the drafting and negotiation of CA3, the book’s starting point overstates CA3 as a turning point.

Chapter 3 concludes with the claim that it illuminates one crucial reason why CA3 soon proved to ‘underperform’ in practice; while IHL promoters celebrated the rule’s ‘openness’ and argued for its application in X or Y case, states facing internal conflicts often interpreted the same openness as vagueness and refused to argue or accept that it should apply in their specific situation (p. 96).

Mantilla is primarily referring here to the use of the term ‘armed conflict of a non-international character’ to determine the scope of CA3, but he also notes CA3’s application to rebel groups as another ambiguous aspect of the provision.

However, while the book claims that understanding the ‘backstage dynamics’ (p.11) of the drafting process can ‘address enduring puzzles … about the meaning of the law’ (p. 12), this misses something important about how legal meaning is produced. At a formal level, articles 31 and 32 of the Vienna Convention on the Law of Treaties relegate the importance of preparatory work in the interpretation of treaties. In international law, the meaning of treaty provisions is largely independent of the intention of their drafters. More critically, the drafting history of a provision cannot tell us about which way its indeterminacy is going to go in practice. As Anne Orford (Orford 2016; see also Tzouvala 2021) has argued:

dominant meanings of [legal concepts] are consolidated, contested, and transformed through interactions between institutions, norms, practices, networks, and powerful sponsors … While we might want to study the moment in which a text is written, what is more emblematic of legal knowledge production is the practice of repetition through which legal concepts, principles, and fictions come to seem—indeed come to be—real.

Despite the drafters’ intentions, the dominance of any particular interpretation of CA3 was no more pre-ordained than its emergence. Its meaning has been contested and transformed over time by how CA3 has been subsequently received and taken up by, for example, states, rebels, the ICRC, scholars and human rights groups.

To consider briefly CA3’s application to non-state parties to conflicts, as Mantilla notes, it was unclear after the Diplomatic Conference how CA3 could actually bind rebel groups as non-states and non-signatories. This was not a matter of great concern, however. The ICRC, for example, argued in its 1950 analysis of the Conventions that ‘the rebel party will be prompted to respect the Conventions, if only to show that its followers are not criminals, but are fighting as soldiers in a cause which they believe just’. As predicted, seeking to legitimise their cause and discredit France, the National Liberation Front (FLN) argued that CA3 applied to Algerian War and the Provisional Government of the Algerian Republic acceded to the Geneva Conventions in 1960 (Whyte 2018; Alexander 2016). However, in contrast, in 1965 the Viet Cong denied that it was bound an international treaty to which it had not subscribed, and the application of CA3 rebels became increasingly controversial (Greenman 2020), more so than in 1949 (Fortin 2017). In the end, whereas CA3 addressed itself to ‘each Party to the conflict’, all such references were deleted from Additional Protocol II, which made no reference to who bore its obligations. It was only after human rights groups began to monitor rebel compliance with IHL during the Central American civil wars of the 1980s (Alexander 2015), followed by United Nations bodies in the early 1990s, and scholars started to take an interest in the accountability of armed groups that the obligations of rebels gradually became a given (Greenman 2020). It was this practice, rather than anything that happened in Geneva in 1949, that has led to the predomination of a particular understanding of CA3.

Nevertheless, while Mantilla’s argument does not tell us much about the meaning of CA3 today, understanding how CA3 emerged in the form it did is important. For Mantilla, another contribution of Chapter 3 is to show that:

The international regulation of internal armed conflicts through CA3 was not a preordained outcome … a complex configuration of political circumstance, actors, forces, and contingency had to occur to produce it (p. 95).

Some of the most productive critical work in international law of the last two decades has been in this vein (e.g. Koskenniemi 2001), contextualising the law to challenge its rationality and separation from politics and revealing contingency to denaturalise and critique the present (Venzke 2020). For those interested in understanding exactly how contingency, structure and agency interact in the development of international law, Mantilla’s book offers a detailed and incisive case study.

Mantilla’s argument that ‘the politics of social pressure, especially those enacted and channelled in processes of multilateral codifications, matter decisively for the making of international law’ (p. 4) can help us to reflect on the contemporary development of IHL, where multilateral codification has to an extent been displaced by other forms of lawmaking. Since the Additional Protocols, nearly all multilateral IHL treaties have been narrow in scope. In contrast, the ICRC, with less formal state involvement, has orchestrated the most ambitious projects: the customary IHL database and the updated commentaries to the Geneva Conventions. With the rise of this more technocratic form of lawmaking in IHL, the potentially radical possibilities of multilateral codification—forcing powerful states to compromise and acquiesce—are in danger of being lost. At the same time, Mantilla’s work might also contribute to our thinking about the negotiation of the Treaty on the Prohibition of Nuclear Weapons, for example, where powerful objectors continue to resist agreement.

Finally, while Mantilla offers an extremely well-crafted account of Britain and France’s motivations and strategy in the negotiations at the Diplomatic Conference, the focus on these two states does seem a missed opportunity. If the problem is why states adopted CA3 despite sovereignty concerns, an equally or even more important question might seem to be why so many states supported CA3 from the beginning, rather than why Britain and France eventually acquiesced. Indeed, the fact that there was such widespread support for CA3 might make us question the initial framing of the problem. Important critical international legal scholarship has explored how ‘modern international law is a project that is concerned as much with the regulation and administration of life within states … as it is with formal questions of relations between states’ (Orford 2016) and how IHL empowers certain forms of sovereignty as much as it restrains other forms (Mégrét 2018). Before CA3, international law regulated internal conflict extensively through the doctrine of belligerency and the law of alien protection (Greenman 2020), albeit in an ad hoc fashion, and CA3 did not initially change much about that (Maganza 2021). How the picture might look different if we did not start from the assumption that IHL is simply a restraint on sovereignty—an approach that can reinforce the progressive narratives that Mantilla’s book otherwise successfully challenges—is an important question for further research.

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