Lawmaking Under Pressure Symposium: A View from Latin America

[Alejandro Chehtman is a Professor of Law at Universidad Torcuato Di Tella (Argentina) and Fellow at the Argentine National Research Council (CONICET).]

In Lawmaking under pressure Giovanni Mantilla has written an indispensable book for anyone interested in, or working on the laws of armed conflict, international legal history, and the theory of international relations (IR). The book uncovers and critically examines the process through which the international community came to regulate internal (non-international) armed conflicts. It is not common to find a book so relevant so these many different audiences, with such attention for historical detail, legal precision, and firm theoretical underpinnings. The book illuminates not only the drafting process of the laws of armed conflict, but also negotiations in international law more broadly. Instead of trying to use one big idea to theoretically account for the legal changes in international humanitarian law (IHL), Mantilla offers both a carefully situated historical reconstruction, as well as an insightful explanation of one of the key mechanisms at play in this process. This mechanism accounts not only how these rules ultimately came about, but it also accounts for many of the specific features and effects of this regulation. The book provides many insights and tells the fascinating story of how states agreed to tie their own hands, namely, sanction legally binding rules that constrained what they could do to face organized violence within their borders. I shall organize these brief comments in three vignettes, loosely connected by a perspective from the Global South (in particular from Latin America).

The first vignette concerns the scope of the central theoretical innovation of the book. A key question for Mantilla’s account is why Western powers agreed to rules that went largely against their perceived interests. This obtained both during the sanctioning of the “revolutionary” rule in Common Article 3 to the 1949 Geneva Conventions (CA3), as well as the “internationalization” of armed conflicts fought against racist regimes and colonial domination, and the somewhat relaxed the conditions required to maintain the privilege of combatancy in Additional Protocol I (1977). As he notes, these legal innovations can hardly be accounted for on the basis of the leading theoretical arguments in IR theory (realists, rational-institutionalist, domestic politics arguments, or constructivist). By contrast, Mantilla argues that these innovations were largely the result of social pressure. The process begun with certain “norm entrepreneurs” who used atrocities to galvanize support for new legal rules. He calls this stage “normative pressure” and it was characterized centrally by the patient and strategic work of the ICRC. The second stage of the process was characterized by a mechanism he calls “forum isolation”. This is “the act of standing in (near-)absolute minority during diplomatic negotiations; to find oneself literally in a proverbial diplomatic corner” (p. 23). Ultimately, the argument goes, Western powers preferred to cave and accept these regulations rather than take the blame for blocking the negotiations, and they did this as a last resort.

Nevertheless, Mantilla suggests, these legal innovations came at a price. This was the result of Western powers espousing a form of “deceptive response” Mantilla calls “covert pushback” (p. 23). That is, they ultimately undermined or limited the perceived harm that the regulation may cause to their interests by influencing the legal drafting. In the cases of both CA3 and Additional Protocol I, this was done through the use of ambiguous language in the relevant provisions, as well as the insertion of “antidotes” in other parts of these instruments, moves “carefully calculated … to complicate the application of rules they did not want in the first place” (p. 28). Indeed, France, the UK and other states initially refused to apply CA3 to the situations they faced in Algeria, Malaya, and elsewhere (p. 97), and the rule in Additional Protocol I “internationalizing” armed conflicts of peoples fighting against colonial domination and racist regimes in defence of their right to self-determination has never been applied.

The story is compelling and illuminating. The argument is well documented through internal correspondence and specific intervention by the relevant delegations of Western powers. It is further supported by the modest weight of these provisions on belligerents’ conduct. However, the identified mechanism only tells part of the story. Namely, the resulting legal framework  for non-international armed conflicts is also a product of the perceptions, strategies, and interests of countries in at least two other groups: the Third World and the Socialist bloc. Yet these are largely absent in this theoretical account. Mantilla explicitly acknowledges this fact when closing his book. He admits that although he takes seriously the importance of these states, he ultimately looks at them “through the reactions of Western states” (p. 178). One may wonder whether after looking more closely at the rest of the world, the mechanism of social pressure he carefully identifies and explains would retain such a central explanatory power over the drafting process, and resulting regulations applicable in these type of scenarios.

