Internal armed conflict has been the modal form of organized violence around the world for decades. Since rebellion directly challenges state sovereignty, governments commonly adopt stringent domestic security and judicial measures against insurgents. Unsurprisingly, states long eschewed international treaty rules for internal conflict; they deemed the intrusion of international law in this field plainly self-defeating, empowering and protecting rebels while limiting governments' security measures without reciprocal benefits.Footnote 1
Despite these serious objections, in 1949 states successfully negotiated and adopted the first-ever binding rule of international humanitarian law (IHL) governing internal armed conflict: Common Article 3 to the 1949 Geneva Conventions (GCs,) better known as Common Article 3 (CA3 hereafter.) CA3 binds participants in an “armed conflict not of an international character” to respect and guarantee the humane treatment of wounded, sick, detained, and noncombatants “without any adverse distinction,” and to uphold prohibitions on several gruesome acts committed during armed conflict, including violence to life, torture, hostage taking, and summary judgment. CA3 also legalizes the ability of the International Committee of the Red Cross (ICRC) to offer its services to the parties to internal conflict and encourages them to sign special agreements to expand their humanitarian commitments.Footnote 2
Revolutionary at its creation, CA3 was universally ratified without reservations and gradually became an essential element of the postwar normative order, urging humanitarian restraint and protection amid internal warfare, underlying contemporary international justice and humanitarian intervention doctrines and, as the Bush administration learned in 2006, constraining even the most powerful state in world.Footnote 3
The emergence of CA3 presents at least three important puzzles. First, why did states adopt it at all? CA3 brought binding international law into states' domestic realm, limiting their means to placate internal violence, potentially constraining how they “policed” their own rebellious societies and opening their security governance to broader international commentary. This was no easy or minor normative change. Second, the timing of CA3's adoption in 1949, with European colonialism under increasing challenge, growing fears of global communist contagion, and postwar democratic instability, and the role of two negotiation protagonists—Britain and France—require explanation. These European empires began negotiations as stalwart opponents, working to thwart the emerging rule, but halfway through shifted gears to become CA3's champions, even saving it from near death. Why?
The design of CA3 presents a third puzzle: CA3 omitted a precise definition of internal conflict, contained no formal conditions to regulate its application, and did not demand reciprocity from armed nonstate actors, binding states unilaterally. States long found these features essential to safeguard their sovereignty, and although they were on the table in 1949, they did not survive negotiations. What explains this failure?
Drawing on original multicountry archival research, I explain the origins of CA3 and develop a social mechanism of influence: forum isolation. CA3 was the product of social pressure resting on the central international political struggles of its time, sharpened by the procedural features of the 1949 Diplomatic Conference. I argue for the causal role of forum isolation in international codification. Under specified conditions, forum isolation may exert powerful social opprobrium pressures that compel outcast state delegates to shift their public positions and acquiesce to otherwise undesired agreements. Importantly, forum isolation elicits not a change in preferences but a socio-strategic reaction on the part of the “cornered” actors who devise covert ways to salvage their self-interest and save face. I call this strategic reaction covert pushback.
I focus on the 1949 Diplomatic Conference that revised the GCs for the protection of victims of war. Like many other multilateral negotiations convened to codify international norms into law after World War II, this conference constituted a political microcosm where demands for global normative change entwined with intense contests around the nature and direction of a legitimate postwar order. This remaking of world order, in turn, took place in a context of shifting international status hierarchies, both material and normative—in particular with the advent of the United States and the Soviet Union as new (competing) superpowers, the relative decline of the old European empires ensnared in reconstruction and rising anticolonialism, and the related push toward the globalization of sovereignty via self-determination. With regard to internal conflict, the normative demands of the post-World War II juncture (and the horrific shadow of the Spanish Civil War) left declining, status-anxious colonial powers Britain and France—former European gatekeepers of world order—vulnerable to charges of imperial conservatism and antihumanitarianism, notably from a shrewdly propagandizing Soviet Union.
Against this complex political background, certain features of the 1949 conference, especially the universal participation of states, decision making by majority vote, and its publicity coalesced to provide an institutional platform—a forum—that enabled a spontaneous, uncoordinated majority coalition of Nordic, Latin American, small European, and Soviet bloc states to put the few skeptics against a political wall, ultimately pressuring them to embrace CA3 although they initially disliked it and hoped to kill it. European empires' “about-face” became a turning point in the negotiations. Facing forum isolation, Britain and France adopted a damage-control strategy, laboring behind the scenes to craft compromise language that the majority could embrace but which was ambiguous in one key place: the definition of armed conflict to which the new rule would apply. Empires' deliberate insertion of ambiguity decisively shaped CA3's later trajectory.
This article contributes to a growing body of International Relations (IR) theory that foregrounds the force of social opprobrium in world politics. It enriches the legalization and norms-emergence literatures by specifying and empirically demonstrating the effect of opprobrium (via forum isolation) as an operative force at the legalization stage, and not merely when law already exists. It furthers burgeoning work on international hierarchies and status, bringing these concepts into the study of international law-making, historicizing their operation at a crucial moment in international politics, and demonstrating that social pressures can shape the conduct of powerful states, not just the weak or the vanquished. Finally, this article speaks to IR debates on the design and effects of international law, evincing the importance of closely studying the negotiation process for understanding the sources, dynamics, and impact of compromise language. A detailed analysis of the extensive primary evidence demonstrates the shortcomings of prominent alternative explanations.
The Puzzle of CA3
While no work of IR has previously focused on CA3 or any other part of the IHL of internal conflict, legal-historical and doctrinal writings commonly hail CA3 as a normative touchstone. However, such scholarship rarely goes beyond descriptions of the debates recorded in the official proceedings,Footnote 4 leaving open essential questions about the role and motives of its key negotiating protagonists or about the politics behind its protracted codification process and curious outcome.Footnote 5
The Road to CA3
The GCs revisions process leading to the 1949 Diplomatic Conference began in 1946. Clearly, it was the savage atrocity of World War II that instigated sweeping updates to IHL at this time. Yet, as historians have noted, the bloody Spanish Civil War (1936–1939) highlighted the specific need for binding legal measures for internal conflict.Footnote 6
The ICRC placed the extension of the GCs to internal conflict at the top of the revisions agenda, declaring silence on it simply “inconceivable.”Footnote 7 The devil was in the details. Sponsoring Red Cross/Red Crescent Societies and states demanded: (1) maximum legal-humanitarian coverage through an open-ended definition of internal conflict (“armed conflict within state borders”); (2) the article-by-article application of the GCs to internal conflict, rather than general humanitarian principles; and (3) low or no conditions governing the GCs' application in internal conflict.
