The first part of this chapter describes the background to and the main elements in the negotiation of Common Article 3 of the 1949 Geneva Conventions. The second part of the chapter analyses the negotiations, examining the conduct of the negotiations and the drafting outcome from the perspectives of key actors (principally US, UK, Soviet, French and ICRC delegations) with accompanying observations on positions taken by other delegations. The chapter then examines the implications of the negotiating history for the five hypotheses, finding that the drafting reflects a balance between competing symbolic costs and benefits arrived at largely through processes of principled contestation and moral and technical persuasion, conducted against the material backdrop of the nascent Cold War and decolonisation, as well as a broader humanitarian international normative Zeitgeist.

This chapter establishes the theoretical orientation of the study. Traditional IR approaches to regime development – which have typically drawn on a single research tradition – are mapped, and then contrasted with the pluralist approach taken in Negotiating Civil War, highlighting the rationale, principal benefits and challenges of drawing variously on Realist, Rationalist, Liberal and Constructivist insights. The hypotheses to be tested in each of the subsequent case studies chapters are then set out and their underlying explanatory factors identified. The chapter then sets out the potential interaction amongst these hypothesised factors in a ‘straw person’ diagram. The chapter concludes with a brief discussion of the key methodological considerations informing the study.

The chapter opens with an overview of the discussions on internal armed conflict at the four sessions of the diplomatic conference convened between 1974 and 1977 (the ‘CDDH’) which led to the conclusion of the first two Additional Protocols to the 1949 Conventions. The chapter then considers key outcomes of the CDDH – Article 1(4) of Protocol I, which requires ‘wars of national liberation’ to be treated as international rather than internal armed conflicts, and Protocol II in terms of both scope and content – from the perspective of the principal actors in the negotiations, in this instance the USA, UK, Canada, Nordic states (particularly Norway), Australia, Egypt, India, Pakistan, the Soviet Union and ICRC. In this instance, the provisions on internal armed conflict primarily reflected the preferences of materially less powerful states: the 1974 negotiation of Article 1(4) also illustrates well the limited efficacy of moral persuasion, technical authority and principled argument in the absence of a normative consensus across delegations. The 1977 drafting of Protocol II, in contrast, highlights the ability of weaker powers to deploy moral and technical authority alongside principled argument to bring about drafting outcomes.

The first section of the chapter draws together the findings from Chapters 3 – 5, revisiting Chapter 1’s ‘straw-person’ Figure 1 in light of the case studies to produce a more fine-grained portrait of how hypothesised and other factors contributed to shaping the civil war regime. This is followed by a reconsideration of how these factors combined in different instances to produce drafting outputs.

This chapter provides context for the study as a whole, situating the development of the civil war regime within the evolution of the international law of armed conflict. The chapter considers the classical, mediaeval and enlightenment manifestations of the legal distinction between international and internal armed conflict. It then discusses the rise and fall of the doctrines of belligerency and insurgency, the Lieber Code, and the establishment and early activities of the ICRC, before surveying the development of the law of armed conflict from the late 19th century until the Second World War. The chapter then considers the development of the civil war regime between 1949 and 1998 and subsequently, highlighting the key elements of the regime and setting these in the broader international legal context, including the development of international human rights law and international criminal law.

Negotiating Civil War has sought to provide a rounded, nuanced, portrait of the emergence of the Civil War Regime, leveraging the explanatory capacity of carefully selected theoretical propositions derived from mainstream IR research traditions. The following discussion assesses the extent to which this endeavour has been successful, and identifies wider lessons that can be derived. The first section sets out the key findings from the case studies and the examination overall. The second section sets Negotiating Civil War in the context of related bodies of research and considers scholarly and practical implications. The final section draws the volume to a close.

The introduction sets out the empirical puzzle at the heart of the study, contrasting the historical regulation of international armed conflict with the absence of regulation in respect of non-international armed conflict. This is followed by an overview of Negotiating Civil War and the book’s key findings. A closing discussion sets Negotiating Civil War in the context of broader, related literature.

Chapter 5 examines the negotiation of paragraphs (c) and (e) of Article 8(2) of the Rome Statute of the International Criminal Court. The chapter provides a brief historical background before setting out the key turning points in the negotiation of these clauses. As in preceding chapters, the negotiations are considered from the perspectives of key actors: in this case, the ‘Like-Minded Group’, the P5 (particularly the USA, UK and France), the Non-Aligned Movement, and prominent civil society participants (e.g. Amnesty International, Human Rights Watch, FIDH). The chapter underlines that while like-minded and NGO moral authority and technical expertise played a large part in persuading wavering delegations, the internal armed conflict provisions closely reflect the preferences of the Western P3 as well as the post-Cold War liberal Zeitgeist.