17 Feb Symposium on Rewriting Histories of the Use of Force: A Rejoinder
[Agatha Verdebout is a Senior Researcher at Groupe de recherche et d’information sur la paix et la sécurité (GRIP).]
I would like to start by thanking all the contributors for taking the time to read and review the book, as well as Alexandra Hofer and Opinio Juris for their interest in my work and the effort they have put into organising this written symposium. I am grateful for their comments, suggestions, questions and invitations to elaborate on some of the claims I make in Rewriting Histories.
Reading the reviews confirmed something I already knew at the time of writing: different people, coming from different perspectives and backgrounds, would look for different things in this book. This, however, can lead to some misunderstandings about its object, purpose and scope. I would therefore like to take this opportunity to briefly restate and clarify what these are.
As Mary O’Connell put it, the book seeks to solve a ‘mystery’ (I guess my name is Agatha for a reason). The mystery is as follows: why do international lawyers tell the history of the prohibition of the use of force the way they do when heaps of evidence seem to invalidate their (hi)story? To answer this question (and solve the mystery), the book is constructed as a three-act play. The first two serve to set the stage, heighten the tension, by engaging with primary historical sources in order to evidence and grasp the extent of the discrepancy between the ‘narrative of indifference’ and pre-WWI doctrine and state practice. The final act, which is where the heart of the book lies, provides a dénouement. It argues that the History of the prohibition of the use of force was rewritten after the Great War to fulfil a specific function: salvage the (fragile) discipline of international law from its failure to prevent, or mitigate, the horrors of that conflict.
The ’rewriting’ process the title of the book refers to is thus essentially that of interwar lawyers, rather than my own. Of course, going back to historical primary sources (doctrine and state practice) the first two parts of the book pave the way for an alternative, indeed Eurocentric, history. But, as explained in the introduction, the ‘ultimate purpose is not so much to offer [a] more accurate, version of [..] history, but rather to examine the preconceptions (and misconceptions) upon which our present narrative relies’ (p. 11). This narrative was mostly built by ‘European’ international lawyers based on Eurocentric sources, i.e. European doctrine and European state practice. When I say that relying mostly on western sources is not ‘problematic in the context of this research’ (p. 17), it is because my aim is to point to the internal incoherences of a western and western based narrative. This could only be done by using the same material the narrative was itself built on. While reading the first two parts of the monograph, it is therefore paramount to remember that it does not seek to rewrite the History. I wish to reassure Alonso Gurmendi that if this had been the purpose, the methodology, the choice of sources and the overall tone of the analysis would have been quite different.
The issue of eurocentrism is also present in other comments. One connects to the identity of international law as discipline and a profession. The question that arises is whether we can really consider that international law has one identity and that international lawyers across the globe share a core of common beliefs and values. As Miriam Bak McKenna indicated, Anthea Roberts argued in her book Is International Law International? (2017) that law is not necessarily perceived, taught and studied uniformly across borders. This is why I sought to analyse non-western textbooks (see the bibliography pp. 334-340), although I rapidly found myself confronted with an availability issue. In spite of this, I still felt that some common features about how international lawyers thought about the role of law in society (i.e. as a vector of international progress and order) came through (see also Skouteris and Prost). Still, it might seem reductive to speak of the ‘profession’s’ belief and faith in the project of ‘peace through law’. This is especially the case when one factors colonisation, and how international law helped it, into the equation. To suggest that international lawyers adhered to these values while partaking European imperialism may appear peculiar, as Siddarth Mallavarapu points out. I agree and do not think it is necessary to go back to the well-known highly racialised and exclusionary theories of the hierarchy of states nineteenth and early twentieth century authors elaborated to understand that the lofty goal of ‘peace amongst the nations’ was geared towards western nations. For them, war was not genuinely problematic or in fundamental contradiction with the idea of law as long as violence was projected to the ‘outside’. As Isa Blumi underlines, ‘scholarship demonstrated a contradictory indifference to some cases of state violence’ (emphasis in the original).
In this respect, I would also like clarify that the book does not aim ‘to rehabilitate’ nineteenth century scholarship as Blumi suggests. My point is rather that we should take note of what they had to say about the use of force, not to draw inspiration but to reflect critically on has or has not changed. I am well aware of the role the international lawyers of the time played in justifying and enabling colonisation and imperialism, whether through their scholarly writings, as advisers to their governments and, sometimes, as handmaiden to corporations. Although not centre stage, this comes through in different parts of book – for instance, when it mentions the entanglements between peace movements, international lawyers and wealthy industrialists (pp. 286-297) or how some scholars believed free trade and capitalism to be of the highest moral value (p. 277). The protection of trade, commerce and economic interests were often amongst the elements that prompted western states to resort to coercive measures, especially in the ‘semi-peripheries’ and ‘peripheries’. They did not hide it: the discourses they deployed in their diplomatic correspondence and war declarations clearly referred to these interests. Surely, this aspect could have been emphasised more.
The interests of Great Powers were usually window-dressed by resorting to the broad concept of ‘self-preservation’; so broad, in fact, that Mohamed Helal argues it emptied any potential rule on the use of force from legal content. This argument is addressed in the book (pp. 204-205). I do not deny that self-preservation was a ‘stereotyped plea’ (Brownlie, 1963) to justify any and every use of force. However, there is a (big) step between saying this and asserting that international law did not set any rules on the use of force. I would actually contend that acknowledging the principle of self-preservation is admitting that there were rules – theoretical and ‘porous’, for sure. The book does not intend to claim that nineteenth century jus ad bellum was a ‘robust’ framework, but neither is today’s. I do not mean to be underappreciative of the value and significance of the LN Covenant or UN Charter. They are meaningful, but what we do with them is more meaningful. When I draw a parallel between self-preservation and self-defence, it is to warn against the effects of extensive interpretations of Article 51. If one believes that the uses and abuses of self-preservation ‘eviscerated any putative rule of non-intervention’, then the book is an invitation to reflect critically on what we are doing now.
This brings me to two questions, one by Helal and one by Ingo Venzke: Was the narrative successful in resuscitating confidence in international law? What has it done over time and whom does it benefit today? My answer to the first question is that it was successful enough to restore confidence inside the discipline. The rationalisation it provided for the events of WWI was for internal consumption – just as Marion Keech’s explanation of why the world did not end on 21 December 1954 was meant to preserve the Seekers’ faith (p. 279). Some (Pillet and Morgenthau) left the discipline – just as some Seekers, less invested in the faith, abandoned the sect. As a discipline and as a profession international law survived and arguably even thrived. From this perspective the narrative was successful. It still is. It continues to preserve the idea of progress through law and enable the discipline to carry on despite being regularly attacked, especially when it comes to use of force. It keeps the illusion that we are fine because we have rules. I also agree with Venzke analysis that it allows states to somewhat downplay the effects their actions have on the overall legal framework. From this point of view, by providing an ‘affective’ explanation as to why international lawyers tell History the way they do, the book can be viewed as a call to reclaim agency and take responsibility for what we do with the law. Maybe, as O’Connell suggests, this requires us to reinject some dose of naturalism (or idealism) in our approaches. Maybe we need to speed up our dialogue with other social sciences, especially international relations, and take them more seriously as Mallavarapu recommends. I do not have the answer, but what I know is that I conceived this research as a ‘kick in the anthill’ to prompt reflection on how to move forward. In light of this symposium, I guess (or hope) the book, like the narrative of indifference, is somewhat successful.