This post is part of a symposium on Jessica Whyte’s essay “The ‘Dangerous Concept of the Just War.’” All contributions to the symposium can be found here.

In her essay Jessica Whyte makes a fascinating intervention in the age-old debate on the origins of international humanitarian law (IHL) and its relationship with just war theory. In challenging Western-centered explanations, Whyte’s essay offers an intriguing perspective on the role of anti-colonial actors in IHL’s making, which is the focus of this review of her work. Unlike Walzer-ian accounts linking the discipline’s history to premodern conceptions of justice, she makes a compelling case emphasizing the transformative impact of twentieth-century anti-colonialism.^[1]

In a critical and third world approach to studying international law, Whyte emphasizes anti-colonial politicking and, in particular, its exceptional lead from the late 1960s onwards in challenging Western imperial legacies for regulating warfare. While mobilizing the language of just war traditions, a broad coalition of anti-colonial drafters embraced an alternative vision of humanity in warfare, drawing on ideas of self-determination and anti-imperialism. While doing so, they were even willing to risk the entire drafting process.

In shedding light on their extraordinary efforts to end myriad colonial legacies, Whyte shifts our focus away from a stress on medieval Christian conceptions of justice linked to nineteenth-century European efforts to humanize warfare, to instead concentrate on anti-colonial and antiracism efforts in the 1970s leading to the Additional Protocols’ acceptance. Whyte makes clear that it is hard to imagine how anyone might think of IHL’s history in the 1970s without engaging with larger questions involving the history of decolonization, race, or that of the global Cold War.

In advancing this provocative thesis, Whyte makes two major contributions. In the first place, she enriches in several ways an existing—though still highly underdeveloped—historiography tracing non-European contributions to IHL’s development after 1945.^[2] While not rooted in archival work, Whyte’s essay restoring non-European agency is based on excellent research, and the critical insights she provides are systematically backed up with detailed evidence. Secondly, in recovering the contentious nature of the law’s making and the contributions of anti-colonial and socialist actors, she makes clear why liberal narratives of its history need major revision (326). And, more crucially, she presents a compelling critique of post-1977 reflections from former Western drafters (for example, George Aldrich) by unmasking their proclaimed “neutral humanitarianism” as cynical efforts to secure hegemonic interests such as NATO’s (air) power (322).

The appeal of Whyte’s essay is not just that it challenges several misreadings of history, or that it gives non-Western drafters a form of agency, but also because of its attempt to draw on interdisciplinary trends, from international legal history to critical approaches to international law, in an attempt to reimagine the law’s past. Still, it raises a number of analytical, historical, and methodological problems that require our critical attention.

If we turn to the protagonists Whyte presents to us, it is striking how homogeneous, if not monolithic, they are framed as a group of actors. At times, the reader may gain the impression that the West, the Soviet Bloc, or the Third World had a coherent legal vision around which all of its members could easily unite. Other times it may appear as if socialist delegates and the anti-colonial coalition (which included fiercely anti-communist states) shared a particular ideological viewpoint on humanity in warfare.^[3] In reality, each drafting bloc and individual delegations experienced major divisions, with critical implications for the law’s future, as has been shown in recent work by Giovanni Mantilla and Amanda Alexander.^[4]

To give one example: whereas influential NATO powers expressed continuing frustration about their Norwegian ally’s support for national liberation movements to take part in the Protocols’ negotiations, the Soviets saw the Czechoslovak endorsement for the Tehran resolution, in 1968, around the Prague Spring, as a highly problematic move. Whyte’s lack of appreciation for these internal divisions within major power blocs may be one of her essay’s strengths in making a theoretically coherent case, but it is also one of its historical weaknesses. Most importantly, it fails to give an historically satisfying account of critical dynamics that took place within delegations or alliances closing off important alternative legal trajectories. Excavating the archives will be one way of solving this historical deficiency to recover alternative IHL-conceptions in the previous century.

A more significant problem affecting Whyte’s analytical model is that it devotes (too) little attention to the paradoxes, hierarchies, limitations, and contradictions of its own objects of study. On the one hand, anti-colonial delegates engaged, together with Soviet drafters, in successful efforts to embarrass the Western powers on the global stage by devoting critical energy to ending several discursive colonial legacies. On the other hand, because of the state terror (for example, Indonesia’s anti-communist mass killings of 1965–66) and wars of secession (Biafra) they were engaged in at home, anti-colonial delegates frequently resisted the ICRC’s efforts to further expand the Conventions into their own domestic backyard.

In Whyte’s account, we can find hardly any trace of this historic debate that lies at the origins of the Second Additional Protocol’s making (APII). Her narrow approach focuses primarily on two questions: 1) the legitimacy of national liberation under IHL; and 2) the protection of so-called “freedom fighters” in the hands of colonial and/or racist masters. This measured outlook clearly leads to several interesting insights, but it remains remarkably silent about related, if not heated, debates regarding the regulation of violence in non-international armed conflicts (NIACs).

Although highly in favor of extending protections to so-called “freedom fighters,” anti-colonial delegates rejected doing so for secessionists or political prisoners operating within their own contested borders, as IHL’s most frequent invokers in this period.^[5] Facing these rebels, most states from the Global South were very much opposed to regulating internal conflicts, an attitude that turned them into strange bedfellows with their former British colonizer. Apart from neglecting to make a real effort to assess the consistency of anti-colonial arguments, or to engage with the perverse effects of their sovereigntist impetus, Whyte also fails to make reference to the powerful socialist opposition towards Western plans to strengthen the law’s effectiveness through empowering ICRC supervision. Nor does she tell us what this may say about their actual motivations (for instance, in light of the Brezhnev doctrine), or their historical meaning.^[6] As they did in 1949, socialist (and many postcolonial) delegates in the 1970s expressed at times far more interest in spreading anti-Western propaganda than strengthening the law’s protections for victims of state terror. Given today’s debates about APII’s relevance in light of Global South and U.S. non-ratifications, this fundamental problem merits further exploration.

