Law, War and Letter Writing: Thoughts on Open Letters in International Law

[Dr Madelaine Chiam is an Associate Professor at La Trobe University.

Dr Monique Cormier is a Senior Lecturer at Monash University.

Dr Anna Hood is an Associate Professor at the University of Auckland.]

1. Open Letters as a Genre of International Legal Practice

It is not a new phenomenon for international lawyers to respond to (some) international events through open letters. Groups of international lawyers objected via open letters to the 2003 invasion of Iraq and open letters on international legal issues were published during the Vietnam War. What does seem new, however, is the frequency, scale and level of participation in open letters on (some) international legal issues. At least since the 2022 Russian invasion of Ukraine, there would be very few international lawyers who have not signed or been asked to sign an open letter on international law. As we write, there is ongoing public debate via open letter about the war in Gaza. Debates on key international legal issues are taking place in real time in the form of the open letter, with potentially significant consequences for both developments in and public understandings of international law.

Gerry Simpson has written that international law is not ‘merely a language by which we engage in or re-describe legal-diplomatic work’ but instead ‘what we do with words is the diplomatic work’ (Simpson 2021, 19) Adopting this characterisation, we argue that the new prominence of open letters by international lawyers makes them now a genre of international legal practice, along with, for example, judicial writings, academic texts, and diplomatic correspondence. And, as with other genres of legal practice, international lawyers must grapple with questions about the when, why and how of this new genre. What is the purpose of writing or signing open letters about international law? What are the conventions of the genre of open letters in international law? Are open letters successful at achieving their purposes? How would we know? Who are the audiences for open letters? Are those audiences being reached? How can we understand the roles of language and style in achieving the purposes or reaching the intended audiences of open letters? And how might we consider some of the unintended consequences of open letter writing in international law?

Authors of open letters on international law have considered some of these questions before. In a longer article that we are writing, arising out of the Russia-Ukraine and Israel-Gaza letters, we build on these reflections and identify three key purposes of open letters in international law. In this piece, we present an overview of our argument. We welcome feedback on all that we have written here. 

2. Purposes of Open Letters in International Law

The three purposes of open letters that we have identified are: protest and demands for action, expressions of solidarity, and public education. These purposes can be explicit or implicit and the open letters we have examined contain a combination of two or more of these purposes. We briefly discuss these purposes below before concluding with some observations about the possibilities of open letters.

Protest and Demands for Action

Most of the open letters we have examined protest specific actions and make related appeals for different actions. Protests and appeals for action in the open letters have been directed to one or more specific individuals (usually in leadership roles), governments, international institutions, international lawyers as a group, and the general public. These individuals, groups and institutions can be both addressees of the letters and/or implicit intended audiences for the letters. In many cases, however, the addressees and the audiences are not explicit, which in turn muddies the purpose of the letters.

In our longer piece, we are critical of many open letters for their vaguely suggested addressees and audiences, which make it hard to discern what the signatories want those letters to achieve. Many Ukraine letters, for example, were addressed to no one (or perhaps to everyone, and thus to no one). The action demanded in the Ukraine letters also tended to be very generalised: asking states to affirm their commitments to international law, supporting sanctions, urging collective action. In our view, there is little purpose to letters framed so loosely. Further, almost without exception, the Ukraine letters were published in international legal forums or distributed to international law email lists, making it difficult to see how the messages of the letters would reach the individuals, states or publics they gestured towards. It is notable in this context that the Gaza letters have had much more targeted aims, both in terms of who the letters are addressed to and the actions the letters are demanding. Most Gaza letters we have seen have dispensed with generalised appeals to international law and contain focussed demands that connect with the status of the signatories or specific actions of individuals or institutions. So, for example, this letter targets the actions of the ICC Prosecutor, these letters (here and here) demand specific action from their government. 

While one of the purposes of open letters in international law is protest and demands for action, the language and style they adopt might not always be appropriate for achieving this. Notwithstanding the widespread understanding amongst international lawyers of its limits, formalism remains the dominant language and style of open letters in international law. Our longer piece explores in more detail the limits and possibilities of formalism in this context. Here we make one observation about why international lawyers might adopt public-facing statements on the law that some might disclaim in internal disciplinary discussions. Maintaining formalist language in open letters can be understood as a way to insist upon the ‘lawness’ of international law in public domains. Formalism in this context foregrounds the role of the international lawyer as a public figure, one who helps to uphold a coherent international legal system and an autonomous role for international legal practice. Richard Collins and Alexandra Bohm have advocated for the specific role of international legal scholars here, suggesting that they should act as ‘caretakers’ of the international legal system in public domains. It may be that international lawyers, whether scholars or not, are driven to sign open letters in formalist language as part of an internalised ‘caretaker’ role. But it is not clear that this mode will always be consistent with either the protest or the demand for action aims of an open letter.  

