Why have states in the post-1945 period agreed to treaty regimes that limit their freedom of action to deal with civil war? This is the question addressed by Henry Lovat, a lecturer in international law and politics at the University of Glasgow School of Law, in Negotiating Civil War: The Politics of International Regime Design.

Lovat's approach is to decide on the theoretical analytic lenses that should be used in considering the negotiation of the three civil war regimes that the book covers: Common Article 3 of the 1949 Geneva Conventions; Article 1(4) of the 1977 Addition Protocol I and of Protocol II to those Conventions; and Article 8(2)(c)–(f) of the Rome Statute establishing the International Criminal Court. Negotiating Civil War focuses more on political science theory than on legal analysis. More than half of the book is devoted to theoretical discussion, rather than to the details of the legal regimes considered in Lovat's three case studies. The theoretic discussion is often laden with jargon that will be familiar only to those steeped in the field of “IR theory” (Lovat's acronym for “international relations theory”), and even the accessible material is often written in ponderous, complex prose, which is not easy to read.Footnote ¹

Chapter 1 is an in-depth discussion of various traditional international relations theoretical approaches to the development of international regimes, with extensive citations to their proponents. Lovat believes there are shortcomings in each of the existing approaches and that international relations theory is turning toward a growing recognition of the usefulness of a “multi-paradigmatic” approach. He calls the desired approach pluralistic “analytic eclecticism,” which draws on multiple research traditions and involves reasoning from an “‘intermediate level’ between induction from facts and deduction from theory” (p. 17).

After extensive review of traditional approaches in academic literature and further analysis, Lovat arrives at five hypotheses for analyzing the development of civil war treaty regulatory regimes:

1. (1) The Realist hypothesis: that great power preferences are likely to be especially significant;

2. (2) The Rationalist hypothesis: the more restrictive the treaty provisions, the less likely governments are to support them, particularly if engaged in or expecting a civil war, whereas the end of a civil war might make governments more likely to support restrictive provisions;

3. (3) The Agent Characteristics hypothesis: moral authority and expertise help governments and nonstate actors—Lovat calls them “norm entrepreneurs”—to elicit support for restrictive provisions;

4. (4) The Logic of Argument hypothesis: strong, coherent arguments premised on widely shared values and principles are likely to garner government support; and

5. (5) The Regime Type hypothesis: democracies are more likely to support restrictive provisions than nondemocracies.

Lovat uses these hypotheses in assessing the factual situations and the government and nonstate actors involved in the negotiation of the regimes addressed. His goal is to consider how these factors influenced outcomes. He describes his research methodology as “process tracing” and searching for the “empirical fingerprints” of the hypotheses (pp. 53–54).

To a U.S.-lawyer reader, it may seem backward to develop hypotheses and then work to fit the facts into them, rather than drawing conclusions from a factual and legal analysis. Lovat explains that the book began life as a doctoral thesis. It is extensively researched, heavily footnoted, and contains a large bibliography. Indeed, the book still has the traits of a European doctoral thesis, in that it reaches back in history, develops a thesis, and then leaves no research stone unturned in addressing it.

Lovat's second chapter provides historical background, beginning with the concept of civil war in archaic Greek societies and the description of Roman wars in the late first century and running to 1949. Along the way, he reviews the contributions of Grotius, Gentili, and Vattel to the law of war. Lovat cites the 1863 Lieber Code (General Orders No. 100 for the U.S. armies in the field) as setting out national rules applicable to a civil war and notes that Oppenheim said at the beginning of the twentieth century that international law was not applicable to civil wars unless the parties recognized one another as belligerents. He points to the Martens clause in the preambles of the 1899 and 1907 Hague Conventions, which declared that, in cases not covered by those conventions, populations and belligerents remained under the protection of the principles of international law resulting from the laws of humanity and the requirements of the public conscience.

Chapter 3 addresses the negotiation of Common Article 3 of the 1949 Geneva Conventions,Footnote ² the first of Lovat's three case studies. Lovat reviews how the International Committee of the Red Cross's (ICRC) initiative to update the 1929 Geneva Conventions led to a 1947 experts meeting, an ICRC draft text, and the Swiss-convened diplomatic conference in 1949, where it was initially proposed that in noninternational armed conflicts (NIACs) each party be bound on the basis of reciprocity to the provisions of the conventions. Lovat reviews the controversy this engendered, eventually leading to a French proposal for the text of Common Article 3 that was adopted by secret vote in the plenary.

Rather than a traditional legal analysis, Lovat focuses on the motivation of key countries that participated in the negotiations as seen primarily through the lens of his theoretical hypotheses, basing this part of his discussion primarily on secondary sources. For example, Lovat says that the United States had been ready to cover classic civil wars, but ended up balancing “regional material hegemony” with “rhetorical and discursive flexibility” (p. 111) and that the Soviets adopted a humanitarian, anti-colonialist approach to force the West to “defend morally problematic” positions (p. 116). Lovat concludes that the wording of Common Article 3, adopted in the international humanitarian context of the post-war period, bridges the gap between humanitarian aspirations and the actual preferences of the states that participated in the negotiations.

