“Lawmaking Under Pressure” Book Symposium – A retelling of the history of internal conflicts: political fireworks, a post-script to the ‘dreaded article 1’ of API and an agenda for future research

About the author(s):

Katharine Fortin

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

Lawmaking under Pressure is a fascinating chronicle of the drafting history of the treaty provisions that apply to non-international armed conflict. Starting in 1863, the book asks why and how states, commonly concerned with their sovereignty – particularly regarding internal security affairs – have adopted legally binding international rules to constrain their ability to counter organized violence within their borders. Rather than focusing on the substantive provisions of the articles, the book takes the reader backstage into the diplomatic world behind global lawmaking, highlighting the pressures, compromises, face-saving and political maneuvering that dominate the treaty-making processes.

Drawing on archival records relevant to the drafting conference for the Geneva Conventions and Additional Protocols, Mantilla shows how the drafting States conducted a complex juggling act during the Diplomatic Conferences, weighing and re-weighing different but interconnected goals and priorities on a daily basis, paying just as much heed to political dynamics relating to the power relations in the negotiating room, as to the substance being debated (i.e. the legal regulation of armed conflict). The book provides a fascinating insight into the political history behind the changing text of common Article 3, Article 1, 43 and 96  of API and Additional Protocol II. In this post, I will briefly focus on what I find particularly valuable about the book and some issues on which I would have liked a little more detail.

High tensions and political fireworks

One of the great pleasures of  this book is the engaging manner in which it is written. Particularly in chapter 3 and 5 which deal with the drafting of common Article 3, Additional Protocol I and Additional Protocoll II, Mantilla vividly brings the backstage diplomatic atmosphere to life by peppering his writing with quotes from diplomatic sources that betray rising anxiety (‘our delegations worst forebodings…. Have come true….”) (p87), a weary pragmatism (”half a loaf is better than no bread”) (p95) and emotion (the Swiss…. thought the session was “deplorable” and declared that they were ready “to do what they can to pick up the pieces”, the French delegation was “depressed”) (p149). A lavish employment of these kinds of quotes, combined with enjoyable sub-titles like ‘Living to Fight Another Day’, ‘The Moment of Truth’ and ‘A Crucial Meeting’, ‘Pressured Empires Strike Back’, brings the high drama of the Diplomatic Conferences to life. Mantilla gives the reader a sense of the tensions and political fireworks going on both behind the scenes and in the negotiating rooms. As the drafting process goes on, Mantilla also feeds these emotions back into the narrative itself, amusingly starting to call Article 1 of API ‘the dreaded Article 1’ in his own text.

For scholars who have worked with the drafting papers of these treaties a lot, the value of this book is that it tells the story that we already know using completely new materials, in a narrative moulded from the concerns and priorities from a mix of different disciplines e.g. international relations, social psychology and international legal history. It brings to light chilling and elucidating backstage utilitarian calculations, hypocrisy, manipulation and racism by the Western group of States, who schemed to make sure that – wherever possible – what they gave with one hand, they took away with the other (a dynamic Mantilla calls ‘covert pushback’). For example, the book shows that the vague scope of application of common Article 3 was a deliberate attempt to provide States with a means to refuse its application. It also tells how the insertion of Article 96 in API was a unequivocal attempt to undo the ‘damage’ some States saw to have been done by Article 1.  Yet, the book also makes clear that the political process was too complex to identify good players and contrast them with bad players. Indeed, Mantilla shows how many of the Third World states who were pushing for national liberation movements to be treated as international actors with rights and obligations akin to States under API, were utterly allergic to any provisions implying that armed groups involved in (nonliberation) internal conflicts should have legal personality under APII. Equally, it shows how the few drafting States who were pushing for the text of APII to retain its full range of humanitarian provisions were seen by other States to be in effect threatening to sink the entire instrument. In other words, Mantilla shows that the final treaty texts are not a compromise that emerged out of a battle between two opposite forces (e.g. military necessity v humanitarian, sovereignty v communitarianism) but instead compromises that emerged out of a complex combination of eddying, unpredictable and sometimes contradictory forces relating to backstage politics, coalition building, normative wagering and social anxiety.

What was at stake?

