The law of armed conflict, also known as international humanitarian law (IHL) or the law of war, is seeing reinvigorated discussion lately.
Owing to the appearance of newer threats and technologies, including cyberwarfare and autonomous weapons. In addition, the continued proliferation of gruesome violations of the law, including portions of it previously thought to be well-accepted. (1)
For practitioners, lawyers, scholars, and policy-makers, these challenges pose critical questions about IHL’s regulative adaptability and even about its very legitimacy. (2) Simultaneous with these important debates, a new wave of multidisciplinary scholarship is demonstrating that our understanding of the political origins, trajectory, and effects of the older law of armed conflict remains rather limited. That truncated grasp of the law’s complicated trajectory and nature may hinder not just how we analyze its past and present, but also how we conceptualize its potential future development.
Most obviously, the findings of this growing body of revisionist scholarship complicate the largely progressive narrative of IHL’s evolution (in the direction of greater “humanization”) which has long characterized academic debate and popular commentary. Instead, the newer scholarship foregrounds the political conditions, processes, and forces (including discourses of civilization, empire, race, and gender) that originated the law and that remain embedded within it. In a recently published article, Professor Helen Kinsella (Minnesota) and I highlight the importance of these new histories of IHL for our own discipline of International Relations. Among others, we argue that one must look beyond the traditional metric of behavioural compliance by state or armed non-state actors for comprehending the IHL’s manifold effects in world politics. (3)
Although the bald-faced hypocrisy of the Soviet position was not lost on them, Britain and France nevertheless found themselves isolated in a diplomatic corner during negotiations, which, thanks to the publicity surrounding the conference, stirred deep embarrassment in them and eventually pushed them to accommodate.
My own research so far has focused heavily on the political history of the law of non-international armed conflict, long the most prevalent form of organized violence around the world. In a forthcoming book entitled Lawmaking under Pressure: International Humanitarian Law and Internal Conflict (Cornell University Press)(4), I trace the making of this important branch of IHL, from the earliest debates held within the International Committee of the Red Cross in the mid-nineteenth century, moving through critical codification moments in 1949 and the 1970s, and concluding with the recent expansion of IHL through customary law.
Curiously, although the core IHL rule governing internal conflicts, Common Article 3 to the 1949 Geneva Conventions, has been for some time deemed a “basic rule of humanity”, until recently we lacked a clear understanding of how this critical measure emerged and was designed. Common Article 3, as international lawyers well know, contains a catalogue of essential protections for those participating in “conflicts, not of an international character”, yet it lacks a precise definition of just what such conflicts are. Significantly, this imprecision has historically served as an enabling excuse for violence-ridden states to argue against the applicability of IHL to situations that they strategically prefer to describe as “troubles”, “disturbances”, or “terrorism”.
Although it was long known that this (in)definition in Common Article 3 was the result of a compromise, the precise origins and nature of the bargain behind the compromise remained hazy. Drawing on multiple archival sources, my research reveals that Common Article 3 was the result of powerful social pressures - humanitarian and sociopolitical - in the context of the early Cold War and decolonization periods.
I show how, the shadow of the Spanish Civil War, an impromptu coalition of states (small European countries and a few Latin Americans) stood ready to endorse the extension of IHL to internal armed conflicts for the first time. Once at the diplomatic conference in Geneva, however, these states faced a small contingent of powerful opponents, notably the United Kingdom and France, which were far less inclined to accept the Conventions’ extension to internal conflict in the context of growing colonial tensions in Africa and Asia and postwar domestic fragility (particularly in France, but potentially in Northern Ireland as well). Interestingly, I demonstrate that despite much rhetorical effort, Britain and France failed to frighten their peer countries into believing that the “humanization” of internal conflict entailed the fatal risk of destabilizing sovereign states by encouraging and protecting rebellion. Perhaps most consequentially, the strongest diplomatic pressure against the European empires’ retrograde stance came from the Soviet Union and the socialist bloc, who fiercely supported legal coverage of internal conflicts while pointedly scorning Britain and France for their antihumanitarian attitude.
