Legal Experimentation in International Institutional Law? From the Spanish Civil War and the ‘London Committee’ to Gaza and the ‘Board of Peace’

Much has been said on Trump’s ‘Board of Peace’ (the Board) and much remains to be seen. While the identity of the Board as an international organisation has been discussed (here), other contributions have focused on the corporate dimension of the organisation (here, here and here) or on its role as regards the future of Gaza and the Palestinians (here and here). Comparisons have also been made between UNSC Resolution 2803, which gave the Board authority over Gaza, and other past UNSC resolutions ‘that established or legitimised international territorial administrations.’ What seems to emerge from this is that the establishment of a manifestly illegal regime of occupation and annexation supervised by the Board (see here and here) constitutes a novelty in that the US only ‘remains engaged with some international rules and institutions … insofar as it can mobilise them to authorise its own, parallel structures.’

Another precedent which might help to shed light on the current plight of the post-WWII liberal international order is the past experience of the International Committee for the Application of the Agreement Regarding Non-Intervention in Spain (the London Committee) between 1936 and 1939. The London Committee became the face of the interwar international legal order. But until very recently, the history of the London Committee, and the so-called non-invention policy adopted by European Powers during the Spanish Civil War, only allowed broad comparisons with current trends which have matched the inaction and cynicism of that time. More concrete are the noteworthy similarities that the Board and the London Committee share: an unusual method of creation; an abandonment of pre-existing multilateral legal mechanisms; disregard for and exclusion of the most concerned communities; and a resort to legal ‘experimentation’ by powerful actors.

These striking similitudes point towards the Board as another example of (certain) great powers sailing away from established international institutions in order to confiscate multilateralism and ‘peace’. But they also seem to be historical symptoms of dominant powers sabotaging the very legitimacy of the power they were enjoying within their respective international legal orders in so blatantly deciding to favour reactionary legal experimentation in lieu of more emancipatory (or at least less harmful) existing international legal mechanisms. Therefore, while the Board is symptomatic of the US’s increasing unwillingness to create consensus for its power through established international mechanisms and the vocabulary of international law, the London Committee offered the image of France and Britain as unwilling to commit even discursively to the League of Nations collective security paradigm. While the result was to prove tragic for the interwar legal order and with it the international dominance of Britain and France, the Board might be a symptom of the decline of the ‘institutional form through which the US was once able to universalize its interests as the general interests of the world.’

Experimentation and departure from existing international organisations and mechanisms

While the Board has quickly sought to be more than an ad-hoc organisation, both the London Committee and the Board emerged as organisations meant to answer particular crises: the Spanish Civil War and the (yet to come) aftermath of Gaza’s genocide, respectively. Both also emerged because some powerful actors believed that these crises required new answers and new institutional frameworks. In the case of the Board, the contours of Gaza’s future and the peacebuilding mechanisms remain unclear. However, one of the central aspects of the Board seems to reside in a ‘business strategy on new cities construction’ and a ‘real estate plan’ in the form of the development of a new corporate approach to peacebuilding in the international legal order.

The same spirit of ‘experimentation’ surrounded the creation of the London Committee. This latter was in fact the institutional form that took the misleadingly called Non-Intervention Agreement (NIA), a British-French initiative signed by most European states during the Spanish Civil War, and which became dominated by Great Britain, France, Italy, Germany, and the Soviet Union. Materialised through states’ declarations instead of an international treaty, the NIA, very much like Trump’s 20-point plan for Gaza, proposed to depart from traditional international legal answers to conflicts. In the name of peace, narrowly conceived as an absence of overt conflict between major powers, the NIA proposed to ‘localise’ the Spanish Civil War with the ostensible objective of preventing the conflict from spreading beyond Spain. Traditional international legal answers, such as support to established governments facing insurrection, the system of recognition of belligerency, or simple neutrality, were thus replaced by a so-called non-intervention policy, which, in reality, was deeply interventionist.

The official rationale of the NIA and the London Committee was to prevent major European Powers from intervening in favour of either side (e.g., the Nationalists for Germany and Italy, the Republicans for France and the Soviet Union). To do so, the London Committee proceeded in putting the Republicans (the democratically elected government and its supporters) and fascist-backed Nationalists on the same ‘a-legal’ footing and as unqualified to receive support, military aid and, crucially, not entitled to exert belligerent rights, especially to the high sea. Various mechanisms of embargo, territorial and maritime borders control, ban on foreign volunteers, or collective non-recognition of belligerency became the newly developed mechanisms of that new international machinery. The most tangible outcome of the various meetings of the London Committee was the adoption of an Observation Scheme (here pp. 19-20) which, among many things, provided for an International Board for Non-Intervention, a system of ‘observing officers’ to be embarked in ships to the destination of Spanish ports, the observation of the Franco-Spanish and the Gibraltar-Spanish borders by an ‘international staff’, and a system of naval patrol entrusted to Great Britain, France, Germany, and Italy. Yet more well-known than this Observation Scheme is probably the cynical (non-)implementation of the agreement from the outset that made the NIA and the London Committee ‘an institutionalised and mutually accepted farce.’ It suffices to mention that despite the well-known military involvement of Germany and Italy alongside the Nationalists, the Observation Scheme nevertheless allocated the control of the Spanish Mediterranean coast to Germany and Italy, thus allowing them ‘both to intercept Russian supplies while ensuring free rein for their own attacks’ against the Republicans (Preston, 2016).

