“Lawmaking Under Pressure” Book Symposium – Squaring the Circle

About the author(s):

Boyd van Dijk is a McKenzie Fellow at the Melbourne Law School. He received his PhD in History from the European University Institute. His most recent publications have appeared in the American Journal of International Law, Law and History Review, and Past & Present. His forthcoming book, Preparing for War, will be published by Oxford University Press in late 2021. It provides a new revisionist history of the 1949 Geneva Conventions, the most important rules ever formulated for armed conflict. Contact details: boyd.vandijk@unimelb.edu.au.

The adoption of Common Article 3 (CA3) is one of the most mysterious stories in the making of the 1949 Geneva Conventions. The final vote on the article took place in complete secrecy. Even while scholarship analyzing the Conventions’ past is expanding every year, scholars are still in the dark about Common Article 3’s genesis.

Giovanni Mantilla’s extraordinary book, Lawmaking under Pressure, does an impressive job at trying to unravel the article’s mystifying drafting history. He is one of the first scholars to extensively use archival materials from both state and non-state archives to solve this enigmatic puzzle of history. He has read hundreds and hundreds of minutes, reports, and memos requiring momentous levels of intellectual stamina. In this way, he has not only uncovered the crucial social pressuring mechanisms behind CA3’s adoption but also demonstrated greater sensitivity to historical insights than most of his international relations (IR) colleagues have done so far. This is a particularly impressive achievement considering the fact that IR scholarship does not always fully reward such type of qualitative historical analysis.

Mantilla’s exceptionally detailed archival reading of the Conventions leads to a whole range of brilliant insights: he shows the extent to which the Great Powers were on board with the idea of regulating non-international armed conflicts (NIACs); how European colonial powers tried to undermine this proposal; why they finally signed onto the Conventions; what role officially neutral actors such as the International Committee of the Red Cross (ICRC) played in this highly politicized process; how CA3 changed the history of international law and global politics in remarkably important ways; and why this drafting history matters for understanding international humanitarian law’s (IHL) challenges today.

Common Article 3

This review of the book’s third chapter, ‘Squaring the Circle,’ reconstructing CA3’s drafting history, presents two counterpoints to Mantilla’s analysis, with the goal of sparking a broader debate about the future directions of IHL history. The review’s first counterpoint concerns Mantilla’s telescopic discussion of the immediate post-war years, during which CA3’s drafting was being extensively discussed. In the author’s view, the most important element driving this process forward was a collection of social pressuring mechanisms that ultimately pushed the European colonial powers over the edge in 1949.

This innovative argument presenting the post-1945 period as an evolutionary social pressuring moment whereby different ‘norm entrepreneurs’ gradually built up political pressure on the Great Powers to create a perfect legal storm leading to the article’s adoption is an intellectually attractive one. Among other things, it helps us to see what role social pressuring mechanisms have played in lawmaking processes like the Conventions’ making, and how twentieth-century global legal ordering has worked in practice.

One of the dangers of this social mechanism approach is that sometimes neglects the broader impact of structural phenomena shaping the character of the international legal system in this period. Strikingly, the author’s subdued discussion of the impact of human rights debates and decolonization on CA3’s making is telling in this regard. What I found most striking about the immediate post-war period was less the mechanism of social pressuring, as Mantilla emphasizes in his chapter, than the radically changing conceptions of (colonial) sovereignty during these years of anti-colonial resistance and rights’ debates. In fact, declining imperial powers even asked for ICRC intervention in their wars of decolonization after 1945. In previous days, they had often resisted international interference in their colonial affairs and claimed absolute sovereignty, often on racialized grounds. By the mid-1940s, however, anti-colonial resistance forced imperial states to rethink their original position and imagine the potential application of humanitarian law to colonial wars. This critical shift ultimately facilitated the emergence of a set of new legal sensitivities, with critical consequences not only for pre-existing ideas of colonial sovereignty, but also for the development of humanitarian law after 1945. Indeed, as I have argued before, ICRC legal experts exploited this precedent while laying the foundations for the first binding article in colonial wartime – i.e. Common Article 3.

