Lawmaking under Pressure

International Humanitarian Law and Internal Armed Conflict

Giovanni Mantilla

• Publisher: Cornell University Press
• Year: 2020
• ISBN:
  9781501752599
• Topic: Jura
• Subtopic: Völkerrecht

In Lawmaking under Pressure, Giovanni Mantilla analyzes the origins and development of the international humanitarian treaty rules that now exist to regulate internal armed conflict. Until well into the twentieth century, states allowed atrocious violence as an acceptable product of internal conflict. Why have states created international laws to control internal armed conflict? Why did states compromise their national security by accepting these international humanitarian constraints? Why did they create these rules at improbable moments, as European empires cracked, freedom fighters emerged, and fears of communist rebellion spread? Mantilla explores the global politics and diplomatic dynamics that led to the creation of such laws in 1949 and in the 1970s.

By the 1949 Diplomatic Conference that revised the Geneva Conventions, most countries supported legislation committing states and rebels to humane principles of wartime behavior and to the avoidance of abhorrent atrocities, including torture and the murder of non-combatants. However, for decades, states had long refused to codify similar regulations concerning violence within their own borders. Diplomatic conferences in Geneva twice channeled humanitarian attitudes alongside Cold War and decolonization politics, even compelling reluctant European empires Britain and France to accept them. Lawmaking under Pressure documents the tense politics behind the making of humanitarian laws that have become touchstones of the contemporary international normative order.

Mantilla not only explains the pressures that resulted in constraints on national sovereignty but also uncovers the fascinating international politics of shame, status, and hypocrisy that helped to produce the humanitarian rules now governing internal conflict.

1

SOCIAL PRESSURE IN INTERNATIONAL LAWMAKING

Historically, states have paid rebels few niceties. International doctrines existed for centuries to elicit restraint in war between states, yet older customary international law said little about internal war, and what it said was not commonly taken seriously as binding. And while one can point to historical cases of governments mired in internal war that proposed and signed good conduct agreements with insurgents, states long neglected or refused to create similar international rules for internal conflicts, even after the modern era of law of armed conflict treaties began in 1864–65.

This long historical trend began to change in the twentieth century. Since 1949, states have codified binding international humanitarian law (IHL) standards encouraging battlefield restraint and protection in various forms of armed conflict occurring within their borders.¹ The central legal instruments of this kind are Common Article 3 (CA3) and the Additional Protocols (APs).²

The emergence of international rules governing battlefield conduct during internal conflict is a startling outcome in world politics. Why would states choose to subscribe to international laws limiting their means to fend off—even squash—a rebellion, inviting commentary, critique, and accusation from international audiences? Since the international law of internal conflict strikes at the very core of state sovereignty, one of the basic institutions of modern international relations (IR), its historical adoption constitutes a real puzzle for scholars of IR, history, and law.

Although from our vantage point international concern about internal atrocity is commonplace and the legal means to eradicate it seem integral to the contemporary normative order, the regulation of internal armed conflict has been invariably controversial among states. A strict desire to preserve state sovereignty for a long time advised against it. International society’s great powers, especially Western liberal empires, opposed them fiercely. And even the leading nonstate organization in the field of practical and legal humanitarianism, the International Committee of the Red Cross (ICRC), hesitated for decades to endorse their creation. Yet despite adverse historical precedents and powerful state opposition, under certain conditions codified international legal standards eventually emerged to address atrocity in internal armed conflict.

If the existence of these standards itself is puzzling, so are the timing of their codification and their design. CA3 and the APs both emerged in politically convoluted times (1949 and the 1970s) marked by Cold War contention, Western fears of contagious communist rebellion, and imminent or ongoing (and sometimes violent) decolonization. What could have driven states and fragile empires to commit to international legal standards at these precise times, considering the political and military risks they implied (including legitimating and being obliged to show restraint toward communist and colonial insurgents)?

Regarding their design, some of these standards were designed without clear safeguards for states against rebel nonacceptance or noncompliance. Famously, CA3 lacks a condition of rebel reciprocity, binding states unilaterally regardless of their nonstate opponent’s attitudes. Additional Protocol II (APII), for its part, neglects explicit mention of the armed nonstate actors to which it applies. Also conspicuously, Additional Protocol I (API) includes a large list of military and humanitarian obligations that national liberation groups should legally try but might perhaps hardly be expected to apply, seemingly placing the legal burden on states’ shoulders only.

Existing theoretical arguments on the emergence and negotiation of international rules cannot explain the origins and design of IHL for internal armed conflict. These humanitarian standards were not created for instrumental or functionalist reasons, due to generalized humanitarianism, or through great-power imposition. Instead, as I explain in this book, they were born out of a long and tortuous political process of social pressure.

This chapter presents a theoretical framework to understand this process of rule emergence and codification. I develop a two-stage argument. The first stage addresses the process through which the humanitarian legalization of internal conflict became an issue of international concern. I explain how and why the principal “norm entrepreneur” behind IHL, the ICRC, initially hesitated for several decades to push for treaty-based legalization of internal conflict and, eventually, after repeated civil war atrocity and bottom-up activist pressure, fought to place it on states’ legal agenda.

The second stage addresses the diplomatic negotiation of specific legal rules and instruments. I foreground the importance of a specific mechanism of social pressure—forum isolation—during legal codification processes, amid international political contests among states for status and social reputation.