Skeptics, by contrast, wanted: (1) restrictive coverage (e.g., only “civil wars” or high-intensity conflict); (2) making states' obligations conditional on reciprocity from rebels; (3) guaranteeing only the observance of the Conventions' humanitarian principles in internal conflicts, not an article-by-article application. The draft texts produced in the meetings of National Red Cross Societies in 1946Footnote 8 and by governmental delegates in 1947Footnote 9 embodied these two design choices, which one might label legal-humanitarian versus “sovereigntist.” Disagreement about specifics aside, governments knew the idea had wings. Already in 1947 US officials had reported an apparent “unanimity of opinion” about it.Footnote 10 French delegates had also alerted Paris to “the prevalent trend … to extend the scope of [the Conventions'] application as far as possible.”Footnote 11
Key governments attributed this impetus to recent historical trauma, galvanized by the ICRC. British internal reports, for instance, mused that the proposal “probably … springs … from the experiences of the IRCC [sic] in the Spanish Civil War reinforced by the treatment of the Resistance Forces in the European countries occupied by the Germans.”Footnote 12 Elsewhere, British officials noted that in addition to the Spanish conflict, contemporaneous internal violence in China, Indonesia, and Palestine also created strong pressure to make the Conventions applicable to civil wars.Footnote 13
Recall that in 1945 Britain held the largest colonial empire, with around 60 million subjects. France came in second, with around 4,500,000.Footnote 14 Shortly after the war, however, European empires began facing growing political and violent pressures to decolonize. Armed unrest pushing for self-determination steadily broke out after 1946 across Southeast Asia, Africa, and the Middle East, straining the increasingly fragile hold of war-weary European masters over their colonies. Given imperial reluctance to embrace self-determination demands swiftly or without a fight, the anticolonial movement gained further strength internationally, relying not only on violence but also on international organizations and conferences as rhetorical platforms to condemn European colonizers. It was this combination of political, violent, and diplomatic means that eventually delegitimized the institution of empire.Footnote 15
Unsurprisingly, Britain and France became prominent detractors of extending the GCs to internal conflict. “Would it not be useful to define the notion of civil war before introducing it into the Convention?” asked the French in 1946.Footnote 16 “The term civil war is very vague.”Footnote 17 “When does a civil war begin? Is it from the moment some hundreds of civilians take up arms, or is it a situation similar to what occurred in Spain until recently?” queried the British in 1947.Footnote 18 It was not only an imprecise definition of internal conflict that worried these states but the risk of legitimating rebels. The French noted “Obligations stipulated here on a humanitarian plain should not imply juridical consequences regarding the legal status of this or that authority which fancies itself as government but is not recognized by others.”Footnote 19
The British were especially alarmed by the generous formula conceived at preparatory meetings. An imprecise, unconditioned definition of internal conflict threatened to afford legal protection to rebels in “undesirable” cases, including their colonies. The US also showed concern over legal design, but for different reasons. In public and private, the American delegation wished to include strict and explicit conditions of application to ensure that the rule could not be triggered automatically or unilaterally on states.
The last event of the travaux préparatoires, the 1948 (seventeenth) International Conference of the Red Cross held in Stockholm, further revealed an atmosphere disadvantageous to the “sovereigntist” mindset. In 1948 the ICRC presented delegates with a draft article that eliminated the condition of reciprocity, and expanded the definition of internal conflicts to read: “armed conflicts not of an international character, especially cases of civil war, colonial conflicts, or wars of religion.”Footnote 20 Most delegates not only embraced this but also agreed that the full GCs (not just their principles) should apply in internal conflict.Footnote 21 And though skeptics reignited the debate on reciprocity, it was the ICRC's contrarian argument that reciprocity was more likely to give states, not rebels, an easy escape that resonated. Reciprocity was kept alive only in the draft Prisoners of War (POW) Convention, where it carried the special risk of foreign intervention.Footnote 22
The British remained most recalcitrant before the 1949 Diplomatic Conference. Although the officials studying the revision of the GCs struggled and failed to forge a consensus approach to the question of internal conflict,Footnote 23 the British Cabinet set delegates' instructions in a harshly conservative tone. To Cabinet members, the proposed rule could be “capable of misrepresentation by subversive interests, and in colonial territories in particular might successfully be used as a propaganda document to instruct the native that he owed no allegiance towards lawfully constituted authority.”Footnote 24 Given this grave risk, British delegates in Geneva should work to either defang the legal rule by explicitly enshrining government control over its application or else “resist it to the ‘the bitter end’” for the Civilians Convention, to avoid affording protections to civilian populations supportive of rebellion.Footnote 25
Surprisingly, these Cabinet concerns from March 1949 differed almost completely from CA3 as finally adopted. Although British and French diplomats did initially seek to eliminate or condition the rule on internal conflicts, over the course of two short months, they became CA3's drafting leaders and saved it when it nearly failed.
The Argument: Forum Isolation and Covert Pushback
Britain and France's “about-face” regarding CA3 halfway through the 1949 conference was the result of opprobrium-producing forum isolation—a situation in which government delegates participating in an international negotiation find themselves occupying an utter minority position, whether outside of a majority view or a perceived consensus. Under certain conditions, to stand alone (or nearly alone but in “questionable” company,) may lead isolated delegates to reason that serious social-status damage may befall the state they represent because of perceived opprobrium. Concern for status prompts delegates to press their superiors to authorize altering their public position. But isolated delegates may display public acquiescence simply to save face, neutralize social pressure, and salvage their self-interest. They accomplish this by inserting vague language in the negotiated text, among other strategies.
This argument builds on existing IR work on social opprobrium. Opprobrium, or shame, is a social emotion.Footnote 26 It operates in the relationship between individual and collective selves,Footnote 27 both within and between identity groups, via the public exposure of objectionable or inappropriate speech or behavior, castigating the actors that espouse them and thus maintaining social order.Footnote 28
Opprobrium dynamics permeate international society. Human rights nongovernmental organizations famously deploy shame to press states toward compliance with prior international commitments.Footnote 29 Generally, the norms and laws of international society serve as tools to distinguish “good” from “inappropriate” international action, chastising the latter. Opprobrium is commonly theorized as a means to uphold social norms within particular communities.Footnote 30 Social Identity Theory (SIT) famously rests on the distinction between in-groups and out-groups. In IR theory, opprobrium is seen to pull members of the same society toward conformance and compliance. Out-group opprobrium should be ineffective.Footnote 31
However, this view underestimates opprobrium dynamics between groups. Talk of an “international community” notwithstanding, the society of states is heterogeneous and hierarchical, inhabited by diverse actors (differentiated by identity, ideology, social standing, and material power) forced to live together and create international order jointly. World order-making is obviously no simple in-group affair: groups of states jockey for social influence and material advantage as they work out shared rules, not as a single, compact, and self-regarding community but as a plural (and often competitive) society of state groupings. Amid rule creation, opprobrium can become a powerful tool through which some states seek to gain higher ground over others, censuring each other not for failing to live up to some shared, pre-existing standard but for endorsing views inconsistent with their professed identity. Put otherwise, in world politics opprobrium can be mobilized to elicit normative compliance and to delegitimate and debase Others, threatening their social standing.
Essential to my argument is the understanding that opprobrium is a microfoundation susceptible of deployment through diverse mechanisms of varied nature and intensity. Classic IR scholarship highlights “naming and shaming” through boycotts, advocacy campaigns, demonstrations, or fact finding and reporting.Footnote 32 More recently, authors such as Iain Johnston and Frank Schimmelfennig theorize opprobrium-based mechanisms (“social influence” and “rhetorical entrapment”) to understand global and regional negotiations,Footnote 33 while Adler-Nissen, Zarakol, Towns, and Kelley demonstrate the operation of “stigma,” “ranking,” and “benchmarking” pressures in foreign policy, diplomacy, and global norm diffusion.Footnote 34
Forum isolation belongs to this family of opprobrium-based mechanisms but remains distinct. In IR, naming and shaming is theorized as the act of exposing, through public denunciation (campaigns, reporting, speeches) some Other's words, goals, or deeds as inconsistent with a prior commitment.Footnote 35 “Rhetorical entrapment” represents a variation on this theme: it showcases opprobrium mobilization in the act of revealing an actor's inconsistency with regard to her prior support for a “standard of legitimacy.”Footnote 36
Stigmatization is more demanding and permanent. According to Adler-Nissen, it involves “the co-occurrence of … labeling, stereotyping, separation, and status loss and discrimination”Footnote 37 and requires that the stigmatized accepts “the moral authority of the stigmatizer” and her claims.Footnote 38 “Social influence” (in Johnston's formulation) is an umbrella concept encompassing various opprobrium-based processesFootnote 39 which, following SIT, essentially work to enhance in-group conformance. Crucially, the in-group acts as the real magnet of social influence. As Johnston asserts, “only groups whose approval an actor values will have … influence.”Footnote 40
Forum isolation works differently. It can certainly and often does involve shaming via verbal reproach or ridicule. However, the act of universal (or nearly universally) “cornering” or outcasting within the confines of a public conference makes forum isolation an especially stifling form of opprobrium deployment, irreducible to the use of shaming rhetoric. As I demonstrate, the threat of an isolating, publicly recorded vote may appear as particularly grave and objectionable to diplomats, albeit under certain conditions. Importantly, unlike naming and shaming and rhetorical entrapment, forum isolation need not rely on an explicit prior commitment or support for a standard of legitimacy. Instead, it engages actors' identities directly, tapping into a revealed inconsistency between actors' identities and deeds, and connecting that inconsistency to broader international status struggles.
