David Galula’s (1964) Counterinsurgency Warfare: Theory and Practice likely shaped current American counterinsurgency doctrine more than any other historical text. A French national of North African birth, he wrote his core works in English, for American military readers. While sharing many strategies and tactics with Anglophone theorists from the period, his manual adopted a strikingly unified process narrative for the step-by-step defeat of insurgency. His work was informed by decolonization in East Asia and North Africa as well as a deep anticommunism. More than anything else—and largely to the exclusion of past French doctrine—he was informed by reading Mao and by field observation of Maoist guerrillas in China. Galula’s strategy was to run Maoist guerrilla warfare backward. In adopting this process story, he tacitly internalized the logic of Mao’s politics as such. He produced an apparently hyper-coherent doctrine that was in practice divided against itself in multiple ways. This account acquired enormous influence, intermittently shaping Anglo-American counterinsurgency for decades.

This chapter moves away from the judicial behaviour of human rights systems and explores how other factors may influence convergence and fragmentation. First, it shows the reader how non-governmental organisations can be determinant in fostering convergence or triggering fragmentation through different activities. Thy include direct intervention in litigation, lobbying or through third party interventions, that is, amicus curiae. Second, it analyses all the instances where fragmentation does not arise simply because the case does not reach the merits stage. The increasing habit of regional court to encourage applicants to resort to friendly settlements could significantly limit the instances of fragmentation.

This chapter offers an assessment of judicial fragmentation in international human rights law. The first part of the chapter presents a comparative analysis of the case-law of the three regional systems and the UN Human Rights Committee on rights that are the highly susceptible to trigger fragmentation, either for the relevance of religious, cultural and political concerns or for the vagueness of some terms in the norms’ provisions that could possibly allow very different interpretations. As this analysis shows a substantial convergence or absence of fragmentation, the second part of the chapter focuses on the detailed analysis of the few cases of judicial fragmentation identified, exploring their features in depth. They include case-law on freedom to wear religious attire, indigenous rights and the right to marry for same-sex couples.

This chapter introduces a cutting-edge study on the composition of the bodies under analysis to assess how this may influence their adjudication. An empirical quantitative study on the judges’ and commissioners’ background is combined with an analysis of their ‘judicial behaviour’ through their separate opinions. This demonstrates that judicial convergence could be partly due to the personal identity and background of those individuals called to interpret the law and adjudicate the cases. In particular, this chapter shows signs of a possible ‘Europeanisation’ of the African and Inter-American judges, which could encourage the African and Inter-American Court to converge with the European case-law. The chapter also discusses the role played by the secretariats in influencing the adjudication of human rights regional and international bodies. Drawing on interviews with members of the registries of the three regional courts, it concluded that specific agendas, priorities and internal organisations may encourage judicial convergence.

This book explored the issue of judicial convergence and fragmentation in international human rights law, focusing on the case-law of the African Court and Commission on Human and People’s Rights, the European Court of Human Rights, the Inter-American Court of Human Rights and the UN Human Rights Committee.

This chapter treats the early modern roots counterrevolutionary war, in Johann Ewald’s (1785) Treatise on Partisan War and (1790) Treatise on the Duties of Light Troops. A Hessian (German) mercenary officer, Ewald served in of one of the earliest and most consequential modern counter-insurrectionary conflicts: the American Revolutionary War. I locate Ewald’s ideas in the intellectual and political context of early modern, absolutist central Europe. He believed in military honor and duty, linked to premodern socio-political hierarchies. In America, he confronted modern ideological warfare, backed by a mobilized populace, for the first time. Gradually, he came to empathize with his opponents and distain the English officers he served. In his diaries, he advocated emulating insurgent tactics—transposing the tools of revolutionary warfare into the military-ideological project of counterrevolution. The two manuals he wrote on returning to Europe alloyed his European and American experiences. They resonated well into the nineteenth century, influencing Clausewitz and informing British conduct of the Peninsular War.

This chapter introduces and discusses the approach of each body to deference and subsidiarity, and assesses how the differences may affect convergence and fragmentation. From the margin of appreciation (MoA), typical of the European Court, to the conventionality control (CC) of the Inter-American Court, the chapter investigates all the different shades of subsidiarity and deference and put them in a comparative perspective. Moreover, through specific examples, this chapter shows how different approaches may trigger fragmentation (such as in the headscarf cases) and how convergence on the level of deference and subsidiarity may, on the contrary, foster convergence (such as in defamation cases).

This chapter briefly surveys the intellectual history of modern, western counterinsurgency theory, as conservative, high modernist utopianism. It sets out concise and synoptic evidence for the argument, which serves as context for the later case chapters. I focus on counterinsurgency manuals—applied theoretical texts written by counterinsurgency practitioners, aiming to shape battlefield and political conduct. Manuals link theory and practice, connecting idealized military and political theory to the history of on-the-ground conduct. My approach is primarily contextualist. Proceeding chronologically, I draw connections and contrasts between canonical manuals, from the early modern period to the present. While small wars or counterinsurgency manuals were conservative from early on, high modernism and utopianism emerged only gradually and incidentally, taking multiple forms. I show how ideas cross-pollinated across texts, accumulating scattershot political idealizations and military practices alike. In so doing, I link micro-level individual intellectual change with larger historical processes, at the global level.

This chapter discusses the interpretation and application of the complex notions of necessity and proportionality, a cornerstone for any human rights adjudication and rights balancing exercise. Through an original and comprehensive analysis of the practice of the human rights bodies, this chapter shows the reader how these bodies managed to reach convergence on the interpretation and application of necessity and proportionality, despite all the impending factors.

C. E. Callwell’s (1896; 1899; 1906) Small Wars: Their Principles and Practice was perhaps the most influential British Imperial irregular warfare manual of its time. Many existing accounts treat Callwell and other European colonial militarists as primitive—originals from which to explain later theorists’ descent and deviation. I show how he arrived at his account. Previous theorists, like Ewald, drew military lessons from early modern European irregular war, including targeted use of force by stealthy and mobile “light troops.” In contrast, Callwell advocated arbitrary and overwhelming violence, against combatants and civilians alike. I locate Callwell’s thinking at the end of the intellectual and political long nineteenth century. He exemplified a distinctively reactionary strand of British imperial thinking, imagining empire as permanent. His historical knowledge and field experience were encyclopedic. He linked a reactionary-utopian colonial nostalgia with systemic and racist high modernist violence. In the South African War (1899-1902), he helped deploy these practices against white Afrikaner colonists. His manual remained influential into the early twentieth century.

Considering that judicial fragmentation and convergence concern the interpretation of human rights norms and provisions, this chapter discusses how the human rights bodies under analysis engage with the theory of treaty interpretation. In particular, the chapter illustrates how the human rights systems are engaging differently with judicial dialogue. Through a detailed analysis of the practice of each body, this chapter shows how judicial dialogue led to convergence and how the lack of it led to fragmentation. However, the chapter also highlights situations where despite judicial dialogue fragmentation still arose, discussing the duality and complexity of this instrument for the maintenance of convergence.