Perhaps due to the book’s focus on procedure and politics, there are places in the book where one has the feeling that the analytical lens Mantilla employs is not wide enough to take account of the international legal universe in which international humanitarian law has its place. For example, one small critique is that the book little attention is given to the intertwined fates of international human rights law and international humanitarian law. As a result, when reading about the high drama that accompanied the drafting of the Additional Protocols and the heightened tension that arose from States’ anxieties about international norms infringing upon their sovereignty, a reader might be forgiven for concluding that IHL was the only legal framework that would apply in internal armed conflict. If Additional Protocol II not survived, there would have been legal vacuum except for CA3. Yet, of course, this isn’t true. The complementarity between international humanitarian law and international human rights law can be traced back to 1948-9, when ICRC delegates attended the drafting of the UDHR. Indeed, long before the famous Tehran Declaration of 1968, it was regularly recognized by the United Nations that human rights law applies to the kinds of situations that are under study in Mantilla’s book i.e. situations of internal unrest and internal conflicts (Fortin, 2012, van Dijk 2018). When this perspective is recalled, it becomes interesting to ask whether the application of human rights law to internal armed conflicts was in the drafters’ minds during the drafting of the Additional Protocols? Indeed, now that we have all this fascinating detail regarding what was in their minds regarding IHL, it would be interesting to know more about this aspect too.

It is also interesting to look back at these debates with the benefit of hindsight, which is a perspective that is not adopted by the book. Indeed, when we look back on this drafting history – in the knowledge of how the law on NIAC targeting has developed in subsequent years with increased acceptance of a membership criteria for armed groups –  it becomes interesting to consider how States might feel about some of the issues relating to the ‘threshold’ of IHL today. One has the impression that Mantilla sees IHL as being a purely restrictive framework for the parties to the armed conflict, but increasingly we see that just like Rubin’s vase – that famous image where the same lines can produce two faces and a vase at the same time – IHL can be both permissive and restrictive at the same time. As a result, its application often brings both advantages and disadvantages to States.  

A postscript re dreaded Article 1

Another detail in the story that we can add with hindsight is a small but significant postscript to Mantilla’s telling of the story of the ‘dreaded Article 1’ of API. Indeed, Mantilla ends the story of Article 1 of API with the rather gloomy prognosis that the insertion of Article 96 ensured that ‘API was unlikely to ever apply to such wars’. Yet, he does not note that in fact Article 96 was in fact used with success in 2015. Indeed, in June 2015 the Polisario Front made a unilateral declaration under Article 96(3) of API which was accepted by the Swiss Federal Council, acting in its role as the depository. While the Polisario Front was not the first national liberation movement to try and make use of this provision, it was the first national liberation movement to have its declaration accepted by the Swiss depository. As a result, it can be seen that the last-minute Article 96 insertion that so ‘pleased’ its actors did not completely stymie the application of API to liberation wars.

Avenues for future research and final reflections

In the conclusions, Mantilla reflects on several social and legal developments since the 1970s, some very recent, that may be relevant to future thinking on the issue of lawmaking and armed conflict. When reflecting on the role that social pressure and fear of social opprobrium played in the drafting processes in the 1970s (generally pushing the text towards a more humanitarian outcome), he questions – clearly with the Trump administration in mind –  whether social opprobrium would play a similar role in any drafting process today. He also mulls over the move towards ‘custom’ in international humanitarian law, a law-making process that evades the fraught political maneuvering and compromise required by treaty law.  While it is sometimes argued that custom is a less legitimate source of law to treaty law due to its unwritten character (d’Aspremont, 164, and for a recent discussion, Hakimi 2020), Mantilla expresses cautious optimism about the expansion of custom in this field pointing to the ‘prolonged, haphazard and fragile’ (my emphasis) outcomes of treaty rule codification for internal conflict. In making this conclusion on ‘fragility’, one catches a glimpse of a new research question that is clearly brewing at the back of Mantilla’s mind, that is articulated more fully later in his conclusions. The question is this: do socially pressured, prolonged and contentious treaty drafting processes such as those that produced the Additional Protocols create the same strength of norm – from a compliance perspective – as treaty norms that emerge out of a less fractious process? Most lawyers would be quick to say ‘no’, pointing out that the ‘bindingness’ of the resulting provisions is the same, no matter how fractious the process and arguing that those responsible for a treaty’s implementation would tend to be oblivious to the drama that went into its drafting, but it would be fascinating to see further research on this question.

At the end of the book, Mantilla identifies some of the book’s limitations with a view to identifying avenues for future research. Most importantly, he points out that the story the book tells is based mainly on archival material from the ICRC, France, Switzerland, UK and US. He rightly argues that there is a need for new histories of the same issue written on the basis of a review of archives located in the Global South. It is hoped that in these new histories, there might be more details also on the participation of the national liberation movements in the drafting of Additional Protocol I. Not only would it be interesting to learn more about their (perceived) contribution to the Diplomatic Conference, but their presence at the drafting conferences also raise interesting questions relevant to Mantilla’s theories regarding social pressure during drafting processes. For example, do the dynamics of ‘social pressure’ and ‘forum isolation’ rely on the actors in the room being members of the same ‘club’? What happens when actors outside the club enter such a process? Are outsiders also affected by social pressure and able to apply social pressure that is meaningful to States? These are intriguing questions that are presumably relevant not  only to the participation of armed non State actors in drafting processes but also any other non State actor, such as civil society organisations.

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