Lieber Studies Making and Shaping LOAC Volume – Universality and Regionalism in Making and Shaping LOAC

Editors’ note: This post is based on the author’s chapter in Making and Shaping the Law of Armed Conflict (Sandesh Sivakumaran and Christian R. Burne eds. 2024), the tenth volume of the Lieber Studies Series published with Oxford University Press.

The Third World triumphed over the developed West at the Diplomatic Conference in Geneva of 1974-1977, by succeeding in their effort to expand the material scope of the notion “international armed conflict” (IAC). Article 1(4) of the First Additional Protocol to the Geneva Conventions of 1977 (AP I) reflects that victory by including “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination” (wars of national liberation). It is suggested that this triumph resulted in a pivot by the West, spearheaded by the later works of Dr. Jean Pictet (here and here), to assert the universal underpinnings of the law of armed conflict (LOAC) as a shield against unwanted external (i.e. non-Western) influence in the development of LOAC.

The chapter to which this post relates focuses on “the role of regionalism in the making and shaping of the law of armed conflict.” Whilst several themes emerge from that discussion, this post will home-in on the inclusion of “wars of national liberation” in Article 1(4) AP I and the Western response thereto. The purpose is not to replicate the core argument advanced in the chapter, but rather to provide better context for that argument, thus showcasing its significance.

Unsurprisingly, the LOAC community tends to analyse the expansion of IAC to include wars of national liberation during the Geneva Conferences from the perspective of what it means to LOAC internally. From that perspective, given that the decolonial project had almost completed by 1977, commentators are often ambivalent as to the material effect of this expansion (see here, here, and here).

Such ambivalence loses sight of two vital features of the expansion of IAC: 1) it is significant that the West lost its grip on the development of LOAC during that period; and 2) it does not take account of the significance of this triumph from a perspective external to the immediate concerns of LOAC, focusing on international law and decoloniality.

The Expansion of IAC between 1974 and 1977

During the roughly two-and-a-half decades between the adoption of the Geneva Conventions of 1949 and the Additional Protocols of 1977, the number of negotiating States exploded from 59 to 132. The most significant shift came as a direct consequence of the mass-decolonization of the African continent. Indeed, African States went from representing 3.4% of the negotiating States in 1949 to 30.3% in 1977. The combined effect was that the African Group, the Latin American and Caribbean Group, and the Asia and the Pacific Group accounted for 69.7% of negotiating States by 1977.

In a move to consolidate influence premised on numerical superiority, a large cohort of States broadly defined as Third World States founded the so-called Group of 77 (G77) on 15 June 1964. Meanwhile, during the late sixties and early seventies, Professor Georges Abi-Saab was commissioned to prepare two reports to the UN General Assembly, the first addressing respect for human rights in armed conflicts, and the second addressing conflicts caused by denial of self-determination (see here).

In the second report, Professor Abi-Saab proposed an expansion in the material scope of application of LOAC, to include wars of national liberation. When this suggestion was not taken up, Professor Abi-Saab published his highly influential article advancing this proposal. This led to the G77 appointing Professor Abi-Saab as their spokesperson during the first session of the Diplomatic Conference in Geneva during 1974. It was at this session that the groundwork was laid for what would become Article 1(4) of AP I (though the victory was ultimately confirmed in 1977).

The Significance of Triumph by the Developing World

As mentioned at the outset, whilst the scope for the potential material application of Article 1(4) of AP I post-1977 was very narrow, the significance of the development is to be gauged external to LOAC. At the time, colonialism and foreign domination were not seen by political leaders in the West as the evil we know them to be today.

Whilst the UN General Assembly had adopted several resolutions positioning decolonization within international law, even recognizing the continuation of colonial rule and apartheid as a crime against humanity (Resolution 2105 (1965)), the legality of colonialism had not been challenged by conventional international law pre-1977. Indeed, to this day international law has not yet fully contended with colonialism, as is illustrated by the saga of the Chagos archipelago (see here, here, and here).

Professor Jochen Von Bernstorff convincingly posits that the Third World pursued the inclusion of wars of national liberation in Article 1(4) of AP I to advance two claims, one historical and the other pro futuro. The historical claim being, “that European imperialism and the associated ‘civilizing mission’ were acts of ‘aggression’, the exercise of which since the interwar period were increasingly seen as a particularly grave violation of international law” (p. 53). The pro futuro claim suggested, “those engaged in a war of national liberation were potentially international legal subjects, empowered and also tamed by the rules of international humanitarian law” (p. 53). The significance of both claims for newly independent States transcended the formal application of LOAC.

Professor David Forsythe, writing contemporaneously with the conference in 1975, commented that a rift existed between the approaches of Western States and that of the Third World. He observed that whilst the former premised their arguments on legalism, the latter took a non-legal approach, addressing themselves to political concerns. These observations are reflective of how Professor Naz Modirzadeh conceptualizes the international humanitarian law (IHL) lawyer, as being “very fond of rules and rules-talk. For other international lawyers, IHL lawyers often seem remarkably positivist: They spend a great deal of time debating and discussing black-letter rules, their interpretation, their manifestation, and the consequences of their violation . . . .” (p. 235).

