Symposium on Rewriting Histories of the Use of Force: Introduction

[Alexandra Hofer is Assistant Professor in Public International Law at Utrecht University.]

I should probably start by admitting that I am not indifferent to Dr Agatha Verdebout’s Rewriting the Histories of the Use of Force: The Narrative of ‘Indifference’ (apologies for the poor wordplay).

I first heard Agatha present her research in December 2015, during one of the seminars of Ghent University’s International Order & Justice Lecture Series. At the time, I was a PhD student at Ghent and I was struggling with my thesis. I remember being really impressed by and returning to my desk thinking “I wish my PhD was as cool as Agatha’s” (something that would only cross a PhD student’s mind). Her research was what one may qualify as “eclectic” as she drew upon various disciplines. This appealed greatly to me and made me realize that there were a variety of manners in which research in international law can be undertaken (my supervisor may have been somewhat less enthusiastic, but thankfully he was understanding).

Initially, Agatha had set out to study how international regulated the use of force in the pre-UN Charter era. Her monograph thus fits within international law’s turn to history. As is well known, the common trope is that before 1945 the use of force was unregulated in international law. In other words, international law was indifferent to states’ resorting to forcible methods to resolve their disputes. As the story goes, this changed in the 20^th century – especially once the UN Charter was adopted. Today, the prohibition of the use of force is considered to be one of the most important developments in international law, proof of the system’s progress following the two World Wars. Nonetheless, Agatha’s research found that, contrary to the widespread belief, international law was not indifferent; there were rules that governed states’ recourse to war in the 19^th and 20^th centuries. Not content with having disproved the narrative of indifference’s truthfulness, she also sets out to understand how it emerged.

It is at this point that her study can be situated within the growing trend of sociological and psychological approaches to international law, and the niche area of emotions and international law (albeit this field of research is also gaining traction). To explain how the ‘narrative of indifference’ came to be, she draws from mnemohistory and turns to the well-known psychological phenomenon, cognitive dissonance. She argues this narrative emerged because international lawyers wanted to safeguard their professional identity, which was closely tied to their beliefs about the power and purpose of international law as a system that maintains order by ensuring peaceful inter-state relations. Faced with the indisputable fact that the legal system had failed to prevent the horrors of two global conflicts, international lawyers developed the narrative of indifference to maintain their faith in their discipline. The story helped international lawyers cope with international law’s lack of effectiveness: international law had not failed to prevent war because there were no such legal rules.

Fast forward to today and one may wonder: what has changed? One hardly needs to be reminded of current events and past occurrences to realize that developments in international law have not prevented recourse to the use of force, and that many breaches of this prohibition were committed, are being committed or were backed by permanent members of the UN Security Council – the very body that is intended to maintain international peace and security. Yet, somehow, although there are acknowledgements that the system is imperfect, the discipline does not seem to be ‘in crisis’ (and this despite many conferences on the topic). Have international lawyers become accustomed to this state of affairs? Do they minimize its implications (which would be indication that cognitive dissonance is still at play)? Or maybe what really matters is that we all continue to be believers? It is hard to read Agatha’s book and to not turn inward: what is my ‘identity’ as an international lawyer? Am I committing to a narrative in order to commit to the discipline? And if I am, from where does this storyline emerge? How much agency do I have in this situation? One could push the reasoning even further: to the extent that international law would be based on a narrative (or narratives), is it any wonder that it lacks effectiveness? After all, can we expect a legal system to respond to contemporary challenges if it is based on a partial account of reality? Psychologists will tell us that narratives are necessary cognitive tools for humans to cope with the complexity of navigating everyday life; there is simply too much information for us to process. But what is it our narratives are filtering out, are they safeguarding us from complexity or inconvenient realities?

I have raised a variety of questions here, and the contributions to this symposium raise many more – all this is testimony to Rewriting the Histories of the Use of Force’s different layers of analysis and its thought-provoking content. The symposium begins with a discussion on the history of the use of force and its politics. Mohamed Helal calls into question Agatha’s claim that international law “ring fenced” recourse to war; if there were rules, they were undefined and prone to abuse. Like Alonso Gurmendi, he draws attention to Latin America’s role in the formulation of the principle of non-intervention. Alonso Gurmendi’s contribution brings to the fore Latin American scholars who were not included in Agatha’s study but whose views would have nonetheless supported her argument that law was not indifferent to the use of force. To fend off European colonization and US intervention, countries in South America rallied around non-intervention. As such, they participated in the progressive development of modern-day rules on the use of force. On the other hand, according to Mohamed Helal, the very fact these states had recourse to this principle as a bar to US and European interventionism is testimony to the fact that international law’s regulation of force was weak.

Isa Blumi focuses on the extra-legal influence of the Western capitalist agenda on the development of the rules that sought to govern the use of force, drawing attention to international lawyer’s conflict of interests. His analysis recalls accounts of Hugo Grotius’ ties to Dutch mercantile interests (here and here). Whereas Grotius is often seen as the ‘father of international law’, his work was influential in defending Dutch economic and colonial interests abroad. Taking into account the history of jus ad bellum and its links with colonial pursuits, Siddharth Mallavarapu raises questions on international law’s present identity and purpose: can it be truly cosmopolitan, or it is forever bound to be at the service of imperial powers? Both Mohamed Helal and Siddharth Mallavarapu call on international lawyers to reconsider their relationship with international politics. Politics should not be seen as law’s ‘Other’, but it as a necessary partner to achieve its purpose (whatever that may be).

The symposium then turns to the second prong of Agatha’s study. Miriam Bak McKenna discusses the affective life of international law(yers) and the emergence of narratives. Ingo Venzke invites us to focus on the present and to consider the role narratives play in the discipline, raising questions on the practices legal narratives help sustain and who benefits from them. The symposium ends with Mary Ellen O’Connell, who discusses the way forward and proposes a (re)turn to natural law. If the narrative of indifference emerged as a means to cope with international law’s failure to prevent two world wars, then we need to return to natural law – which encompasses norms that are binding even if consent is not given – to fill in this gap.

The commentaries to Rewriting the Histories of the Use of Force include some critiques of Agatha’s argument and methodology. This is probably to be expected. After all, it is not nothing to call into question a discipline’s belief system (to even suggest it is a belief may be confrontational) and to discuss the identity and the emotions of those who engage with that belief on a regular basis. That said, none of the contributions fundamentally disagree with Agatha’s primary theses but add more nuances to the methodologies employed and the arguments she puts forward. Ultimately, Agatha Verdebout’s monograph leaves plenty of food for thought.