Symposium on Rewriting Histories of the Use of Force: What Narratives Do

[Ingo Venzke is a Professor at the University of Amsterdam.]

‘This workshop where ideals are fabricated—it seems to me just to stink of lies.’

Friedrich Nietzsche, On the Genealogy of Morality (2007 [1887]), §I.14

It is a common belief that international law had little to say on the legality of the use of force before the First World War. A ‘narrative of indifference’ holds that states’ resort to force was a matter of politics and perhaps morality, but not of international law. That only changed, according to this narrative, in the 20^th century with the Covenant of the League of Nations, the Kellogg-Briand Pact, and then the United Nations Charter. International lawyers are familiar with this narrative, as it is rehearsed in many textbooks and classrooms.

But international lawyers may also know that this is a highly stylized account. It is an account that has been challenged several times by those who have pointed out how international law has been leveraged throughout the centuries to justify or to critique the use of force in international relations. One might think of Antony Anghie’s discussion of international law in the context of the Spanish conquest in the Americas, or of Gerry Simpson’s treatment of the 19^th century Congress system. But not only has the narrative of indifference emerged in spite of countervailing historical facts, it arguably prevails even today. Why is that so?

Agatha Verdebout locates the answer to this puzzle in international lawyers’ disciplinary identity and their collective memory. One might quibble whether the narrative continues to be so dominant. Are there are not more cracks in today’s ‘invisible college’ of international lawyers, and in the histories they write and recite? Even so, Verdebout’s Rewriting Histories of the Use of Force has great merit for the corrective history she provides and for her inquiry into the reasons that explain the emergence and survival of the narrative of indifference. My invitation to her, and perhaps others, connects to what that narrative has done over time. With this invitation I convey my single main point of criticism: By drawing attention to the functions that the narrative of indifference has fulfilled, Verdebout leads into a discussion of the narrative’s effects—on the practices and projects that the narrative has sustained, and the distribution of power it has helped to entrench. But that discussion is constrained, shut down both by the functionalism of her explanation, and by locating the reasons for the narrative in international lawyer’s rather steady and unitary disciplinary identity. This limits a further inquiry into what the narrative of indifference has done, in the past and in the present. It forecloses an inquiry into the classic question of who benefits.

I.

Why, Verdebout asks, has the narrative of indifference about the development of the law on the use of force emerged? And why has it survived? Upon closer inspection, it quickly becomes clear that this narrative does not square well with historical facts. States’ resort to the use of force was a matter for international law well before the First World War. It was a different law, sure enough. But it is plain wrong to say that international law was indifferent about the use of force. Agatha Verdebout shows this convincingly throughout the scholarship of the 19^th century, and with the state practice and operative legal discourse.

Her case studies are rigorous, well put, and they are many. Verdebout for example highlights that the Powers of the Concert deemed their actions in the Crimean War (1853-1856) to be ‘founded in law’. What is more, the use of law was notably not limited to interactions in the ‘center’. Of course, the law was highly skewed in great powers’ favor in forms of ‘legalized hierarchies’. Treaties of capitulation continued to justify the great powers’ use of force in the semi-periphery. In relation to the periphery, finally, legal considerations also pervaded the justificatory discourse, uses of force were often justified with reference to great power’s rights not just their sheer interests (even if rights closely mirrored interest, to be sure).

Verdebout’s contribution to revisiting the legal discourse in scholarship and state practice prior to the First World War is commendable. Her still more original contribution, however, then rests here: Though it is not supported by historical facts, what accounts for the narrative of indifference’s emergence and survival?

II.

Verdebout resorts to theories and methods relating to the history of memory—mnemohistory. Rather than ‘view[ing] the creation of collective memory solely as deliberate ideological constructions aimed at promoting a specific political agenda’, she writes, mnemohistory places emphasis on unconscious factors related to broader values and beliefs. I repeat that Verdebout thus sees the narrative of indifference as a reflection of international law’s disciplinary identity, and the underlying ideas that this identity reflects, roughly: the pursuit of order, peace, and progress through international law. Narratives play a crucial role in nourishing identities and underlying beliefs, especially in reconciling them with evidence and experience. They intervene to ease cognitive dissonances, to mediate between and square identities with reality, so to speak.

These interdisciplinary forays support Verdebout’s argument that the narrative of indifference emerged after the First World War in support of the ‘Peace through Law’ movement and as a mechanism to deal with the embarrassment of that war. The war happened, the narrative holds, not because international law had failed, but because the law was indifferent about the resort to force. The law is not the problem, its absence is. The solution: more law. With this framing, the narrative of indifference fulfills a series of important functions. It eases the cognitive dissonances between the war and lawyer’s identities. It legitimizes international law, absconds from its failures, and sustains promises of order and progress through law.

III.