Solidarity

International law open letters allow signatories to express solidarity with those affected by a conflict and with colleagues. The assertions of solidarity in open letters are generally aimed at two different communities: communities based on shared humanity and the (presumed) universality of international law and professional communities of international lawyers. Expressions of solidarity can be made through the act of participating in the letter itself and through the claims made in the text of the letter. Solidarity of both kinds appears in most of the open letters on the conflicts in Gaza and Ukraine.

In relation to all groups and communities to which solidarity is directed, questions arise about selectivity. Why this solidarity with these groups? Why now? Using open letters to signal solidarity can also create intra-disciplinary camps, indicating clearly who we think our friends are. In this sense, open letters can function similarly to the acknowledgement sections of books and articles, where, to draw again on Simpson, ‘a hinterland of emotional life is either obscured or (partially, reluctantly) disclosed’ (Simpson 2021, 39). But this kind of team-making has multiple consequences, including entrenching disciplinary, ideological and political divisions.

Division itself is not necessarily a ‘bad’ thing, of course – there are many divides in our discipline of international law. But there seems to be a level of emotion connected to open letters – who has signed, who has not, which letter(s) did they sign, which one(s) did they not sign, how can they have acted in any/all of these ways – that sets this form of team-making apart from traditional disciplinary camps. In some cases, we have observed that claims to solidarity in open letters can be read or deployed as a form of virtue-policing, which in turn can hinder discussions about the issues raised in the letter. The solidarity role of open letters connects thus with broader questions of community, selectivity, emotion and affect. These are elements that international lawyers are not especially equipped to grapple with in our professional lives, but to which we should pay more attention as this (new) genre of international legal practice expands.

Education

Open letters are usually written and signed by authors with expertise that imbues them with authority to speak on the topic of the open letter. One consequence of the assertions of expertise within open letters is that they may adopt a didactic language and style, rather than an open or dialogical one.

This didacticism, which characterises most of the open letters in international law, undermines the educative purpose that often underlies those same letters. Open letters in international law tend to treat public audiences as passive recipients of the expertise of the signatories. The letters assume that readers will adopt their ‘correct’ position once the audience’s gaps in understanding are filled by the law that is stated in the open letter. But science communicators argue that this ‘deficit’ approach fails to resonate with the public because it does not consider the different attitudes, values and worldviews of that audience.

The deficit approach is also not one that international law teachers take into a classroom where, instead, we try to meet our students on their terms, encourage them to question evidence and legal doctrines, and guide them to develop their own views on the law. Indeed, international lawyers who teach already have a good sense of how to communicate with non-expert audiences. Science communication practices also offer ideas for how to do this, for example through a ‘democratisation’ approach that seeks to engage and mobilize the intended audience. And there are models for public education in other fields. If our discipline is serious about reaching public audiences with the educative possibilities of open letters in international law, the language and style of open letters needs to hold that purpose at their core.

3. Final Observations

Rather than just something that international lawyers do ‘on the side’, we should perhaps understand open letters as part of an ongoing public conversation with multiple audiences that also includes other public forums such as blogs, media appearances, community engagements. The scale of international lawyer engagement with open letters and the debates that they contain mean that the letters, in particular, have become a key mechanism for international lawyers to engage with publics, governments and professional colleagues. Open letters are, we argue, a new genre of international legal practice and a key question is: in what circumstances do we choose to write or sign open letters? Perhaps one way to think about this is to write more open letters on more and different international legal questions. Some open letters may continue to put forward clear, succinct legal conclusions on particular issues to protest events or to affirm shared understandings of the law as a show of solidarity. Other letters might provide more reasoning on particular points of relevance in order to persuade governments to take certain actions, or to explain to the public some of the complexities and uncertainties that surround the role of international law in a particular matter. A deeper engagement with the why, when, where, who and how of open letters would, we suggest, move closer to achieving the purposes of open letters in international law.