Forum isolation is also not as strong as stigmatization. It is indeed outcasting, but it requires neither the sustained or permanent harshness implicit to the acts of labeling, stereotyping, and discrimination nor the target's acceptance of the stigmatizer's “moral authority.” Overall, forum isolation is a more fluid, less-enduring type of social pressure than stigmatization, enabled by the on-site dynamics of the public negotiation setting; it is a social “forum effect” of public multilateral diplomacy.Footnote 41
Most distinctively, forum isolation goes beyond in-group opprobrium to theorize a key role for out-group pressure. In short, diplomats do not seem to simply dismiss out-group opprobrium when the out-group and the in-group coalesce to form a (near) universal majority or consensus view. And under certain political conditions states may perceive out-group opprobrium as internationally consequential for their social standing.Footnote 42
These claims find support in a growing line of social-psychological research.Footnote 43 Laboratory studies of individuals' responses to social ostracism, for instance, conclude that “regardless of whether [it] is done by in-group members or out-group members … or even by despised others,” it generates “lower moods” and “threatened needs.”Footnote 44 The social-psychological literature analyzing conformity in the context of majority/minority group relations agrees with the distinct social impact of a perceived consensus or majority.Footnote 45 Approaches within this literature diverge on certain aspects, especially how to characterize the level of cognitive processing (simple or elaborate) and type of outcome (sincere or superficial) of majority influence attempts, yet they share a key baseline: particular effects inhere in majority/minority group relations. An additional line of work (self-categorization theory) brings back SIT in- and out-group dynamics into studies of majority/minority group dynamics, arguing that “it is the perceived social and self-categorical relationship between the source and the target, rather than fixed, reified qualities of majorities or minorities, that determines the course of the influence process.”Footnote 46
Four insights from the majority/minority literature in social psychology are relevant here. First, majority pressure combines both normative and informational qualities—it conveys a sense of appropriateness and “objective” correctness, though their respective dominance varies according to social actors' prior relationship and the minority's position on a given issue. Second, majority pressure generates comparison-based reactions where public and private stances may diverge. “Because agreement is derived from a need for consensus and not from a change in understanding of the issue, it is most likely to be manifest at a public level.”Footnote 47 Third, the content of the majority position, especially how much it engages the minority's identity and contradicts its self-interest, will varyingly influence the level of cognitive processing (the “elaborateness” of the reaction) of the minority; the more it contradicts self-interest, the less the minority will simply accept it. Similarly, when “in-group” peers (which form part of a majority) adopt an unexpected attitude, those in the minority are expected to experience stress and try to resolve the conflict of views and reduce the dissonance.Footnote 48 Fourth and most simply, once they emerge, the majority and minority can themselves become the new “in-group” and “out-group,” inciting pressures to conform. Despite lingering debates among social psychologists, these findings provide external support for my argument about forum isolation as a social mechanism in diplomatic negotiations.
A Political Condition: Status Struggle
I defined forum isolation as the act of standing in (near-)absolute minority amid public negotiations—to find oneself in a proverbial diplomatic corner. But standing outside a majority or a consensus is not invariably a bad thing; indeed, some states wear it as a badge of honor.Footnote 49 But given certain political and institutional conditions, multilateral negotiation processes—public, outcome-oriented arenas enabling focused political pressure—serve as ideal platforms to sharply deploy opprobrium and elicit the acquiescence of skeptical actors who, by sticking to a fringe stance, risk the label of being obstructionist as well as disdainful and deviant in the face of overwhelming universal agreement, with the negative status consequences this may bring.
Opprobrium's analytical connection to status is crucial. Status has been defined as “standing or rank in a hierarchy”Footnote 50 that informs “patterns of deference and expectations of behavior, rights and responsibilities.”Footnote 51 Thus, status carries political meaning: states care about where they stand in a global hierarchy relative to others; it is inherently comparative and potentially competitive.Footnote 52 Given this, states that perceive themselves to be underplaced in a hierarchy, as well as those who face a shake-up of the hierarchical order that threatens their standing, may engage in status struggle with others, whether to maintain or upgrade their current position, or to degrade or dislodge others.Footnote 53
Two clarifications are in order. First, hierarchies are both material and normative (and these may but need not move in lock-step). I highlight normative hierarchy (and status anxieties around it) because the political showdown that underpinned this and many other cases of postwar international rule making were primarily social or ideational, involving practices of norm setting, legitimation, and public position taking with (rival) notions of “civilization” at their core.Footnote 54 Second, I focus on diplomats because they are key protagonists of states' status politics in international interactions—through their performance they try to preserve or improve their state's standing on the global stage, including in multilateral negotiations.Footnote 55 This means that diplomatic negotiations are sites of political “face-work” and status struggle as much as they are forums for policy coordination or collaboration.Footnote 56
In short, when sharpened through isolating dynamics of majority or perceived consensus in public negotiations, opprobrium exerts special political and social-psychological pressure on diplomats because it hinges on clear negative comparisons with concrete, competing Others, clearly singling some out as universal outcasts, and threatening to harm their state's perceived social rank in the international normative hierarchy.