In reality, Third World States successfully implemented a negotiation and legal strategy designed primarily by Professor Abi-Saab in terms of which they pursed an agenda aimed at advancing their interests, which transcended development of LOAC in the narrow sense. It is only very recently, with the advent of “comparative international law” (see here), premised in large part on Professor David Kennedy’s observation that “international law is different in different places” (p. 17), that international law scholarship has begun to adequately take into account regional variance in the understanding and utilization of international law.

The momentum generated at Geneva carried through to the negotiation of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (CCW) between 1979 and 1980. Under the leadership of the United States, several Western States aimed to seize the opportunity to mitigate the damage done during the Geneva negotiations. They proposed that the scope of application of the CCW to wars of national liberation, as envisaged in Article 1(4) of AP I, be restricted such that it only applied once “the authority representing the people in question had accepted and applied the rules of warfare which already applied to States as a result of various international agreements.” This proposal failed after it was rejected by Third World States (see here).

The Response from the West

The significance of the Diplomatic Conference at the time cannot be overstated, and indeed is underestimated today. Up to that point, there had been no need to defend Western dominance in the development of LOAC, or to assert the universality of LOAC to any specific end. In fact, the “laws and customs of war” were unapologetically not universal in application.

For instance, between 1952 and 1960, British Colonial Forces supressed the Mau Mau Rebellion in Kenya officially resulting in 11,000 Kenyan deaths (though the true figure is estimated to be much higher, for coverage see here). This violence was altogether unrestrained by LOAC, including common Article 3, notwithstanding the United Kingdom’s accession to all four Geneva Conventions on 23 September 1957 (for discussion see here).

This all changed as a consequence of Article 1(4) of AP I and the more expansive regulation of non-international armed conflict in terms of the Second Additional Protocol to the Geneva Conventions of 1977. Clearly, conflicts previously fought in a legal vacuum, such as the Mau Mau Rebellion, would now be regulated. This created all the more reason for the West to reassert dominance in the development of LOAC. It is at this time the narrative of LOAC as a regime of super universality emerges, with Jean Pictet leading the way.

Dr. Pictet invoked human nature as the basis for LOAC,

“in an international environment, man’s rights can only be on what is universal, on ideas capable of bringing together men of all races. [. . .] Similarity alone can be the basis for universality and, although men are different, human nature is the same the world over” (p. 6).

To make clear that with “human nature” he included those readily referred to as uncivilized (i.e. those traditionally excluded from the protective shield of LOAC see here), remarkably he proceeded to illustrate the universality of LOAC by reference to “the study of savage tribes existing in our own time,” which he argued, “gives some insight into the nature of primitive man at the dawn of society” (p. 6). In Dr. Pictet’s example, Papuan custom in relation to conflict corresponds with principles of LOAC.

The influential International Committee of the Red Cross publication, How Does Law Protect in War? (Grignon, Sassòli, Bouvier, & Quintin) illustrates the entrenchment of Dr. Pictet’s narrative:

The existence of such customs, which can be found in cultures, regions and civilizations as diverse as Asia, Africa, pre-Columbian America and Europe, is of fundamental importance. This should always be kept in mind when studying the modern rules of IHL, for it demonstrates that although most of the modern rules are not universal by birth – they have until recently been drafted and adopted mainly by European powers – they are universal by nature, since the principles they codify can be found in most non-European systems of thought (my emphasis).

It is true that a lot of practice can be discerned throughout human history that resembles notions of modern LOAC, such as distinction and proportionality. However, the notion of super universality has become intrinsic to the dogma of LOAC. The message is that the norms and principles of LOAC are so universal that reasonably there can be no divergence from the orthodox understanding of the regime.

This flies in the face of the experience of the Diplomatic Conference of 1974-1977. Indeed, it can hardly be a coincidence that Dr. Pictet constructed this narrative at a time when the 1974-1977 Diplomatic Conference, the apex of regional contribution to conventional LOAC, was fresh in memory. It is more likely that this narrative was constructed as a counterbalance to regional particularism, rather than failing to take account of one of the major developments of the time.

“Hardcore IHL lawyers,” as per Professor Modirzadeh, balk at the mention of regionalism in the same sentence as LOAC. I am very much in agreement that divergence from LOAC in the sense of the development of separate or parallel systems for regional regulation of armed conflict, is highly undesirable. However, it has to be recognized that LOAC is not a law unto itself, it is a sub-regime of public international law. In that sense, in the development of LOAC there is a dialectic between internal considerations, the stuff of highly technical, positivistic and legalistic debate, and external considerations, as observed by Professor Forsythe in relation to the negotiation of Article 1(4) of AP I. Neither has primacy over the other.

Concluding Thoughts

In the chapter to which this post relates, as well as in previous work, I have commented on an apathy towards LOAC from parts of the developing world, particularly Africa. Such apathy challenges the legitimacy of LOAC and likely impacts adversely on compliance. The critique of the super universalist perspective of LOAC is not a critique of the goal of regulation of armed conflict through international law of universal application. Instead, it is a critique of the misuse of rhetorical universality as a guise to exclude diverse perspectives and input in the development of LOAC of universal application. In reality, more inclusive processes in the development of LOAC prospectively will have a modest impact on the actual normative development of the law, but are likely to have a more significant impact on shared ownership of the law.

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Gus Waschefort is an Associate Professor at Essex Law School and a dual qualified English and South African barrister, specialising in public international law.

Photo credit: U.S. Army Africa