Verdebout’s intervention partakes in a broader push within the international legal discipline to come to terms with international law’s track-record and its progressive potential. It does so in a way that is not overwhelmed by mythical belief, blind faith, or a kind of stubborn optimism that has turned out to be cruel. Other recent contributions within the discipline have followed a similar pattern, across different fields of inquiry. Sigrid Boysen has, for instance, drawn attention to the narrative effects that it has had when the field of international environmental law places its origins at the 1972 Stockholm Conference, thereby seeking to distance the law from its entanglements with patterns of colonial exploitation. Or one may consider Jessica Whyte’s history of human rights, which draws out international law’s association with the rise of neo-liberalism and social injustice.

The accounts by Verdebout, Boysen, Whyte and others offer better interpretations of historical facts, either because these authors themselves engage with primary sources, or they resort to historical work that does. They break with the reproduction of narratives that comes with rehashing secondary literature. And they are just less absorbed by the belief in international law as a project. Their historical accounts chime with a view of international law as part of the problem—the use of force, environmental degradation, and social injustice are phenomena that occur not despite, but with international law. As such, their accounts enable a critical, sober, and overall better assessment of the present and of possible futures, and of international law’s role within it.

IV.

Verdebout shows this potential of rewriting histories when she parallels her examination of 19^th century state practice and legal discourse with recent uses of force vis-à-vis Syria. The crass structural similarities across time—from interventions of the Powers of the Concert to present emanations of something like a responsibility to protect—continue to be nicely irritating. Introducing a sense about the injustice of past practices into present discussions questions beliefs of what is deemed right and lawful in several ways. Above all, it hints at similarities and continuities where one might otherwise see difference and progress.  It emerges that current constraints on the use of force—categorically different today from a century ago, supposedly—are undermined in similar rhetorical moves, enable the exercise of power by the already powerful, and otherwise seem rather toothless.

But what is the role of the narrative of indifference here? It is this dimension of Verdebout’s work that I wish to pursue further to ask what it is that the narrative of indifference has done, not only historically in the context of its emergence in the aftermath of the First World War, but in any moving present. I draw inspiration from genealogies that are less interested in questioning current narratives with regard their historical accuracy, but rather in what it is that those narratives have been doing over time.

Amia Srinivasan recently put it very well: With his Genealogy of Morality, Friedrich Nietzsche was less interested in showing that people have been wrong about why and how their morality has emerged. He rather wanted to show and critique what those mistaken beliefs and their related narratives have been doing. According to Srinivasan:

The crucial question for such critical genealogists is not are our representations true, but what do our representations do? What practices and forms of life do they help sustain, what sort of person do they help construct, and whose power do they help entrench?

Verdebout is constrained in pursuing those questions because she locates the reasons for the narrative of indifference in the discipline of international law as such. For one, this choice stands in the way of pursuing the classic question of qui bono. The only possible answer would be: international lawyers, period. For another, it is an implication of Verdebout’s methodology that she abstracts from questions of interests and intentions, from agency and strategy. Her explanation of why the narrative emerged is explicitly functional: the narrative met the needs of international lawyers. Such functional explanations always risk being rebuffed for their strong teleology or reproached for their suggestions of backward causality. If the narrative is instead brought about through intentional action, then it is interests and intentions, agency and strategy that matter.

Asking what narratives have done over time, however, does not require that one identifies any ‘specific political agenda’, even if such agendas ultimately become rather apparent. Verdebout’s excursion into current legal discourse—the use of force vis-à-vis Syria—does raise that question powerfully: What is it that the narrative of indifference does in the present? I recall that Verdebout’s point hinges on the crass continuities of rhetoric across time. She thereby enables critical distance and re-assessments. My invitation is to take that dimension of her work further in the spirit of a critical genealogy that focuses on narrative effects.

Current legal discourse quickly shows that the narrative of indifference does of course not just empower international lawyers, which Verdebout does not explicitly say, but which may be implied by her methodological choices. It empowers those who can continue to vest their use of force with veneers of legality. It further enables those who can use force, and can do so legally, whereas others suffer from the constraints of the law, and from what it allows. It does so, above all, by positing that the present is different, thus sustaining beliefs in progress that, in turn, cordon off critiques that arise from transhistorical similarities and continuities. The narrative of indifference works to legitimize acts of violence and cruelty that are committed in the current legal order with the help of international law, that are committed not despite the law, but with it. Discarding the narrative of indifference then helps to put legalism into its place. 

I am thinking of all the illegal uses of force over the past decades, of occupations, regime changes, liquidations, and all sorts of ‘collateral damage’. As discussions about the future of the international legal order continue in the wake of Russian aggression, the practice of rewriting histories of the use of force is most timely. It should help in any re-assessment of the role of international law across time to open up a different future.