Historians agree that the post-World War II and early Cold War moment brought about intense political struggle internationally.Footnote 57 The world war radically upset preexisting hierarchies, material and normative. The US emerged as the Western superpower, European empires saw their Great Power status threatened, the Soviet Union demanded superpower recognition and treatment, and European colonies in Africa and Asia were quickly swept over by self-determination and anticolonialism. Normatively, America's superpower status was accompanied by an initially confident self-perception as the “leader of the free world,” yet the European empires and the Soviet Union faced deep status anxiety as they fought to position themselves internationally in ways consistent with both their self-identityFootnote 58 and strategic aspirations.Footnote 59 France and Britain were caught in a special bind: though they were war victors, both had been materially weakened (especially France), were overshadowed by the US–Soviet superpower rivalry, and most importantly, their imperialism clashed with an increasingly strong postwar movement toward human rights, humanitarianism, and independent rule that emerged as global measuring sticks of “civilized” public discourse, even if actual behavior lagged. Overall, postwar normative politics challenged BritainFootnote 60 and France's deeply held status, self-identity, and interests as liberal-democratic, imperial Great Powers. Previously they were the stewards of international order—now they risked becoming retrograde, declining middle powers.Footnote 61
British and French status anxieties at the time and for decades to come are well documented. Ernest Bevin, the British foreign secretary, opined that “His Majesty's Government do not accept the view … that we have ceased to be a Great Power, or the contention that we have to play that role … The very fact that we have fought so hard for liberty, and paid such a price, warrants our retaining this position; and indeed it places a duty upon us to continue to retain it.”Footnote 62 De Gaulle harbored deep concerns with preserving French prestige after the war. He cited “the ‘two-thousand years' pact between the grandeur of France and the liberty of the world’” to persuade war victors to accord his country a seat at the Great Power table.Footnote 63 And despite its clear postwar material weakness, “De Gaulle and his foreign minister attempted to ‘sell’ the idea that France's unique vocation and role in the world rest on its glorious past, and that the world needed the leadership of France no less than France wished to continue leading it.”Footnote 64
In the unstable postwar period, growing East/West conflict was a positional “battle for influence.”Footnote 65 Jervis classifies the Cold War as an identity competition, since “what was at stake was nothing less than each side's view of the rightness of the cause, the universalism of its values, and the answer to the question of whose side history was on.”Footnote 66 About the Soviet Union, Ringmar notes that “instead of being secure in the great power status granted his country, Stalin became the leader of an insecure superpower wanna-be. Sensitive to the slightest humiliation, Stalin sought to avoid any occasion that would emphasize the relative inferiority of his country and the supremacy of the capitalist enemy.”Footnote 67
Status struggle also pervaded British–Soviet relations. Deighton explains that “leading British decision-makers assessed early on that they would have to base postwar foreign policy both on the threat from Communist ideology and on the consequences of the arrival of the Soviet Union as the new Great Power on the world stage.”Footnote 68 Prominent figures believed that the Soviets had chosen the UK “for a political and diplomatic onslaught” from which it must defend itself in all manners.Footnote 69 Therefore, “the defining trait of [British postwar] foreign policy was to maintain Britain's place as a major global and imperial power in a rapidly changing period of fresh ideological and power-political challenges … The quest to sustain the image and the reality of great powerdom through leadership, influence, and ‘punching above our weight’ was part of the mentalité of British planners, the military, and the politicians.”Footnote 70 In short, after 1946 a Cold War mindset dominated Whitehall that identified Soviet communism as the crucial external menace of the British Commonwealth and the democratic West. It was a “war of ideas, of loyalty to beliefs, and of all political mischief short of war.”Footnote 71
Decolonization contributed to the Cold War contest. Although American administrations initially showed distaste for continued European imperialism,Footnote 72 Cold War containment altered such thinking. Deighton indicates that “by the turn of the decade both the British and the Americans had come to see Britain's imperial possessions as having strategic utility for a global balance that was favorable to the West.”Footnote 73 And even before the decolonized world gained sufficient strength of its own (after 1955), the USSR used anticolonial rhetoric to pillory European powers and with them the broader liberal democratic West in an international propaganda war for “hearts and minds.”Footnote 74 By late 1947, key USSR officials had explicitly outlined a strongly anti-Western foreign policy strategy that “divided the world into two camps: the non-democratic imperialists led by the US, and the democratic anti-imperialists, led by the Soviet Union.”Footnote 75
International forums and diplomatic conferences thus quickly became a key battleground of Cold War/decolonization politics.Footnote 76 In 1962, Harold Jacobson asserted that “the USSR and the Soviet Bloc have been the most outspoken critics of colonialism in the United Nations … [they] have granted the colonial powers no quarter.”Footnote 77
Postwar status struggle thus deeply pervaded the normative reconstruction of world order.Footnote 78 And though the immediate postwar and early Cold War juncture seems particularly charged, status struggle is obviously not exclusive to it. East/West and Third World social competition continued well into the 1970s, and as both post-Cold War Russian readjustmentFootnote 79 and the challenges of “rising powers” demonstrate, status politics thrive in the twenty-first century.Footnote 80
Institutional Conditions
A configuration of three institutional conditions enhances the possibility that forum isolation will occur and induce opprobrium during international negotiations: (1) the universal participation of states (featuring a one-state-one-vote rule), (2) decision making by majority vote (or consensus procedures in the shadow of majority vote), and (3) publicity. These three conditions,Footnote 81 all identifiable a priori, work both as enablers and “sharpeners” of social pressure when a contingent phenomenon occurs: the formation of majority (or supermajority) coalitions during negotiations.
Forums embodying the principle and procedures of sovereign equality—universal participation and a one-state-one-vote system—are especially hospitable for the opprobrium-via-forum isolation dynamic for three main reasons. First, as universal forums, they and the decisions they produce enjoy greater legitimacy internationally relative to “club” membership institutions with weighted voting, which preserve power disparities.Footnote 82 Second and related, in enabling the equal participation of all or most existing states in decision making, they allow for a numerical advantage that checks material power asymmetries and opens doors to conflictual dynamics in a heterogeneous international society. Third, because universal-membership forums are seen as especially legitimate and authoritative, they limit recalcitrant states' “outside options” by raising the social (and material) costs of exit.Footnote 83
The threat or use of a public (roll-call) vote can be especially forceful because it clearly demarcates supporters from opponents. Yet the universality of the forum adds special pressure: to vote in a minority (or alone) against the rest of the world involves the special risk of universal outcasting, even more so if it threatens to unequivocally expose the gap between an agent's deeds and her “sense of self” or identity.Footnote 84
Finally, for shameful forum isolation to operate, actors must anticipate or experience the negative reaction of a given valued audience or public. My argument hinges on felt or expected embarrassment from both internal (inside negotiations) and external audiences. External audiences include various sites of public opinion, whether domestic, foreign, or international. Given diplomats' expectation that holding a minority position will draw the public spotlight on them as uniquely retrograde or deviant—provoking national and international embarrassment—they are more likely to feel the social heat and pressure their superiors for change in instructions.
Despite the objective flavor of these institutional conditions, the real test for shameful forum isolation is ultimately subjective: diplomats must perceive the gaze of public opinion (domestic and/or international) upon their minority position in negotiations to be sufficiently salient politically (i.e., shameful,) and hence consequential to their country's international standing.
Caveats
Obviously, not all states are equally vulnerable to opprobrium on all issues at all times, and not all that are isolated in negotiations cave to social pressure. A blanket assertion that “forum isolation = opprobrium = acquiescence” is unpersuasive, and IR scholars have only recently begun to explore varying state responses to opprobrium-based mechanisms and their scope conditions.Footnote 85 Because I build theory on the basis of an intrinsically important case (CA3) it is beyond my scope to formulate and test a general framework. Yet recognizing that there are prominent historical cases in which forum isolation has not produced acquiescence in universal diplomatic negotiations—many of them featuring the US—I advance provisional claims regarding the conditions that prevent the operation of forum isolation as stipulated.
First, a state's domestic politics may “short-circuit” the effect of forum isolation in international conferences when public opinion or parliamentary opposition mobilize (or are seriously expected to mobilize) against the agreement being negotiated.Footnote 86 In such situations, even if isolated diplomats in Geneva or New York experience embarrassment and pressures to acquiesce to an overwhelming majority, they may be impaired from doing so because of an imminent domestic political scandal, or simply an expected public backlash against their diplomatic maneuvering. For example, US delegates at the Rome Statute negotiations in 1998 found themselves shamefully isolated at the end of the process, yet despite their felt opprobrium and insistent pleas to their superiors in Washington, the anticipation of congressional opposition neutralized acquiescence in Geneva.Footnote 87
Second, it matters which states are isolated and whether they cherish their legitimacy or standing in international society.Footnote 88 If the isolated state commonly adopts a renegade attitude against international norms (i.e., it boasts about its outsider status), then forum isolation is unlikely to produce opprobrium. Similarly, if the isolated state fashions itself a “persistent objector,”Footnote 89 then opprobrium-via-forum isolation is unlikely to bear effect. Finally, if a potentially isolated state can enlist the support of allies, the forum isolation effect is per force neutralized. In general, just like diplomats manage stigma, they find ways to handle isolating opprobrium.Footnote 90
Although regime type or domestic identity generally seem to matter as determinants of states' higher or lower social vulnerability and susceptibility to opprobrium, I cannot untangle their precise effect here since the case of CA3 features social pressures upon only liberal-democratic Western states. However, since we know empirically that nondemocratic/illiberal states can also face social vulnerabilityFootnote 91 and “audience costs,”Footnote 92 future research must theorize opprobrium dynamics bearing not only on liberal democracies but on or among authoritarian states.Footnote 93
Covert Pushback
How deep does isolating opprobrium really cut? There is probably a response spectrum, as the social-psychological literature suggests, conditional on how gravely the target actor's self-interest is compromised and how directly the issue engages her identity. Based on the CA3 case—probably located toward the high end of this gravity/directness spectrum—I maintain that isolated actors will tend to react to opprobrium pressure strategically, with the goals of saving face, preventing status damage, and salvaging their self-interest via subterfuge methods. In the CA3 case, British and French socio-strategic maneuvering involved their appearing to associate themselves with an emerging norm by becoming drafting leaders, while deliberately undermining it behind the scenes through ambiguous language. I name this reaction covert pushback.