In a similar way, Whyte’s disproportionate focus on analyzing postcolonial (and socialist) state behavior resonates with a broader trend in the relevant literature, but it leads to important omissions. For example, it leads to a blind spot disregarding the contributions of Western human rights organizations (i.e. the International Commission of Jurists, ICJ) in pushing the United Nations (UN) and International Committee of the Red Cross (ICRC) to restart the law’s revision process in the late 1960s.^[7] There is not even a single mention of the transformative work done by Seán MacBride, who “is as much a father of international humanitarian law as Dunant and … HRW and Amnesty International were as important in the dissemination and acceptance of international humanitarian law as the ICRC,” to quote IHL-expert Alexander.^[8]

A former enemy of the British empire, MacBride pushed the anti-communist ICJ into adopting a more progressive line in relation to rights in armed conflict.^[9] He also drafted the original Teheran resolution including the (in-)famous reference to “minority racist or colonial regimes,” which sparked the UN General Assembly’s interest in IHL.^[10] This shift enabled postcolonial powers to take a prominent part in reimagining the discipline’s future. MacBride’s lobbying efforts were inspired not just by the Vietnam War’s atrocities—which are rightly at Whyte’s center of attention—but equally by Biafran, Congolese, and Indonesian suffering taking place around the same time. As Raphael Lemkin did in the 1940s for the Genocide Convention, MacBride’s work on behalf of the Geneva Conventions in the 1960s constantly reminded his partners at chancelleries and the ICRC headquarters of their commitment to revising these rules. The Irishman’s role in the Protocols’ pre-making deserves a far more prominent place in future accounts of IHL’s twentieth-century history.

At a deeper level, Whyte’s focus beyond Western human rights actors like MacBride serves her broader critique of human rights as a discourse and doctrine. For her, human rights has become a challenge to postcolonial sovereignty as well as a tool for legitimizing destructive Western “humanitarian” interventions in their own territories (for example, Libya in 2011) (329–330). This critique of the “responsibility to protect”-doctrine (R2P) is a perfectly intellectually defensible position, but I am concerned about its implications for IHL itself.

To what extent are the legal doctrines of R2P and APII two sides of the same genealogical coin—an attempt to conceive a new human rights politics breaking with nonintervention in the name of protecting civilians, as Whyte appears to suggest? And what future remains for IHL in times of NIAC if we accept the premise of noninterventionism—assuming this is our remaining legal alternative in Whyte’s utopia? To answer the last question, I expect humanitarian inaction to be the inevitable result, but this debate requires further thought and development.

For historians, there are three more points to take away from this piece. In the first place, it requires a sharper focus on the global spread of IHL concepts since 1949, challenging our assumptions about diffusion, translation, and (re-)appropriation. In Whyte’s work, anti-colonial drafters are frequently understood as actors utilizing, or subverting, Western concepts (for example, Lenin’s anti-imperialism), rather than taking part in vernacularizing indigenous conceptions of rights, sovereignty, crime, and so forth (323).

Secondly, historians need to better appreciate the contested and contingent nature of lawmaking, as a global arena of competing visions of humanity in warfare. Such recognition opens up new perspectives by allowing for the use of legal history to analyze specific patterns, from division to anachronism, and what historical meaning they should be attributed to. Lastly, Whyte’s excellent essay helps us to rethink IHL’s history beyond doctrinal viewpoints, as a challenge to engage in meticulous historical refraction of international law and its others. It reminds us that we are still far from certain about what exactly occurred in IHL’s recent past, except that it will offer scholars from different fields a subject of continuing discussion.

NOTES

^[1] Jessica Whyte, “The ‘Dangerous Concept of the Just War’: Decolonization, Wars of National Liberation, and the Additional Protocols to the Geneva Conventions,” Humanity 9, no. 3 (2018): 313–41, 321.

^[2] Two examples: Will Smiley, “Lawless Wars of Empire? The International Law of War in the Philippines, 1898-1903,” Law and History Review 36, no. 3 (2018): 511–50; and Helen Kinsella, The Image before the Weapon, A Critical History of the Distinction between Combatant and Civilian (Ithaca, NY: Cornell University Press, 2011).

^[3] For one (minor) exception to this rule, see Whyte, “The ‘Dangerous Concept of the Just War’,” 325.

^[4] Giovanni Mantilla, “The Origins and Evolution of the 1949 Geneva Conventions and the 1977 Additional Protocols,” in Do the Geneva Conventions Matter?, ed. Matthew Evangelista and Nina Tannenwald (Oxford: Oxford University Press, 2017), 35–68; and Amanda Alexander, “International Humanitarian Law, Postcolonialism and the 1977 Geneva Protocol I,” Melbourne Journal of International Law 17, no. 1 (June 2016): 15–50.

^[5] Mantilla, “The Origins and Evolution of the 1949 Geneva Conventions,” 53–54.

^[6] To be fair, Whyte does discuss Soviet anxieties (though not Chinese communist ones) about the language of self-determination being extended to Eastern Europe, but she does not dwell on it. Whyte, “The ‘Dangerous Concept of the Just War’,” 325.

^[7] Mantilla, “The Origins and Evolution of the 1949 Geneva Conventions,” 51.

^[8] Alexander, “International Humanitarian Law, Postcolonialism and the 1977 Geneva Protocol I.”

^[9] Ibid.

^[10] Keith Suter, An International Law of Guerrilla Warfare: The Global Politics of Law-Making (London: Frances Pinter, 1984), 26–29.