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“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

UN urges greater aid access for Gaza, ‘intensification of mediation efforts’ to end Israel-Palestine violence

‘I’ve never seen scenes as ugly’: Treating Gaza’s wounded

Ceasefire can’t hide scale of destruction in Gaza, UN warns, as rights experts call for ICC probe

Back from the brink? Somalia’s political crisis explained

UN Security Council must not lift South Sudan arms embargo until human rights benchmarks are met

Tribal elders broker local Taliban, Afghan government ceasefire

Fresh attacks, dire conditions plague Africa’s Sahel, Security Council hears

“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.

“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.

Lawmaking Under Pressure Symposium: Making International Treaty Sausage–Appreciating Mantilla’s Lawmaking Under Pressure

May 24, 2021

Up on Opinio Juris, you can find latest post by Neta C. Crawford, ‘Lawmaking Under Pressure Symposium: Making International Treaty Sausage–Appreciating Mantilla’s Lawmaking Under Pressure‘ in our co-hosted book symposium on Dr Giovanni Mantilla’s book ‘Lawmaking under Pressure’. Check it out here.

“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.