Human Rights and Decolonization

By contrast, Mantilla’s restricted discussion is much more focused on the events leading up to the diplomatic conference in 1949 than the world outside of Geneva. Similarly, he is less interested in the conceptual effects of human rights’ debates in the 1940s on the Conventions’ drafting process. Even more interestingly, he starts his book by juxtaposing the ‘failure’ of Paris to recognize a right to resistance as part of the non-binding Universal Declaration of Human Rights (UDHR) with Geneva’s ‘success’ in producing a binding article for NIACs – even though he does not mention Geneva’s failure to include partisans under the POW Convention. Mantilla’s claim is legally accurate but might give the wrong historical impression – as if human rights and humanitarian law were two fundamentally distinct fields in the 1940s.

In reality, many of the leading drafters of the Conventions saw a much more intimate connection between these fields of international law than Mantilla and many others have suggested previously. For instance, while giving a speech at the Conventions’ signature ceremony in December 1949, almost one year after the Declaration’s acceptance, president Max Petitpierre argued that in adopting ‘rights and [the] respect for the human person’ in wartime, these treaties shared the ‘spirit’ of the UDHR. This statement was meant not just as a reminder of the Declaration’s upcoming anniversary a few days later, but also as a means to emphasize their common viewpoints and principles. Likewise, the text of Common Article 3 was a based on a rejected human rights preamble for the Civilian Convention in which rights’ conceptions played a central role.

Secret Ballots

A more important second counterpoint to Mantilla’s analysis concerns his archival reading of the final stage of CA3’s drafting process. As said, the birth of this provision was mysterious and extremely contentious in nature. This has mainly to do with the plenary’s decision to hold a secret ballot during the final stage of the voting process – a proposal which was sponsored by the United Kingdom and put forward by one of its former colonial servants, a Burmese general whose government was trying to put down an insurgency at home. As a result of this secret vote, scholars are now left with an incomplete record of CA3’s voting procedure, as well as a conspicuously vague idea of imperial voting behavior.

Mantilla’s careful archival reading is sensitive to these problems, but he makes on several occasions quite far-reaching inferences about the voting behavior of central actors – from France, Great Britain to the United States – that raises a number of questions. The suggestion that the archival record provides conclusive evidence or a smoking gun in this case is not entirely compelling. The exact voting record remains unknown for scholars today and was unfamiliar even to the most intimate observers at the time. Moreover, Mantilla’s analysis seems to rest on the assumption that social pressuring mechanisms had their most dramatic effect when there existed substantial interest in Geneva’s deliberations. In reality, the Swiss hosts complained about the lack of world attention for the Conventions’ discussions in Geneva, in 1949. These issues raise broader questions about the extent to which Mantilla’s theory of social pressuring mechanisms can fully explain the contingent emergence of CA3, in August 1949.

Remaining Puzzles

Even if we accept some of the author’s far-reaching inferences, we are still left wondering why the imperial powers – including the Soviet Union – gave their support to the idea of regulating internal wars in the first place. Why were they willing to give up parts of their sovereignty at its most fragile moment of existence? Mantilla’s chapter offers a whole range of interesting answers to this central question, but he cannot entirely solve the puzzle of CA3’s breakthrough – in part because of the incomplete archival record. When reading his chapter, the reader keeps thinking about why French imperialists designed the text for CA3; why they claimed that this proposal underlined their proclaimed agenda of promoting human rights on the global stage; why the British supported this plan (assuming they did so until the very end of this drafting process) even when it was effectively rejected in a sub-committee; and why the Americans promoted the secret ballot vote in August 1949.

These issues need to be studied from different analytical viewpoints in the future and cannot be explained solely by social pressuring arguments. Otherwise scholars might do damage to the highly contingent emergence of CA3 in 1949. Mantilla’s fascinating analysis compellingly shows that almost every type of violence occurring within states was discussed already in the 1940s. He also demonstrates that the major imperial powers deliberately left CA3’s scope vague in order to protect their core security interests. And his work should inspire other scholars to produce more entangled histories of the Conventions’ making in which central issues such as regulating internal wars are no longer studied in isolation.

Instead, if we wish to gain an even more comprehensive understanding of the Conventions’ past, we should try to bring the law’s different elements into a broader dialogue – from partisan warfare, civilian protection, to internal wars, include more historical context, and make this all part of a truly interdisciplinary conversation. Scholars of humanitarian law cannot escape the reality that the Conventions’ leading drafters saw these central questions of humane warfare, featuring gender, race, power, rights, and sovereignty, as being inextricably linked. We should take this lesson on board when returning to Geneva’s deliberations in the future.

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