The theoretical take-away of my two-step model for the (commonly rationalist) literature on institutional design,Footnote 94 which usually omits legitimacy and opprobrium as crucial factors, is clear. First, diplomats do (at least sometimes) accord legitimacy and opprobrium importance during treaty negotiation and design. Second, isolating opprobrium can deeply shape the design and outcome of crucial rule-making processes, even if opprobrium does not transmogrify self-interest into unthinking conformity, with potential attendant consequences upon rule performance.
Negotiating CA3
Officially convened by the Swiss government, the Diplomatic Conference that revised the Geneva Conventions opened on 21 April 1949 and lasted four months. Delegations from nearly every state in the world attended—a total of sixty-four, five as observers without a vote. Although several nongovernmental organizations sent representatives and written suggestions, the ICRC remained the central nongovernmental protagonist. The local press in Geneva and elsewhere in Switzerland actively followed negotiations. The international press covered them occasionally.
The conference agreed on a one-state-one-vote procedure, with decisions in committee and plenary made by simple majority via public show of hands and recorded roll-call vote upon request. To its conduct proceedings, the conference created four substantive committees: three devoted to the main texts of the GCs and a fourth “joint” committee focusing on the articles shared across Conventions (the so-called Common Articles) including CA3. All governments entitled to a vote sat on the joint committee.
A mere two weeks before the conference started, the political environment was shaken by the surprise announcement of Soviet attendance alongside seven satellites. Previously absent from deliberations because of historical rifts with the ICRC, Soviet bloc presence threatened to politicize negotiations. The debates on CA3 began almost immediately. The ICRC, whose representative had the first word, introduced the two versions of the rule that had emerged from 1948 (the “Stockholm” text). One included reciprocity (for the POW Convention), the other omitted it (in the Wounded and Sick Conventions). “The two texts should be brought into conformity,” urged the ICRC.Footnote 95
The first to react were the French and British delegations, voicing strong opposition to the internal-conflict rule. The French delegate remarked that “it was impossible to carry the protection of individuals to the point of sacrificing the rights of States,”Footnote 96 meaning that only organized military forces with a responsible authority capable of enforcing and respecting the GCs in a given territory should become eligible for protections. The British delegate went further, declaring that the Geneva Conventions could apply only to wars between sovereign states, and that to do otherwise “would appear to give the status of belligerents to insurgents, whose right to wage war could not be recognized.”Footnote 97 This was a thinly veiled admission of the British instruction to kill the proposal. Like France, the US, Canadian, Australian, Italian, Greek, Chinese, Spanish, and Burmese delegations, without rejecting the idea, proposed inserting strict formal conditions (de facto and de jure reciprocity, states' right to determine that the conflict had fulfilled “objective” conditions, or states' recognition of rebel belligerence) to prevent rule expansiveness, guarantee reciprocity, and avoid rebels' legal legitimation.
This attitude immediately provoked stark resistance. In varying degrees, the delegations from Mexico, Norway, Monaco, Hungary, Denmark, and Romania voiced their discontent. The Mexican delegate implored the conference not to be “deaf to the voice of those who are suffering,” noting that “in civil wars there might also be movements for emancipation of a morally creditable character.”Footnote 98 Norway characterized the humanization of internal conflict as “a step forward” in international law.Footnote 99 Hungary and Romania reminded others that the point of the conference was precisely to extend humanitarian protections as widely as possible.Footnote 100
Remarkably, the most forceful rebuttal came from the Soviets. The USSR representative took the British, French, Greek, and American delegations to task, observing that their proposals to insert various conditions severely undermined the GCs' humanitarianism.Footnote 101 He had especially pointed words for the European empires, stressing that “the suffering of the population in the instance of civil and colonial wars was as distressing as that which led Henry Dunant to realize the need for regulating the laws of warfare.”Footnote 102 The Soviet delegate chastised French insistence on conditional reciprocity, arguing that, “if [it] were followed, there would be a danger of one party declaring, without proof, that the other party was not in a position to ensure order, and thus of justifying any violation of the basic humanitarian principles of the Conventions.”Footnote 103
Given such deep disagreement, the Swiss representative suggested forming a subcommittee to work out a compromise formula. The so-called Special Committee would be formed by Australia, the US, France, Greece, Italy, Monaco, Norway, the UK, Switzerland, the USSR, Uruguay, and Burma.Footnote 104
The conference's reaction immediately set off alarms within the French and British delegations. French memoranda noted the polarization between Soviets and Brits, and reflected their own concern with the generous Stockholm text.Footnote 105 British correspondence meanwhile revealed extreme anxiety. A day after these discussions took place, three members of the UK delegation cabled London. One wrote:
As … anticipated the Delegation has run into very heavy weather already on the subject of civil war … The whole of the fire … [is] on our attitude to civilians and the Soviet Union is allying itself very strongly with the humanitarian school in pressing for the widest possible application of the Conventions to civil and colonial wars. Those who have ventured to suggest that the application to civil war should be restricted are being labeled legalistic … [we are] now convinced that if we maintain our attitude we shall probably find ourselves in a minority of one.Footnote 106
British delegates fretted nervously over the negative impression their conservative position was creating in the eyes of domestic and foreign public opinion and their evident isolation among the large majority of delegations. In private exchanges, they worried over a recent article in The Times encouraging “every civilized Government” to embrace the rule on internal conflicts,Footnote 107 as well as about the pointed attention British skepticism was receiving in the local press in Geneva.Footnote 108
Inside the negotiating room, British delegates were alert to the fact that most delegations, including the Swiss hosts, had “picked out this as one of the necessary extensions to the Convention which recent hostile events had demonstrated as essential.”Footnote 109 They worried that “nearly every nation of any importance (including those who are in, or have recently experienced civil war), have gone to the rostrum to adhere to this principle, the United Kingdom being the solitary voice raised in favour of not applying the Conventions to civil war.”Footnote 110
Another UK delegate wrote home reinforcing this sentiment. “I think if we persist in our present attitude, we should be in a minority of one … Already we are getting the reputation of being legalists out to restrict the protection which the Convention proposes. There have been some very critical articles in the Swiss papers. One of them even goes as far as to suggest, in effect, that the disintegration of the British Empire is proceeding at so fast a pace that we are determined to keep every possible power we can in order to preserve some of the empire.” In sum, “the international background here is against us. Our authority and influence as reasonable people will be seriously undermined if we acquire a reputation for intransigence on an issue in which the overwhelming body of opinion is against us.”Footnote 111
British delegates were thus notably shaken by the bad publicity, experiencing forum isolation from “nearly every nation of any importance,” including close Western friends, and were obviously sensitive to Soviet rhetorical lashing. While other states had suggested limits on the internal conflicts proposal, none publicly wanted it dead. Further exchanges with colleagues in London clarified these concerns. Another delegation telegram noted: “There is no doubt we shall be alone in adopting a purely negative attitude.”Footnote 112 “The political situation is that … the United Kingdom Delegation is being described in the Conference as ‘obstructive’ by the followers of the USSR line, and ‘restrictive’ by, for example, the Australians.”Footnote 113
