Lawmaking Under Pressure: International Humanitarian Law And Internal Armed Conflict by Giovanni Mantilla

Abstract

Reviewed by: Lawmaking Under Pressure: International Humanitarian Law And Internal Armed Conflict by Giovanni Mantilla David P. Forsythe (bio) Giovanni Mantilla, Lawmaking Under Pressure: International Humanitarian Law And Internal Armed Conflict (Cornell U. Press, 2020), ISBN 9781501752582, 247 pages. Giovanni Mantilla, Assistant Professor at the University of Cambridge, takes up an important question in his 2020 book by Cornell University Press: why would states agree to extend international law to internal wars, thus agreeing to limits on their policy making in matters previously seen as internal and arguably protected from outside concern by the notion of state sovereignty? His concise answer is that law making is a political process, and states in a diplomatic conference find themselves under pressure to conform to the dominant views of the times. Not wanting to be isolated within the conference, or seen as generally uncooperative, they may well accept what they do not really believe in. Thus, to take a good example, Britain and France reluctantly endorsed Common Article Three (CA3) of the 1949 Geneva Conventions, establishing for the first time in written international law a set of obligations on fighting parties in non-international armed conflict. True, the Spanish civil war of 1936–1939 had manifested many atrocities, and this [End Page 835] furthered the humane concern about internal wars.1 But the British and French were worried about sovereign control of their colonies going forward from 1949 and realized that new rules on internal violence, or what they considered to be internal violence, might be burdensome.2 Yet they finally voted for the four treaties, including CA3, as they emerged from the diplomatic conference. Hence from 1949 the international law of armed conflict, or international humanitarian law (IHL), or the modern law of war, mandated a set of core protections for individuals in the frequent but ill-defined situation of internal war. CA3 is an important supplement to international human rights law, as both are concerned with human dignity. Both sets of norms are put to a challenging test in a conceptual zone of violence falling between domestic troubles and tensions on the one hand, and full international war on the other. His longer answer as to why states would legally limit their policy choices requires inquiring how one got to the point in 1949 of even examining the question of humanitarian law applied to internal war in a diplomatic conference. This requires an historical approach, which Mantilla provides in well researched detail. His concerns finally take him from 1949 to 1977, when another Geneva diplomatic conference on the laws of war adopted Additional Protocol Two (APII) to the 1949 Geneva Conventions on the subject of internal war. Again he finds that forum pressures and the prospect of political isolation contributed to the adoption of APII, with the approval of some states who were not convinced that much practical benefit was to be found in that instrument. The ebb and flow of international concern for the victims of internal war, which gets us to 1949 and 1977, is well traced by the author. If we pick up the story in 1864 with the first Geneva Convention for victims of international war, and the start of the International Red Cross (IRC) at about the same time, we find that the concern about internal political violence was quick to appear.3 The International Committee of the Red Cross (ICRC), which had started the IRC and pushed for (and actually drafted) the 1864 convention, was reluctant to move very fast on the subject of internal violence. Across time the organization proved conservative, fearful of damaging what had already been legally achieved, but which was not immune from collapse, and also fearful of encouraging (especially leftist) agitation against the established European states that were its chief donors and supporters.4 The result was a pattern of deferring to National RC Societies and letting them provide aid to the insurgent side as well as the government side if they were so inclined.5 Things began to shift a little in 1912 when the American Red Cross, not the ICRC, proposed to the International RC [End Page 836] Conference of that year that RC members provide relief in...