In addition to the cynical preponderance given to states respectively responsible for the dramatic situation in Gaza and in Spain, the creation of the Board and the London Committee had both been justified by the need to experiment with something new. The Board’s charter specifically elicits ‘the courage to depart from approaches and institutions that have too often failed’, while the NIA and the London Committee were repeatedly portrayed by French PM Léon Blum as a necessary deviation from traditional international law to keep a generalised war at bay—a move to ensure entente with the British and to curb the far right as well as the Communist Party who recalled the importance of the League (here pp. 26-28). The corollary of these two claims about the need for something new has been to implicitly consider pre-existing international organisations and norms as unfit for the challenge. Yet in the two cases this departure from pre-existing international organisations was endorsed, legitimised, and legalised by the very same organisations. Thus, in its Resolution 2803, the UNSC endorsed and annexed Trump’s 20-point plan and empowered the Board with international legal authority, very much like the Council of the League of Nation when it referred the question of the Spanish Civil War to the London Committee instead of engaging its own mechanisms of collective security (95^th session of the Council, 1937). In the two situations, major international actors, due to their pre-eminence in international organisations, rendered the UN and League of Nations insignificant.

The exclusion of concerned people

At this point, the comparison between the Board and the London Committee leads us to one of the most important similarities between the two organisations, that is, the exclusion and disregard for the concerned communities. As already discussed, Resolution 2803 makes ‘no meaningful reference to Palestinian participation in decision-making’ and does not portray Palestinians ‘as being … political agents or members of a body politic and nation-state in the making’. Self-determination was also left out of the repertoire of the NIA and the London Committee. By design, the Spanish Republican Government and Nationalist insurgents were excluded from participating in the implementation of the NIA and were both denied belligerent status. As noted by Nathaniel Berman, Spain was ‘not fitting neatly into either side of the dividing line between civilization and its others’ during the interwar period. This sort of prejudice justifying disregard for the self-determination and aspirations of specific communities and their exclusion from the mechanisms deciding their own fate is something which the Palestinians have never ceased to experience—and to which they have been increasingly subjected to through a growing dehumanising rhetoric since October 2023.

Yet Palestinians and the State of Palestine have invested in existing international institutions and have found that these recognise their right to self-determination and to statehood, as well as the unlawfulness of Israeli occupation and colonisation, most notably restated in the ICJ’s Advisory Opinion of July 2024. Spain looked to the League of Nations with the same hope that the international legal order would not look on as Germany and Italy continued their aggression against Spain in support of Franco. Yet experimentation eventually came in the way, making the international legal order more tolerant, or even supportive, towards aggression, occupation, or colonisation.

Reactionary legal experimentation and ‘peace’

The Board and the London Committee eventually highlight a similar confiscation of multilateralism by one or more powerful states with their own conception of peace, which, in the two cases, was not meant to benefit the concerned communities. While it remains to be seen what the ‘peace’ as conceived in Trump’s 20-point plan is really about, the one advocated by the major European powers during the Spanish Civil War was simple. It was not peace for the Spanish, but peace among the major Powers, an imperative which could easily tolerate mass violence, as long as it did not spread out of Spain.

In the two situations, the decision to create a new international organ concurrent to existing international institutions had not been commanded by a radically new situation which necessitated new mechanisms. If at all, the inaction of the UNSC regarding Gaza and that of the Council of the League of Nations during the Spanish Civil War was due to the lack of will of those states which held the most power within these institutions (the US today, Great Britain and France then). Such power was ultimately mobilised to refer the situation to new organs more tightly controlled by dominant states and less subjected to accountability mechanisms. But this behaviour from dominant states eventually erodes the legitimacy of their power on the international stage and their ability to manufacture consensus.

What is different?

Many genuine differences still persist between the Board and the London Committee. Even when the London Committee reached its cynical and hypocritical climax–especially in turning a blind eye to German and Italian military support to Franco–the organisation still projected the image of an impartial institution bound by law and procedures where legal technicalities were discussed. The structure of the Board with Trump as a Chairman for life ‘having veto over all aspects of the [Board]’s decision-making,’ the $1 billion buy-in for a permanent seat, or the recent declaration by US State Secretary Marco Rubio that the US had decided to turn the Board from an international organisation into an international nongovernmental organisation, thus deviating from the Board’s own charter, are only a few examples showing that no genuine effort is made to hide the fact that the Board ‘serves primarily as a venue through which to purchase influence over Trump.’

In the end, the Board participates in a shift in US imperialism, not because the US suddenly decided to disregard large sections of the international legal order, but because the US increasingly does so without developing the legal justifications they used to mobilise, even in response to their most blatant violations of international law (e.g., the Iraq invasion).  The ‘nakedly corrupt transactionalism’ in which the Board seems to participate might well be a perfectly coherent by-product of what Michel Foucault called ‘grotesque sovereignty’: a form of power which is exercised and justified through what ‘is manifestly, explicitly, and voluntarily discredited as odious, infamous, or ridiculous’ (Foucault, 1975). For all its limitations, however, the international legal order had more emancipatory and desirable mechanisms to offer to the Palestinians and the Spanish than a vulgar display of raw power with the Board and its more euphemistic (and deceptive) version of the London Committee.

Image credit: president.az CC BY 4.0