London-based officials shared this assessment: “Now, surely there is something very surprising if you find the UK taking up a negative attitude to this proposal when it is supported by lots of other countries which have recently experienced civil wars and are likely to do so frequently … Is not there probably some modicum of truth in what [our head delegate] describes as the ‘reaction of the conference to our attitude’ that the UK is influenced by conservative legalism and is indifferent to, and indeed opposing, the efforts of others to effect amendments and extensions to international law?”Footnote 114
British officials at home thus clearly understood the pernicious status consequences of their isolating intransigence in Geneva: “Other countries will oppose us for the sake of opposition or of showing us up in a bad light in the eyes of all the humanitarians; the Commonwealth delegates have been told to take a less restrictive stance than ours and the Americans, I gather, are sitting on the fence. I think it is important to consider the use the Communist and ‘fellow-traveler’ press will make of our legalistic attitude.”Footnote 115 He concluded: “If we stick to our guns, we shall not change the views held by the vast majority of other delegations and we shall earn more unpopularity than if we had refused the invitation of the Swiss to attend the Conference.”Footnote 116
What to do, then? Cleverly, the British head delegate reasoned that the Cabinet's original concerns regarding internal conflicts “can be overcome. We all feel that it will be necessary to abandon any formula specifically leaving the decision in this matter to the Sovereign Power, and to seek rather some formula which, while not dotting the I's, would in fact leave the last word to the Sovereign Power.”Footnote 117 This entailed decoupling the application of humanitarian law in internal conflict from the recognition of belligerency, and restricting the proposal's contents to a “tailored” article featuring selected humanitarian provisions. He also intimated that the French were “thinking along the same lines as we are, though we had not disclosed this particular point with them and we had arrived at our conclusions independently.”Footnote 118 It was only a matter of time before the colonial powers joined forces.
The delegate closed his missive noting thus: “I should be glad to know whether, if the United Kingdom, alone [among the] nations represented here, were to make a reservation on civil war, this would be likely to have unfortunate repercussions on our foreign relations … I am afraid the question is rather urgent because our position here is becoming increasingly embarrassing.”Footnote 119 These arguments and strategy echoed in London where in a special meeting the Cabinet approved the recommendation to no longer press for deleting internal conflicts from the conventions.Footnote 120
Meanwhile the debate in Geneva further stacked the odds against the restrictive “sovereigntist” position. After weeks of intense debate, the special committee voted on the question of whether internal conflicts should be included in the Conventions. Although only a simple majority was required, an overwhelming vote of 10:1:1 (public by show of hands, but unrecorded) confirmed that the project of regulating internal conflict had broad support.Footnote 121
Yet uncertainty remained over just how internal conflicts would be regulated. The options on the table were the Stockholm text and two proposals that allowed for the application of the Conventions in internal conflict but with conditions. The Australian delegate suggested forming a smaller working party (US, France, Australia, Norway, and Switzerland) to construct a compromise text. However, retaining various conditions for the application of the rules, the resulting working party draft again drew strong critiques from Switzerland and the USSR, among others. The ICRC was most emphatic: “the text drawn up by the Working Party could never have been applied in any recent case of civil war. It therefore did not represent a progress with regard to the present situation.”Footnote 122 Drafters were forced back to the drawing board.
Although frustrating, these debates effectively shaped the parameters of the eventual rule by clarifying which elements were politically unacceptable: the insertion of reciprocity, state discretion, and the conditions of rebel territorial control and organization. Notably, participants could all agree on only one formal caveat, that the application of the rule would not legally legitimate rebel groups. The stubbornness of the ICRC, small and medium powers, and most crucially the Soviet bloc, proved fundamental to this outcome. The push to include a precise, narrow definition of internal armed conflict was clearly revealed to be on the losing side, with skeptical or cautious delegations eventually managing to propagate only two implicit agreements: that the new rule would not cover banditry and forms of low-level criminality, and that the application of humanitarian law did not equate recognition of belligerency.
Isolated Empires React
While French officials in Paris had begun to understand that the majority of the conference wanted to include internal conflicts in the Conventions, they still endorsed a restrictive text.Footnote 123 Skeptical of this attitude, their delegate in Geneva decided to buy time and continue participating in the debates, ensuring that the terms on internal conflicts were “as attenuated as possible.”Footnote 124
It was around this time that the French and British delegates (separately) realized the similarity of their intentions and the petite minorité (in their own words) they comprised.Footnote 125 They then decided to work together to concoct a formula acceptable to them, capable of gaining broader support and thus of neutralizing extremist (humanitarian) alternatives. Tellingly, the British delegate explained that by achieving this:
we would thereby have some room for maneuver and it would go far to remove from us the stigma which was hampering us throughout the conference of being anti-progressive and humanitarian. “The UK seeking international authority to use brutal methods for the suppression of revolt in the remnants of crumbling empire”— quotation in one Swiss paper. At the same time we could, with care, ensure that only the most harmless provisions would be made applicable and these would not in any way endanger the rights or power of a legitimate Government to re-establish, by all proper means, its control over its own territory against insurgents.Footnote 126
After weeks of carefully relaying home the ongoing Geneva debates, the French delegate finally convinced Paris to change instructions. The note he received claimed that the French government now believed, “that, on a matter such as civil war, which by its nature gives rise to such deeply divergent opinions, one thing is important: to apply as broadly as possible the humanitarian principles which lay at the basis of the Universal Declaration of Human Rights and the Genocide Convention recently approved by the United Nations. These principles are precisely the same as those that appear on the Preamble of the Convention on Civilians and which, it is desired, should be extended to the other Conventions.”Footnote 127 Paris no longer demanded formal conditions of application.
The new instructions justified the change partly by claiming that, “in taking this position, the French government is consciously staying faithful to the ideal of humanity that has constantly inspired its policy.” But the same letter revealed that the changed French attitude was also self-serving: “At the same time, this position presents the advantage for states which like France, the UK, Belgium, the Netherlands, etc. have overseas possessions and which, in these dominions, can face conflicts bearing traits of a civil war, to avoid having to apply the precise text of the Conventions.”Footnote 128 French instructions mandated filing a formal reservation if these views were not met.
The new French proposal quickly garnered key supporters (the UK, Monaco, Uruguay, and the ICRC) in Geneva, yet full agreement on it was not immediate, and a second working party, led by France, was charged with redrafting. Meanwhile, the British set out to lobby others for support, particularly the Commonwealth states and the US.
The resulting new draft featuring the language of “armed conflict not of an international character” and lacking formal conditions was soon presented in public. Proudly, the French claimed it “contained no clause of a political character which could possibly lead to contestation.”Footnote 129 And indeed, with some important additions of content, former critics now pledged their endorsement.Footnote 130 Though it seemed plain that the new French text was the only plausible alternative, hurdles remained. Most importantly, Soviet delegates (long expecting instructions from Moscow) finally presented their proposal to the special committee. As anticipated, their formula was not modest: in essence, the USSR promoted the Conventions' application in full to internal conflicts. Would the colonial powers' favored text manage to counteract the “extreme” Soviet formula?