Chapter 4 deals with the 1977 Additional Protocols to the 1949 Geneva Conventions. The ICRC convened meetings of government experts in 1971 and 1972Footnote ³ to prepare the groundwork for the diplomatic conference that met in four sessions from 1974 to 1977 to prepare and adopt two additional protocols—Protocol I, concerning international armed conflicts, and Protocol II, concerning NIACs.Footnote ⁴

Lovat reviews the insistence of developing countries at the 1974 session of the diplomatic conference on treating wars of national liberation as international armed conflicts. “Conservative” Western countries (Lovat distinguishes these from “liberal” Western countries) were concerned that classifying conflicts based on the motives of the belligerents rather than objective criteria favored a “just war” approach and was not in keeping with humanitarian traditions; their concerns made no headway. What would end up as Article 1(4) of Protocol I, providing that wars of national liberation be treated as international armed conflicts, was adopted.Footnote ⁵ Both a relatively high threshold and relatively rigorous provisions for Protocol II were adopted in 1975.Footnote ⁶

The chapter then reviews the important developments concerning NIACs that occurred during the1977 final session of the diplomatic conference. To moderate the impact of Article 1(4) of Protocol I, what became Article 96(3) was agreed among various delegations, providing that the Protocol would become applicable to a national liberation movement only if it submitted a declaration to the depositary assuming the same rights and obligations as a party to the Geneva Conventions and the Protocol.Footnote ⁷ In addition, in view of growing concern about the rigor of the substantive provisions that would be applicable in NIACs, particularly among developing country delegations, Canada and Pakistan crafted an abbreviated version of Protocol II. Despite varying positions of states, “with the USA leading the Western block in ‘consensus-seeking’, the Pakistani draft (with minor amendments) was adopted by consensus” (p. 158).Footnote ⁸

The remainder of chapter 4 considers the various delegations’ motivations and assesses their behavior through the lens of the hypotheses put forward in chapter 1. For example, Lovat submits that the approach of the United States to the negotiationsFootnote ⁹ was overshadowed by Vietnam, influenced by a conservative Pentagon. As explained below, this inaccurately describes how U.S. positions were developed. He also mentions several times that the United States exhibited a degree of cooperation with the Soviets on ensuring the nonapplicability of the Protocols to nuclear weapons (e.g., pp. 159, 180). However, the U.S. delegation report says that during the course of the conference there was “no consideration of the issues raised by the use of nuclear weapons.”Footnote ¹⁰

Lovat thinks the U.S.-led Western group exhibited Rationalist characteristics, that conservative Western states exhibited Agent Characteristics, and that Egypt and Pakistan exhibited Logic of Argument characteristics. He posits that the Regime Type hypothesis was problematic here since authoritarian states favored the most demanding Protocol II provisions, likely because they did not expect to have to apply them.

Chapter 5 deals with the negotiation of Article 8(2)(c)–(f) of the Rome Statute,Footnote ¹¹ which established the jurisdiction of the International Criminal Court over war crimes in NIACs. Lovat first notes that the creation by UN Security Council resolution in 1993 of the International Criminal Tribunal for the former Yugoslavia (ICTY) and in 1994 of the International Criminal Tribunal for Rwanda (ICTR) provided the context for further work on the establishment of the International Criminal Court (ICC). The former provided jurisdiction over grave breaches of the 1949 Geneva Conventions as well as violations of the laws and customs of war, but did not deal with war crimes in NIACs. However, the ICTY Appeals Chamber held that the laws and customs of war included acts committed during internal armed conflict.Footnote ¹² The ICTR explicitly provided jurisdiction over violations of Common Article 3 and Additional Protocol II. Footnote ¹³

Lovat describes a vigorous debate on whether war crimes during NIACs should be within the jurisdiction of the court that continued until late in the 1998 Rome Diplomatic Conference that adopted the ICC's statute. The jockeying led to a final proposal by the Rome Conference Bureau that was adopted. The adopted version of threshold provided broader NIAC coverage than Additional Protocol II.

The key focus of the chapter again is on assessing the roles of the key participants in the negotiations. Lovat argued that the “like-minded group” (which included Australia, Canada, Netherlands, Belgium, and others) took a principled, humanitarian stance, arguing that most conflicts were NIACs and that there needed to be broad coverage. He cites the U.S. delegation chair as saying that the U.S. position was most heavily influenced by the U.S. Department of Defense (p. 230, n. 95), but notes that the United States served as a constructive broker on the threshold. Lovat characterizes Russia as obdurate on coverage of NIACs.

Viewed through the lens of his hypotheses, Lovat says the like-minded group recognized the need for some great power support (the Realist hypothesis). The Rationalist hypothesis was reflected in countries that considered themselves at low risk of internal conflict, or had recently emerged from such a conflict. In terms of the Agent Characteristics hypothesis, he notes the ability of Canada and other like-minded states to leverage moral authority and subject matter expertise. And the Logic of Argument hypothesis was seen in the strong, coherent arguments advanced by delegations and NGOs in favor of robust NIAC provisions. Lovat suggests a possible correlation between Regime Type and positions. On the whole, Lovat says the result was driven by “middle-ranking” Western powers with the support principally of the Western P-3 (pp. 254–55).

