Lawmaking Under Pressure Symposium: A Review

[Charli Carpenter is Professor in the Department of Political Science and Legal Studies at University of Massachusetts-Amherst specializing in international law and human security, and Director of Human Security Lab, an interdisciplinary initiative focused on science in the human interest.]

Giovanni Mantilla has written what will likely become a landmark history of the evolution of the Geneva Conventions. His monograph is simultaneously a detailed diplomatic history and an analytical argument about the power and pathology of international lawmaking. Yet like all good works of political science, Lawmaking Under Pressure is as important for the gaps it leaves open as for the questions it resolves. Mantilla provides a model, roadmap and significant supporting evidence while leaving much to be explored by other scholars and students, and articulating a method for doing so.

Mantilla begins by articulating an important puzzle: “Why would states choose to subscribe to international laws limiting their means to fend of – even squash – a rebellion, inviting commentary, critique and accusation from international audiences?”  The story Mantilla tells is as much a constitutive tale about the role of IHL in instantiating the sovereign-state system as it is about the procedural history of important provisions. But the story he articulates openly is about how recalcitrant powers both succumbed to social pressure at key junctures and also deployed deceptive tactics to blunt the impact of new rules on their sovereign or imperial prerogatives.

Strengths in this account abound. The first is the rigor with which Mantilla leverages archival and historical methods to explore hypotheses in the emergence of war law. He thoughtfulness and thoroughness of his appendix alone makes the book worth assigning to graduate seminars. He brilliantly lays out the political interests of various blocs during negotiations at key junctures in humanitarian law, situating their strategies in the context of global status politics. As a descriptive account, he illuminates important omissions in the conventional tale told in international relations of the emergence of the Geneva Conventions: the role of the International Commission of Jurists as a norm entrepreneur, for example, or the role of Russia as norm champion. And his theoretical model adds much to our understandings of where law comes from and how it functions.

Where Mantilla leaves us wanting more is in his account of international law as a compromise, urging a consideration of “underlying tensions, contestation and resistance that characterize the process of global lawmaking.” Mantilla deftly demonstrates how many key compromises in the law of armed conflict appeared to cede ground to an expanded humanitarianism while in reality protecting the interests of the most recalcitrant parties. He shows, for example, how great powers came to prefer watered down language to no language at all in the case of Common Article 3. In short, Mantilla’s argument is about the irony underpinning much codified legal text, the invisible hand of power hidden behind language seemingly nodding to humanitarian principles while in fact foreclosing their codification.

But there is another, perhaps more important irony largely unexplored in this book: that the ‘compromises’ undertaken by recalcitrant powers covertly pushing back so often became the legal clauses that, through their very ambiguity, propelled a progressive development in the law that then ensnared and transformed those same powerful actors. Mantilla’s own work suggests as much: as he argues, the existence yet inadequacy of Common Article 3 in part laid the foundation for the 1977 Diplomatic Conference that enshrined the rights of irregular belligerents and the rules of non-international armed conflicts.

Similarly, as Mantilla documents elsewhere, despite British and American opposition in 1977, the civilian immunity norm was codified, albeit weakly. The very ambiguities in that legal rule by which Western powers meant to safeguard their freedom of maneuver has instead led to a deepening and strengthening of the immunity norm itself. It has also ignited the expansion of an architecture for civilian protection that has ultimately lent so much normative pressure that the US, while not even technically bound, now champions the codified norm against civilian targeting, embeds it unquestioningly in its military culture, and even at times expends blood and treasure to enforce it.

And this pattern of what might be called normative pull-forward, can be seen beyond the cases Mantilla explores. Consider the Martens Clause, generally viewed as representing a foundational ‘compromise’ in the laws of war and which, though a direct predecessor of AP1 is curiously absent from Mantilla’s analysis. Yet in important respects, the history of this ‘compromise’ is consistent with Mantilla’s model of covert pushback as a reaction to social pressure in multilateral settings. But the Martens Clause example also demonstrates that a weak rule, codified for counter-humanitarian reasons, can easily be historicized by champions of a progressive evolution of the law. 

This moment is generally venerated as a triumph of humanitarian diplomacy by the Russian delegate, Frederich Martens, to break an impasse at the 1899 Hague Peace Conference by acknowledging the humanitarian protections of customary law where treaty law is incomplete. But as Rotem Giladi illustrates, in punting the discussion of occupied irregulars’ right to resist, Martens in fact meant not to offer them protection but to safeguard Russian interests by forestalling the insertion of a clause, at the behest of the UK and Belgium, espousing precisely their rights – in contradiction to the Russian proposal articulating instead the rights of the occupier. Martens calculated that the more open-ended text would allow the adoption of the rest of the treaty while leaving great powers cover of ambiguity in their predicted conquests.   

But if this example illustrates Mantilla’s model, it also illustrates another interesting dynamic largely unexplored in his book. For Martens was wrong: the clause for which he became famous came to be viewed and strategically deployed as one of the most progressive clauses in the laws of war, erring on the side of protecting the weak against the predations of the strong – not the other way around. The Martens Clause was invoked to justify the post-war Nazi trials at Nuremberg, a response to accusations of ex post facto justice. It was invoked in the dissenting opinion for the ICJ’s Advisory Opinion on the lawfulness of nuclear weapons. More recently, it has been the basis for global civil society campaigners to argue for a ban on autonomous weapons; for normative arguments in favor of protection of the natural environment from the ravages of war; and for questions about how to address pandemics in armed conflict. In each case, the Martens Clause is the tool of norm advocates rather than norm saboteurs.

Mantilla does not analyze this dynamic – the deployment of covertly pushed-back legal phrasings by norm advocates equally able to wield ambiguity to their advantage. The study of this secondary dynamic was beyond the scope of Lawmaking Under Pressure, and leaves ample openings for future war law scholars and doctoral candidates. But it is equally a part of the dialectic in the progressive evolution of the law, as so much future lawmaking takes as its foundation earlier ‘compromises.’ Indeed, Mantilla lists numerous other fruitful research directions as well in his conclusion, and invitation to scholars to conduct their own deep analytical dives into the history of armed conflict.

Ultimately what Mantilla shows us is that international lawmaking is a process not easily understood by models that stress only bargaining, power politics or persuasion, nor can it be accurately studied without careful analysis of the diplomatic record of multilateral conferences. His book offers an example to students and scholars of international law and norms, and a thoughtful counterpoint to conventional narratives in the history of war law.