A Missed Opportunity
After over a dozen tense meetings on the subject, the special committee put the available options to a vote. Shockingly, all formulas were rejected, with the French proposal failing narrowly.Footnote 131 Two contingencies led to this outcome. First, the Burmese received sudden instructions to completely oppose any rule on internal conflicts, responding to an aggravating insurrection at home.Footnote 132 Second, the Uruguayan representative—reportedly a supporter of the French text—was unsure that his position as chair permitted him to vote and so he refrained. After the long struggle for a compromise, only the Burmese openly celebrated this outcome. The Swiss delegate wondered whether, after all, the rule on internal conflicts should be deleted.
This turn of events offered initial detractors, particularly the UK, a precious opportunity to simply support the exclusion of internal conflicts from the GCs. But they did not. Instead, delegates from France, the UK, Australia, and the USSR quickly took exception to the vote and urged the chairman to submit the various options to the larger joint committee where the issue could finally be settled.Footnote 133
The British head delegate explained his attitude to his colleagues in London thus: “[Although] our original hope had been to exclude the application of the Conventions to any form of civil war,”Footnote 134 given recent developments, he recognized that this was improbable under the circumstances. The best option was to try to block the undesirable Soviet (overly humanitarian) texts or unlikely (overtly conditional) drafts by throwing their weight behind their own compromise version.Footnote 135 British calculations were influenced not only by voting expectations and the climate of opinion inside the negotiating room, but also by enduring concerns with negative external perceptions. The British were cued to a perceived high risk that the international press might report derisively on their actions, including the motion on internal conflicts. A Reuters correspondent in Geneva had made it plain that he would expose British recalcitrance on this and other matters “on which we are having very difficult going” and on which he and the USSR “are severely determined to make propaganda capital.”Footnote 136
In the end, joint French-British lobbying of other delegations worked; once presented to the joint committee, all versions of the text were rejected except for their draft.Footnote 137 The decisive moment came in plenary when the French proposal faced off against the Soviet text and the Burmese motion to delete.
Spirited interventions preceded the final votes. The Soviets insistently vouched for their text, singling out various humanitarian provisions that would be excluded if the French draft were adopted.Footnote 138 With strict instructions to oppose, the Burmese delegate gave a remarkably impassioned, thorough speech that highlighted the new rule's extreme dangers for national sovereignty, especially for the colonial powers. He said pointedly: “Some of you, especially the delegations of Colonial Powers, have really been remarkably broadminded to support the Article, though it is going to encourage Colonial wars … the only help that [it] will give, if you adopt it, will be to those who desire to loot, pillage, political power by undemocratic means, or those foreign ideologies seeking their own advancement by inciting the population of another country.”Footnote 139
Burmese fear mongering fell on deaf ears. France and Britain did not move, and Burma remained the only delegation to publicly oppose the inclusion of internal conflicts in the Conventions. Tellingly, forum isolation weighed heavily upon Burma's delegate who publicly complained of suddenly being threatened with “losing the respect of other countries” and being “placed outside the laws of humanity” for “going where others fear to tread” by voicing his considered views. His distress was such that he requested the final vote be made secret so he would not be placing his (closeted) “friends” in an embarrassing position.Footnote 140 The final (public but unrecorded) votes in the joint committee and later in plenary confirmed the predictions of the colonial powers. In the joint committee the Soviet proposal lost 20:11:7, while the French draft was overwhelmingly accepted with a 34:0:10 vote. Finally, the plenary of the conference adopted the French draft as Common Article 3 to all four Conventions with a vote of 34:12:1.
Alternative Explanations
What other factors and processes may explain CA3 as designed? States may have plausibly harbored instrumental interests to regulate internal conflicts in the 1940s, namely: clarifying expectations between parties to conflict and eliciting reciprocity,Footnote 141 “locking in” standards of good conduct anticipating civil war outbreak,Footnote 142 or preventing humanitarian externalities such as cross-border refugee flows. Strikingly, none of the sponsoring delegations in the 1940s made instrumental arguments to sponsor CA3. Indeed, when instrumental claims were made it was against CA3 as designed (i.e., without conditions of application) and even those arguments failed.
Distributional cost partially illuminates the initial constellation of state positions. Stable democracies such as Norway and Switzerland, for example, were probably unconcerned with civil war within their borders and could safely support this rule. The same goes for the Soviet Union: as a stable autocracy keeping socialist societies under the tight Stalinist grip, it probably saw formal acceptance of a humanitarian rule on internal conflicts as costless. By contrast, Britain and France worried about colonial insurrections and initially made the contrarian case, as did China and Greece, which faced ongoing civil war at home.
Yet the explanatory power of distributional cost is limited. It downplays the important humanitarian motive among many (though not all) of the supporting delegations, and by the ICRC. Most importantly, it ignores the political dynamics and effects of the negotiation process, and their impact on the outcome. The public position of most skeptical states transformed (from rejection to acceptance) during negotiations without correlated changes in those states' domestic situations. Britain and France had the most dramatic change of heart without a corresponding reduction of unrest in their colonies. China and Greece, still conflict ridden, also turned and acquiesced to a rule whose nature and design they initially disliked. Making sense of these changes requires going beyond static distributional costs.
Similarly, how do we explain the conduct of other delegations, such as the United States or Mexico? We may imagine reasons that both states would have wished to reject a rule like CA3 (e.g., looming communist revolutions in the American sphere of influence, political instability in Mexico) yet the Mexicans were vocal supporters throughout, and Americans served as moderate skeptics who ultimately acquiesced. Finally, distributional cost-benefit analysis leaves open questions about Soviet bloc behavior. One may accept that the Soviets perceived a rule of this sort as riskless, but why then promote it as intensely as they did?
Rationalist bargaining mechanisms such as side payments and issue linkages might be posited, yet these explanations find no support in the archival evidence. Indeed, the very question appears theoretically implausible: why should states have wished to provide side payments or trade concessions with others for securing agreement (or sowing disagreement) on the issue of internal conflicts, and particularly on CA3 as designed?
At various times, British officials cited a concern with acquiring a negative reputation for intransigence among the rest of delegations. Was this then an instance of reputation at work? Not if one conceptualizes reputation as rationalist scholarship commonly does, that is, as states' concern with image strictly in relation to future instrumental gains and losses.Footnote 143 Indeed, the private concerns of the empires' delegates evinced not a material or instrumental worry but a deep social anxiety linked to discrediting forum isolation, properly interpreted as a concern for opprobrium and status.
Among the constructivist alternatives to my argument, a classic branch of the literature typically insists on state identity as constitutive of interest, and on persuasion as the dominant mechanism explaining belief or interest change among state skeptics amid international norm emergence.Footnote 144 Thus, regarding state motivation and interest, one would expect liberal democracies and illiberal or authoritarian states to have been split on the question of whether to “humanize” internal conflicts via international law, the former in favor and the latter against.
The empirics bear this out only partially. Certainly, the liberal identity of states such as Norway, Monaco, Mexico, and Switzerland could explain their sponsorship of the innovation, and though the US was initially distrustful of an unconditioned humanitarian rule, in the end the American liberal identity too may have compelled its delegates to embrace it. But what of the Soviet bloc attitude? Their fierce support could hardly be explained simply as the product of its authoritarian identity, much less as inspired by selfless humanitarianism. Finally, liberal Britain and France were strong opponents and skeptics, first in public and later in private.
Was persuasion the force behind attitudinal change among initial detractors, especially radical skeptics Britain and France? Although principled entrepreneurship and moral argument unquestionably played a central role in the agenda-setting phase and remained important throughout negotiations, CA3 cannot be said to have been the product of persuasion, whether moral or deliberative. As the primary evidence demonstrates, those that opposed it remained unconvinced of its wisdom until the end—despite their shifting public position, neither their interests nor their beliefs were transformed during negotiations.
