Lawmaking Under Pressure Symposium: An Introduction

[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 and is the author of Lawmaking under Pressure: International Humanitarian law and Internal Armed Conflict.]

Lawmaking under Pressure: International Humanitarian Law and Internal Armed Conflict is the culmination of several years of research and reflection on international humanitarian law (IHL). Years ago as a young undergraduate in Colombia, a country ridden by a decades-long conflict featuring routine events of atrocity, I often wondered how restraint might be induced among those wielding armed violence. Later on as a graduate student in Political Science at the University of Minnesota, I “encountered” international law as a potential positive influence, and returned to puzzling over some basic questions: Is there international law for internal conflicts? If so, what is it and how might it apply?

Unfortunately, my discipline of International Relations (IR) was not very helpful: despite being a very old body of law, IHL had only recently begun to catch the attention of IR scholars, with most work at the time dealing with international war, not internal conflict. International legal scholarship offered a radically different picture, of course, with numerous works written by international lawyers about the content and past or present application of treaty and customary IHL to “non-international conflict”. Yet, while otherwise insightful, most international legal scholarship did not offer clear answers to the (increasingly more precise) questions I was exploring: Why did states opt to create international rules to “humanize” internal armed conflict, thus compromising their national security and opening up themselves up to international scrutiny? Why did states craft IHL rules dealing with internal conflicts in such interesting ways, as exemplified by Common Article 3’s famously unclear scope of application, or by the inclusion of wars of national liberation as a form of international conflict within Additional Protocol I? More generally, what exactly were the politics behind these legal outcomes?

These are the core questions that now shape Lawmaking under Pressure. Adopting an approach that combines my training as a Political Scientist with an appreciation of international history, diplomacy, and IHL of course, the book explores the long political process that over time has given us these important rules governing internal armed conflict. I start in the mid-nineteenth century, when states began codifying international rules for wartime conduct, and move forward (nearly all the way through to the present) by tracing the conditions, actors, and mechanisms behind the negotiation and adoption of IHL treaty law, specifically Common Article 3 to the 1949 Geneva Conventions, and the Additional Protocols I and II to the Geneva Conventions, from 1977. I do this by drawing on extensive secondary and primary evidence; most interestingly perhaps, I rely on a wealth of declassified documents from the government archives of United States, United Kingdom, France, Switzerland, Mexico, from the International Committee of the Red Cross (ICRC), as well as on interviews with former diplomats or delegates.

The resulting answer to my research questions turned out fairly complex, yet at the most general level I underscore the operation of social pressure as the conditional catalyst behind this area of international humanitarian regulation. I study the operation of normative pressure — particularly that coming from actors dealing with internal atrocities on the ground – as a necessary condition for rule-creation, eventually compelling the ICRC in 1921 to endorse IHL’s extension to internal conflict. I also theorize social pressure in the context of diplomatic negotiations, demonstrating (I hope) its critical role in creating a political environment which compelled materially powerful states to accept the regulation of internal conflicts, against their original wishes. In exploring this process, I place special explanatory emphasis on discerning why some reluctant state gatekeepers of IHL (Britain, France, and the United States,) went from publicly opposing legal innovations in this area to endorsing them, or least not obstructing them, at the final stage of negotiations.

Both aspects of the historical process prove illuminating. On the question of generating and shepherding normative impetus toward rule creation, I historicize the simultaneously productive and conservative attitude of the ICRC regarding the expansion of IHL to areas where states long displayed fierce opposition, like internal conflict. I examine the reasons why European states (many of them nationalist and militarist colonial empires) in the late nineteenth century were allergic to the idea of introducing international law into conflicts within their territories, as well as the events and factors that slowly pierced through the sovereignty-centered concerns of states, essentially a long litany of war atrocity culminating in the carnage of the Spanish Civil War.

In my view, however, the most revealing findings emerge from the second phase of the process: formal codification. I approach the diplomatic conferences of 1949 and 1977 as political forums in which humanitarian concerns mingled and clashed with military interests and international politics, resulting in fraught negotiations producing “face-saving” legal compromises. Here I pay attention to the social pressure dynamics between (groups of) states during negotiations, from the travaux préparatoires until the adoption of concrete texts. In doing so, I foreground the leveraging of opprobrium (shame) between majorities of states which coalesced during negotiations to support the creation of these IHL legal innovations for internal conflict (and national liberation), casting pressure upon minorities of states that found themselves standing in embarrassing opposition. Particularly, both in 1949 and 1977, Britain, France, and the United States formed a core of recalcitrant powerful states opposing the extension of IHL to internal conflict and national liberation. The book explains why, in both occasions, these skeptic countries ended up publicly acquiescing to the view of the majorities, majorities which, it seem crucial to note, included Latin American, African, socialist, as well as small European states.

Why would powerful recalcitrant states change their tune in this way? Did they somehow come to view these legal innovations as beneficial in some sense, perhaps even morally right?

Through recourse to detailed archival evidence, the book demonstrates that these states’ final acquiescence came from the perceived negative political costs of standing in universal opposition to humanitarian rulemaking, affecting their reputation and their international social status. Concretely, they saw great political damage to ensue from being seen as regressive and conservative powers by the rest of the world or by their own country’s public opinion. Most interestingly perhaps, Britain and France worried about what earning this negative social image might mean for their own postwar situation as weak(er) empires, for their political positioning in the East-West Cold War international contest over “hearts and minds” during the Cold War, and for their social reputation in the later years of decolonization. Indeed, much to their dismay, the Soviet Union had come out in strong support of extending IHL to internal conflict (and national liberation), advertising such support quite vocally in diplomatic forums, thus shrewdly scoring political points against the West.

Given this compound perception of political cost of shameful universal isolation, I show how British and French diplomats in Geneva implored for changes in their negotiating instructions  in 1949 and in the 1970s. Yet they did so quite strategically: their goal was to appear to heed the majority view, while working to ensure that any rules adopted might only become applicable with great difficulty. British and French (and in the 1970s also American negotiators) achieved this through deceptive textual wordplay, introducing ambiguities or “antidotes” within Common Article 3 and Additional Protocol I. And though Additional Protocol II featured different dynamics of state support, opposition, and compromise, the book also analyzes the dynamics behind it as representing a contested, face-saving legal compromise.

Lawmaking under Pressure offers various conceptual and historical contributions which I hope will stimulate further research, not just about IHL but about international law more broadly. These include the foregrounding of political and social psychological dynamics during legal codification, the notion of international law as a face-saving compromise, or critical historical and theoretical insights regarding the influence of colonial and racist attitudes and discourses amidst the politicized production of international law, as well as anti-colonial and humanitarian ones. My historical analysis also engages rich ongoing debates among international lawyers and international historians about the contested origins of international law and institutions.

Just as I strove to write a book that makes disciplinary and interdisciplinary contributions, this joint symposium between Opinio Juris and Armed Groups and International Law is meant to reflect this productive exchange across scholarly sensibilities. I am deeply honored and humbled by the willingness of a such an excellent cast of rising and established scholars of International Relations, International History, and International Law, as well as legal and diplomatic practitioners, to comment on my work. I thank them all in advance, look forward to reading their comments, and hope to respond to them as persuasively as possible in my concluding post.

Most of all, I thank Katharine Fortin and Ezequiel Heffes for the idea behind and organization of this symposium. Alongside them I thank Jessica Dorsey and Parisa Zangeneh for hosting it in their fantastic blogs.

To all the readers, I hope you enjoy and learn from the exchange!