Symposium “Laws of Yesterday’s Wars” – Introduction

Last year, War articles organized a symposium on volumes one and two of the Laws of yesterday’s wars Book series by Brill Nijhoff. The symposium included contributions dealing with the laws of war in Islamic, Native American, East African, Australian and ancient Indian societies as well as the American Civil War.

Volume three, The laws of yesterday’s wars: From the highlands of Papua New Guinea to the island of Maltacontinues the global exploration of historical constraints on war in the book series. It presents inter-communal violence in the highlands of Papua New Guinea, the “domestic” peacekeeping operations of an ever-expanding Mongol empire, a legal synthesis of Cossack regulatory traditions, the Kanun Precepts that complemented his religious rules, the Keralan tradition of arrived (Duel) by trained professionals, the headhunting practices of the Iban, the traditional South Sudanese martial law and the uncodified Maltese martial law.

With this article we continue the War articles Symposium presenting selected papers from volume three. Each paper summarizes the regulatory history and traditions of a particular culture and examines its system of warfare before addressing the key question of the book series: “What was this culture’s specific goal in warfare?” Papers then briefly describe what their respective cultures prohibited in war.

All of these traditions involve the difficult task of imposing one’s will on the enemy. All also demonstrate the continuation of politics by other means that capture war. And all fall within our scope of the laws of war, even if they do not quite represent war in the Roman sense or law in the Eurocentric sense.

Concepts of war

Ethnocentrism and chronology aside, Rome serves as a useful starting point for the legal genealogy of war. It is not just that the laws of war have used a Latin etymology (see, e.g. “nice”, “only for Bellum”). The binary international legal paradigm of war and peace itself has Roman roots. Augustus Caesar boasted three times during his reign that he had closed the doors of the temple of Janus, the two-faced god. Closing the doors signaled that there were no declared wars against recognized enemies within the empire. The concept of declared war then evolved into just war theory during the Middle Ages and Renaissance, before later loosely shaping modern notions of the law of armed conflict. In his Articles of AssociationJean-Jacques Rousseau perhaps offers the best example of this school of thought:

War is therefore not a relationship between people, but between states, and individuals are enemies only by chance, not as people, not even as citizens, but as soldiers; not as members of their country, but as its defenders. After all, every state can only have other states as enemies, not people … (p. 7-8).

Rousseau completely ignores the idea of ​​private war, as practiced in Japan or medieval Europe. Nevertheless, Lassa Oppenheim supported this Eurocentric approach and further narrowed it down to the question of which organ of the state was waging war.

War is a dispute between two or more states by their armed forceswith the aim of overpowering each other and imposing the desired conditions on the winner (p. 56).

But the limitations of this concept of war are clear to any informed reader. Wars have largely been fought without armed forces and certainly exist outside the framework of a state. The nomadic culture of the Mongols, for example, had no warrior class; all were capable and authorized to fight. Over millennia, a variety of cultures and nation-states have been involved in armed conflicts that did not reach the limits of European wars, including wars for control of resources in pre-colonial Australia, the silent wars of ancient India, the flower wars of the Mexica, the private wars of Japan, or the bloody wars of the Native Americans in the northeast.

Both Laws of yesterday’s wars The book series and the accompanying symposium aim to clarify the limited character of previous concepts of war and at the same time to demonstrate the legal advantages that result from adopting a more comprehensive concept of war.

How international?

The book series and this symposium continue to address the question: “How international is international humanitarian law?” Dr. Jean Pictet, who discussed the universality of the laws of war, noted:

Humanitarian principles are common to all human communities, wherever they are. If you bring together different customs, ethics and philosophies for comparison and then break them down, eliminating their peculiarities and taking out only the general, you are left with a pure substance which is the heritage of all humanity.

In a concluding paper to this symposium, one of us will review all three volumes of the book series to propose selected basic, common principles of the law of war. In addition, we hope that the symposium and readers’ subsequent reading of the volumes it contains will demonstrate that universal principles are best understood when they are explained or promoted with local context in mind.

The report of the International Committee of the Red Cross also comes to this conclusion. Roots of restraint in warpublished in 2018. This study concludes that the behavior of armed groups of all kinds is not influenced as well by focusing exclusively on the law as by a combination of the law and the values ​​underlying it.

Final thoughts

From examining the war conventions of a wide range of cultures over millennia, we see promise in an openly structured law of war that allows room for local customs and norms. In an era of increasingly elaborate scholarly refinements and legal contributions, these studies show that the law of war may not be best served by becoming ever more finely crafted in its codifications. Rather, the greater potential for breaking the cycle of senseless violations and creating opportunities for unification rather than further dividing the warring parties may lie in finding minimal commonalities that allow for a degree of wiggle room in the interpretive gaps.

Our studies show that the codes of honor that were intended to mitigate war around the world were not universal in content or approach. If the “pure substance” is to be found and logically applied, one must begin to recognize the strength and diversity of the laws of war – whether yesterday, today, or tomorrow.

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Samuel C. Duckett White is a lecturer at the University of Adelaide and Associate Professor at the University of New England and Visiting lecturer at the Australian Defence Force Academy.

Sean Watts is a professor in the Department of Law at the United States Military Academy, co-director of the Lieber Institute for Law and Land Warfare at West Point, and co-editor-in-chief of War articles.

Photo credit: Pexels, Brill Nijhoff