Conclusion and Extensions
Despite colonial deception at its birth, CA3—the pre-eminent international legal rule governing internal armed conflicts—proved an influential development in international law. It implied a remarkable normative change in global politics: legitimizing the idea that internal conflict fell within the purview of modern international law. Although not wholly uncontested since, this has become an accepted proposition over time, driving a fragile but indelible wedge into older notions of sovereignty and national security, and promoting humanitarian restraint and protection in internal conflict.
Britain and France's introduction of ambiguity into CA3 is a complex finding that requires simultaneous underscoring and qualification. On the one hand, the archival evidence demonstrates that this was done deliberately. Since until today France is credited as “saving the day” by proposing the compromise formula that eventually became CA3, it seems important to show that benevolence was hardly a driving motive. Although one may claim that ambiguity facilitated the rule's adoption, it also came at a heavy cost. Indeed, CA3's indeterminate definition certainly operated as a permissive cause behind states' refusal to apply it.Footnote 145 The cases of Britain in Malaya, Kenya, Cyprus, and Northern Ireland, or France in Tunisia, Morocco, and Algeria, are historical examplesFootnote 146 and the practice of “conflict denial” endures into the present.Footnote 147
On the other hand, ambiguity can cut both ways, with some claiming it has facilitated CA3's application, or ICRC operation, in certain cases of low-level armed violence.Footnote 148 This was the ICRC's initial reasoning for the “armed conflict not of an international character” phrase—that having an imprecise definition might expand legal coverage. Second, it is imaginable that, no matter how precise, any definition might have elicited states' resistance in practice. Thus, even if the adopted rule had featured the conditions some advocated in 1949 (together approximating a definition), controversies would have arisen anyway, perhaps making application even harder by giving states greater “plausible deniability” that (high) conditions were not met.Footnote 149 Third, although over the last few decades scholars and international jurisprudence have helped to clarify the definition of non-international armed conflict, this has still not ended controversies around whether such a conflict exists or not. An imprecise definition is thus not the sole permissive cause of inoperation; it is compounded by a near-absence of enforcement mechanisms.
The CA3 case provided the empirical basis for my theoretical argument on forum isolation and covert pushback. Before closing, I discuss an additional short case as a preliminary plausibility probe.
States revised the GCs again in the 1970s after several bloody civil wars and wars for self-determination.Footnote 150 Major Western states rabidly opposed the idea of “national liberation” as a valid category, refusing to create special rules for it. Yet by the 1970s the world had seen sea-changes in sovereignty; the decolonization of nearly seventy mostly African and Asian states had made Western states a minority in universal-membership forums. At the 1974–1977 Diplomatic Conference revising the GCs (which featured similar procedural characteristics as the 1949 Conference, that is, universal participation, consensus decision making in the shadow of supermajority vote, and important publicity), Britain and France again emerged as the key detractors of granting recognition and protections for national liberation war and freedom fighters; the US also rejected the idea as politically inconvenient and legally damaging.
Status struggles permeated this period. Although British and French decolonization had advanced apace, both states still held colonial territories. This kept them vulnerable to international scorn. The British seemed especially sensitive, facing ongoing troubles in Northern Ireland. Meanwhile France fostered the project of the Communauté Franco-Africaine as essential to its foreign policy.Footnote 151 Elsewhere, Pompidou strengthened French ties with the European Economic Community, regained an interest in multilateral diplomacy, and worked to promote good relations with the US.Footnote 152 Britain too, despite its troubled accession process to the European Economic Community, increasingly looked to Western Europe as a means to enhance its regional influence and find its role as a middle power all while maintaining its special relationship to the US.Footnote 153 The US scrambled to contain Vietnam-related domestic and international pressure amid ongoing Cold War ideological competition.
The decolonized world thus enjoyed key comparative advantages. Politically, their moral crusade for self-determination succeeded in delegitimizing colonialism. Numerically they were superior, and they cherished the support of a Socialist bloc still bent on embarrassing the old European empires and the US.
During an initial committee debate in 1974, Western states bet on garnering broad support against the inclusion of national liberation war in Additional Protocol I to the GCs. They lost resoundingly, 70-21-13.Footnote 154 Flummoxed, they weighed their options, painfully aware of the public cost of their isolated intransigence on the national liberation issue, yet no less averse to it. The British explicitly cited the “great anxiety on all sides not to want to seem unsympathetic to the Africans or to appear racialist [sic]” as a reason to accommodate such demands.Footnote 155 No Western state wished to be singled out as racist or insensitive to the needs of the African countries, playing into hand of the Soviets. How to balance these social and security concerns? US delegates devised a stealth tactic by writing into Protocol I a clause conditioning the application of the law to national liberation upon the demonstrated ability of freedom fighters to respect Protocol I. Betting that no liberation group would meet this reciprocity standard, the West quietly hoped to void the legal commitment. And though the British and French harbored doubts about the efficacy of this trick, the prospect of being distressingly isolated led them to switch from opposition to abstention in the plenary vote, and then to agree to adopt Protocol I by consensus. The Western tactic worked: Protocol I never applied to wars of national liberation.
A second protocol, extending CA3's contents but applying strictly to high-level civil wars, also emerged from these negotiations. Its fate was sealed, however, once the Third World majorities denounced it as gravely inconvenient (unsurprisingly, given pervasive postcolonial instability and rebellion). Only a concerted effort by a group of moderate delegates helped to save this protocol. The price was a highly restrictive scope of application, essentially the same elements that skeptics had unsuccessfully demanded in the 1940s.
The case of Protocol I further demonstrates the operation of isolating opprobrium when the procedural and structural conditions laid out are present, enabling and sharpening the social power of the supermajority and according it socio-political meaning. The case of the Second Protocol—in many ways the negative mirror image of CA3—illustrates the crucial importance of majority pressure and status politics: no amount of humanitarian rhetoric, from the ICRC and others, convinced the newly empowered decolonized states to eliminate or lower the conditions set for that instrument's broad application to internal conflict. With the Third World coalition knowing itself a legitimate and decisive majority, the minority's rhetorical shaming failed.
Other cases support my argument's operation across issue areas. Brian Simpson's study of Britain's decision to vote for the Genocide Convention in 1948 is one critical example.Footnote 156 The adoption of controversial international human rights provisions and documents also appear to have ultimately been adopted as a result of majority opprobrium pressure on skeptical Western states.Footnote 157 The same goes for aspects of the 1984 Torture Convention, and of the 1998 Rome Statute.Footnote 158 Even in issues like arms control,Footnote 159 international political economy,Footnote 160 and intellectual property rights,Footnote 161 scholars have noted how reluctant states have acquiesced to a majority or a perceived consensus to save public face, avoid solitary shame, and salvage their interests.Footnote 162
Opprobrium and status politics during codification have continued into the post-Cold War era, not only among states but from epistemic and advocacy networks, and not only against the West.Footnote 163 Even if evidence of forum isolation is hard to collect systematically for recent or large numbers of cases, its repeated appearance in the historical and contemporary record suggests it is no anomaly. And though clearly not all states have acquiesced to isolating opprobrium in conference, knowing that some have, even materially powerful states, thereby enabling the emergence of important if ambiguous international rules, warrants further attention. Future work should refine these claims, focusing on variation across time, state types, and substantive issues, while also assessing the conditions that block the effect of forum isolation.Footnote 164
Supplementary Material
Supplementary material for this article is available at <https://doi.org/10.1017/S0020818318000097>.