The outcome of this long process of rule emergence, characteristic of a heterogeneous international order riven by political diversity, attachment to sovereignty, and growing rhetorical commitment to “humane” legal internationalism, is one of political, moral, and legal compromise. This is to say that, over time, with much difficulty but with important successes, a fraught body of humanitarian rules emerged over the twentieth century to temper internal atrocities, imperfectly but indelibly chipping away at stringent notions of state sovereignty.

Four Arguments about International Lawmaking

IR scholars have developed important theoretical constructs to explain why and how international rules emerge. Characteristically, they make at least four types of arguments: realist, rational institutionalist, domestic-political, and liberal constructivist.

The realist argument insists that powerful states make and break the rules as they wish; rule making is treated as an exercise in great-power politics or, in a critical-theory formulation, as domination.³ Presumably, then, powerful states may have at various points in world history found it convenient for whatever selfish reasons, to draw up international law for internal conflict, imposing their views on other states.⁴

In contrast, rational-institutionalist arguments commonly highlight the utility of international rules as devices that states use to achieve common goals; rule making for states is a functional, cooperative endeavor.⁵ Following this logic, one may think that states indeed found it useful to create international law for internal conflict, maybe in an attempt to “level the battlefield” with rebels and elicit reciprocity.

Domestic politics arguments generally come in two flavors: they point to the interests or the identity of states, or both, to explicate states’ desire to create international rules; rule making occurs either to further the instrumental goals of a subset of societal actors or to enshrine the identity and values shared by the states that make the law.⁶ In this view, interest groups within states might have lobbied their governments to make these international standards, perhaps with the instrumental goal of preventing future atrocity at home or contain negative humanitarian externalities. Alternatively, states embracing prohumanitarian sentiments (liberal democracies, most likely) may have coalesced internationally to create these rules.

A traditional constructivist argument would highlight the moral and deliberative origins of rules; indeed, in a prominent model of international norms dynamics, new norms emerge because entrepreneurs work hard to persuade others of their value. Advocates’ persuasive, reasoned argumentation generates new norms that often later crystallize into law.⁷ Accordingly, we may expect that morally motivated actors historically lobbied and persuaded their peers, even the recalcitrant ones, getting them to accept new rules to humanize internal conflict.

In this book I approach these venerable lines of argument critically. Notice two traits shared by them. First, according to each at the end of a lawmaking process there would appear to be more or less clear winners and losers. Powerful states, rational-strategic states, moral entrepreneurs, or domestic interest and value groups could in principle be identified and given credit as victors over weaker, stubborn, or recalcitrant peers and actors. Second, for each theory, the predominant reasons and ways in which agreements are struck should be readily discerned and traced back to one favored factor and negotiation dynamic: relative power (coercion), cooperative calculation (functional bargaining), domestic lobbies (“intergovernmentalism” or “ideational coalition building”), or moral and reasoned argument (persuasion). And at the end what we encounter as outcome is either an imposition, a contract, or a norm which may or may not diffuse more broadly, pending formal signature and ratification.

While these four views carry heuristic power and are appropriate to explain certain cases or aspects of international cooperation and lawmaking, they must be adjusted to account for the complexity of the case at hand and beyond. In my view, by shaping the puzzle of rule creation around a preferred factor, each of these standard theoretical arguments in fact unnecessarily smooths over the underlying tensions, contestation, and resistance that characterize the process of global lawmaking.

I recognize that the four arguments just described are probably better conceptualized as ideal types since, in practice, most scholars of international law, norms, and cooperation understand that the empirical reality of agreement making is far murkier. Put otherwise, we know that embedded in most international agreements there are shades of material power, instrumental interest and calculation, and ethical and moral considerations. The best applied scholarship acknowledges it. Yet it remains true that IR scholars continue to rely on these ideal-type arguments to adjudicate between “correct”—indeed, “better”—theories, well despite commendable calls for “eclectic” theorizing.⁸

I proceed differently here. My theoretical goal in this book is to offer an argument which takes as its basic premise the notion of international law as a compromise and formulates a complex, historically grounded model that combines and takes into account actor sociability, rationality, and power, moving us away from visions of international lawmaking as imposition, bargaining and exchange, interest- or identity-furtherance, or persuasive success.

Making these conceptual moves arose as a necessity as I evaluated the empirical evidence gathered for this project. Simply, I could not otherwise have captured the history and the nature of the rules of IHL for internal conflict. These are international rules which emerged not because powerful states wanted them, and yet those states played a crucial role in their making. Certainly some morally motivated actors (including some states) were at the forefront of their codification, and this mattered tremendously. Yet advocates’ sheer persuasiveness or moral outrage was not always or alone decisive in rule adoption. As I explain, states’ domestic interests and identities were prevalent forces, yet they often went against rule creation or operated in counterintuitive ways. Finally, instrumental coordination as a shared motive for rule making here was not only largely absent, but when it was expressed (in seeming attempts to make the law more “credible”), it was introduced as means to hinder the law’s application, not to enhance it. Above all, the ghost of legitimating and empowering rebels through the creation of the law worked to spoil instrumental reasoning. At the same time, social pressures mobilizing international opprobrium and the perceived fear of delegitimation via status or reputational damage facilitated the rules’ adoption and shaped their design.

Why a Historical Approach Is Necessary

This book is as much a history of IHL for internal conflict as it is a theoretical effort to understand its origins. Why is a strongly historical approach necessary?

Bluntly stated, I view international law as a product of politics in historical context.⁹ Modern diplomatic codification is by now an old political institution, dating back at least to the mid-...