All in all, the case studies in Chapters 3–5 often describe the evolution of positions without providing the relevant texts, sometimes making them hard to follow. They focus extensively on the threshold for coverage of NIACs but largely ignore analysis of the substantive provisions negotiated for each regime. Secondary sources are extensively referred to as authority for various propositions.

In Chapter 6, Lovat returns to a discussion keyed to his theoretical hypotheses. He argues that his case studies show that at least some great power support is needed for establishing an internal armed conflict regime (the Realist hypothesis). He further argues that, for the most part, governments can be expected to prefer a regulatory regime that does not require costly changes in behavior, often preferring regimes with minimum restrictiveness that can nevertheless be characterized as humanitarian progress (the Rationalist hypothesis). Lovat suggests that moral authority plus technical expertise are effective, particularly when “nested within broader normative narratives” (p. 270) (the Agent Characteristics hypothesis). He also notes that “cognitive consensus” based on strong, coherent arguments can develop over time (p. 274) (the Logic of Argument hypothesis). Lovat believes the Regime Type hypothesis may be a less salient factor.

On the whole, Lovat believes he has made a strong case for the relevance of his hypotheses. And while saying that further research would be useful, he says his “conservatively eclectic” theoretical approach should generate a “balanced, nuanced—and ultimately persuasive—account of the design of civil war regimes” (p. 289). He believes Negotiating Civil War provides “a wider set of lessons . . . for government policymakers and officials designing and implementing multilateral negotiating strategies” and concludes that his findings “constitute a valuable contribution” (pp. 301–02).

To this reviewer, however, the salience and novelty of Lovat's hypotheses are questionable. To some extent they seem obvious. Governments and experienced multilateral negotiators already likely consider the factors that Lovat's hypotheses describe, although not using the same terminology. It is natural that governments engage in cost-benefit analyses when developing negotiating positions. And in any multilateral negotiation, major powers will usually have larger delegations, more expertise, and more negotiating influence than less powerful states. Not only do major powers provide aid and support to smaller countries, they have a greater capacity for their capitals to instruct their embassies to approach other governments to lobby for support both before and during the negotiations.

Moreover, Lovat's hypotheses do not seem to fit the actual process for developing negotiating positions. For example, the Regime Type hypothesis does not square with how the U.S. positions were developed for the 1971–1977 conferences on the Additional Protocols.Footnote ¹⁴ U.S. positions were drafted within the U.S. State Department Office of the Legal Adviser, vetted with State's International Organization Bureau, and then there were multiple meetings, primarily with the lawyers for each of the Armed Services and for the Joint Chiefs of Staff, and representatives of the Office of the Secretary of Defense, the Defense Department's General Counsel's Office, and the Arms Control and Disarmament Agency's General Counsel's Office. The effort was to achieve the maximum humanitarian progress consistent with military requirements. While the U.S. positions were developed in the shadow of the Vietnam War, it is inaccurate to say the Pentagon was the driver of U.S. positions. Moreover, while senior level State Department authority was obtained for participation in the negotiations, there was no real political oversight except on matters such as conference participation (for example, the successful U.S. effort to deny accreditation to the PRG, the purported South Vietnamese liberation movement). Since all the major offices concerned were represented on the delegation, it was normally not necessary to seek or receive instructions during the three-month conference sessions.

Lovat's Agent Characteristics and Logic of Argument hypotheses overlap in that they both relate to putting forth strong, expert arguments in a coherent manner and having those arguments seen as based in moral authority or shared values. More problematic, Lovat attributes his hypotheses as drivers of government participation in negotiations. What he ignores for the most part is the importance of the personalities of individual participants in negotiations. Where he cites an individual as having expertise and prestige, e.g., George Abi Saab (p. 175), he tends to attribute this to the state, i.e., Egypt in this case. Lovat is looking for empirical fingerprints of his hypotheses primarily at the “state/government” level (p. 56). However, in multilateral negotiations it is possible that the delegation of a major power may not have activist participants who exhibit great expertise and moral authority, while a small state may have such a person on its delegation. And the personality of the delegation member may well have more of an influence on the negotiations than the size or standing of his or her state. To participate effectively in a multilateral negotiation, one needs not only to be able to read and figure out the extent to which one can accommodate the interest of other states but one needs also to be able to read the personalities of the other participants and understand what levers and methods will be effective in influencing them. In any event, it is clear that if one wants to gather sufficient votes for plenary adoption of legal texts, it is necessary to negotiate an outcome that a large majority of the delegations can support.

Negotiating Civil War provides useful background on the development of legal regimes regulating civil wars, both historically and in the three case studies. Lovat makes insightful observations about the roles of various players in the negotiations. His main objective, to develop hypotheses that explain the negotiation of civil war regimes, will be of more interest to international relations theorists than to international law practitioners, particularly lawyers who negotiate multilateral agreements.