Although the bald-faced hypocrisy of the Soviet position was not lost on them, Britain and France nevertheless found themselves isolated in a diplomatic corner during negotiations, which, thanks to the publicity surrounding the conference, stirred deep embarrassment in them and eventually pushed them to accommodate. (5)
However, rather a genuinely changed perspective, the overwhelming diplomatic, social pressure in Geneva prompted a strategic backstage reaction by Britain and France. As both delegations secured more flexible instructions from their capitals, they reasoned that they could simultaneously arrest public opprobrium and salvage their security interests by capturing the drafting process and crafting a legal rule that would appeal to humanitarians but would remain ambiguous in a most critical place: its scope of application. Following this strategic realisation, Britain and France went from being key opponents to drafting leaders, pushing through adoption a simultaneously groundbreaking rule (which, to be sure, Common Article 3 was and remained) and subtly hampered by an ambiguity that they and many other states soon exploited in practice in places like Kenya, Aden, and Algeria.
In Lawmaking under Pressure and separate research articles, I also explore the negotiation of the Additional Protocols to the Geneva Conventions (1974-77), revealing how similar politicized dynamics of diplomatic pressure and deceptive face-saving accommodation yielded important IHL legal rules such as those dealing with conflicts of national liberation, the protection of the civilian population, and even those on conventional weapons. Importantly, I focus on the unexpected yet fundamental protagonism of groups of states not commonly credited with the advancement of IHL: Socialist bloc countries, the decolonized world, and Latin American states. (6)
As noted, one core insight of this newer research is that many of IHL’s most fundamental rules embody fragile and contested compromises whose historical legacy remains embedded within the law well after its negotiation. This makes them more rather than less interesting for understanding the operation of international law in contemporary politics. It is my hope, and the hope of many others charting this course, that these analyses will continue to spur greater scholarly interest in re-historicizing IHL and international law more broadly. In turn, these insights may also find an echo among contemporary diplomatic delegates struggling to craft agreements on drones, cyber warfare, or various other IHL matters in Geneva, Paris, or New York. Those diplomats will surely recognize the (sometimes enabling, sometimes disabling) influence of social pressures and politicized contestation in their daily work. Also, based on the IHL’s new histories, they may perhaps discern useful lessons about the methods, virtues, and enduring consequences of constructing more contested legal compromises to address old and new humanitarian problems.
(1) Emanuela-Chiara Gillard, Seventy Years of the Geneva Conventions What of the Future?
(2) Ian Clark et al., “Crisis in the Laws of War? Beyond Compliance and Effectiveness,” European Journal of International Relations 24, no. 2 (2018): 319–43; Elvira Rosert and Frank Sauer, “How (Not) to Stop the Killer Robots : A Comparative Analysis of Humanitarian Disarmament Campaign Strategies Strategies” Contemporary Security Policy 0, no. 0 (2020): 1–26
(3) Helen M. Kinsella and Giovanni Mantilla, “Contestation before Compliance: History, Politics, and Power in International Humanitarian Law” International Studies Quarterly, 2020
(4) Giovanni Mantilla, Lawmaking under Pressure: International Humanitarian Law and Internal Armed Conflict (Ithaca, NY: Cornell University Press, 2020).
(5) Giovanni Mantilla, “Forum Isolation: Social Opprobrium and the Origins of the International Law of Internal Conflict,” International Organization 72, no. 2 (2018): 317–49.
(6) Giovanni Mantilla, “Social Pressure and the Making of Wartime Civilian Protection Rules” European Journal of International Relations 26, no. 2 (2020): 443– 468; Giovanni Mantilla, “The Protagonism of the USSR and Socialist States in the Revision of International Humanitarian Law (IHL),” Journal of the History of International Law 21, no. 2 (2019): 181–211.
This article was originally posted by Lauterpacht Centre for International Law
Image by @markusspiske