This qualification takes me to my second vignette, concerning the political economy of knowledge-production in international law/international relations. The fact that this book centers on a mechanism focused on the conduct of Western powers to the detriment of other important actors is particularly noteworthy because it has been written by one of the best Latin American scholars in IR of his generation. Two main drivers seem relevant here. First, as Mantilla himself recognizes, the Global North makes archives and information more easily accessible. By contrast, much of the periphery seems to make access to relevant information cumbersome for researchers, and sometimes unavailable. It makes total sense for researchers to spend our time an efforts where they will be more fruitful. Second, this focus seems partly the result of incentives prevalent in these academic fields, as many of us have observed and experienced first-hand. Academics in leading institutions in the Global North are generally more interested in insights regarding the Western Powers than in how the same picture could be theorized from a Third World/Global South perspective. This means that top academic journals and publishers, which are run by these academics, will share similar preferences. So will funders and employers both in the Global North, and increasingly in the Global South, to the extent that they value this type of output (publications in top journals and publishers). This often puts academics from the South, particularly at the beginning of our careers, in a difficult position. Together with the beneficial push for higher standards in our research often come incentives to focus on certain issues, topics, or dynamics, to the detriments of others. Notably, the point here is only that this political economy ultimately biases our knowledge-production in a way that hampers a better, fuller understanding of the relevant phenomena and leaves many areas or problems underexplored.

My third vignette has to do with possibly changing attitudes concerning the laws of non-international armed conflict, and the need to adjust some of Mantilla’s findings when looking at some contemporary contexts. He eloquently shows how states, and big powers in particular, were generally reluctant to the Geneva Conventions regulating non-international armed conflicts. Similarly, the book shows how newly created states after the decolonization process were even more averse to expanding the rules applicable to non-international armed conflicts, resulting in an austere Additional Protocol II, which also contains a more demanding threshold for its application than CA3. This implication, was strongly favoured by newly created states coming out of the decolonization process, which where themselves facing challenges, often violent ones, from internal non-state groups.

Yet over the last few years the dynamics behind this logic may be reverting, for reasons we may need to understand more fully. Colombia offers an interesting case in point. In effect, Colombian authorities went from hostility to IHL as the relevant legal framework that mediated their interactions with FARC (Fuerzas Armadas Revolucionarias de Colombia) and other non-state armed groups, to embracing it. The shift began in 2006, when future President Juan Manuel Santos was appointed as minister of Defence. It was articulated in a document entitled Integral Policy on Human Rights and IHL Law. The implications of this approach were further clarified in 2015, when the Office of the Attorney General (Fiscalía General de la Nación) issued Directive 003, which indicated Colombian prosecutors that they ought to take into consideration the principle of military necessity and allow for a wide margin of appreciation with regards to military advantage and proportionality calculations of incidental harms before prosecuting members of armed forces for alleged crimes (at para. 3.6). More recently, in its Directive 0015/2016, the Ministry of Defence created a new framework to apply IHL rules of engagement to groups previously considered criminal gangs. And in Directive 37/2017, it further stated that Colombia was fighting a non-international armed conflict against all groups that emerged from FARC. Although this finding has been criticized by many, the Colombian government has expanded this classification to further groups as they have emerged.

As Kalmanovitz has argued, this development may be connected to the fact that international human rights law as applied outside of armed conflict, contains a number of much more stringent limitations to the use of lethal force, as well as wider liabilities to legal sanction than IHL. Accordingly, states may now have greater incentives to opt for an IHL approach, even at the cost of providing some legitimacy to non-state armed groups, rather than be subjected to a more stringent set of rules. This may mean that rather to see states attitudes as seeking to avoid the application of IHL to their struggles with non-state armed groups, we need to be alert about the risk of IHL rules being deployed in contexts otherwise regulated by law-enforcement regulations, as well as attempts to lower the threshold of application of the laws of non-international armed conflicts.

To conclude, Lawmaking under pressure is a superb addition to an emerging, vibrant field that includes works such as Fazal’s Wars of Law, van Dijk’s forthcoming Preparing for War, Jo’s Compliant Rebels, Benvenisti and Lustig’s Monopolizing War, and Hull’s A Scrap of Paper, to name a few. These works have changed the way we understand IHL, its main institutions, rules and consequences by identifying the attitudes, incentives, and perceptions of its drafters and subjects. Mantilla illuminates a key aspect of this legal framework, namely, the specific interests and qualms behind the regulation of non-international armed conflicts, how this translated into the wording of the relevant provisions and into their efficacy in constraining belligerents’ actions. He does so with utmost precision and insight. Carefully reviewing this story and reflecting about it is important given the blurring of the lines between war and peace in many domestic settings and the proliferation of non-state armed groups which characterize the emerging patterns of violence that seem to be consolidating in many parts of the world. But the recent pull towards IHL to face some of these groups and trends makes understanding the relevant incentives and limitations of this legal framework seems particularly urgent, especially in Latin America.