Laws of Yesterday’s Wars Symposium – Conclusion

Although a much wider analysis is possible (and is done elsewhere) I thought it important to highlight the uniting factor that has emerged so far in the various posts in Articles of War based on three volumes of the Laws of Yesterday’s Wars series. This final post does so with the qualification that another four volumes of the series are currently being drafted and edited, and as such the findings may develop and become more nuanced over time.

What is clear so far from the research is that Dr. Pictet’s challenge to distil the fundamental principles of the laws of war is indeed possible and occurring through the series. It is against this backdrop that I propose the unalienable, fundamental custom: that wars have laws.

The Fundamental Custom

There is clear historical folly in the “straight line history of eternal progression” for the laws of war, where a Great White Man (Grotius, Vitoria, Augustine) discovered international law and it developed progressively into the modern era. For many parts of European law, this is without a doubt correct. Read, for instance, the chapters spread across The Laws of Yesterday’s Wars on the progression of Roman, Medieval, and Renaissance laws of war and how they shaped the framework of the American Civil War. This “straight line” can be extrapolated, and explains many of the findings in the International Committee of the Red Cross’s (ICRC) study on customary international humanitarian law (IHL). Robert War championed the risk of this methodology in 1795, when he wrote:

We expected too much when we contended for the universality of the duties laid down by the Codes of the Laws of Nations . . . however desirable such universality might be . . . what is commonly called the Law of Nations . . . is not the Law of all Nations but only of particular classes of them; and thus there may be a different Law of Nations for different parts of the globe.

Ensuring respect for IHL—which common Article 1 commands and the ICRC urges—does not mean we are exempt from critical judgment. Universality does not mean unanimity. It is too far to claim, as some have, that,

the foundations of international humanitarian law, or at least their equivalents, are thus found in the major cultural systems on our planet: the right to life, the right to physical integrity, the prohibition on slavery, and the right to fair legal treatment.

It is hard to argue that Mongol culture—one of the largest Empires in history—somehow guaranteed the right to life, physical integrity, freedom of body and fair legal treatment. It was characterised by pillaging, summary executions, denial of quarter, sexual violence, hostage taking, and environmental destruction. Yet it did not exist in a legal desert. Underpinning all Mongol conduct was a fundamental custom: the great principle (yeke).

The ICRC’s Roots of Restraint contended that the law can play a crucial standard-setting role, but “that encouraging individuals to internalise the values the law represents through socialization is a more durable way of promoting restraint.” A continuous cycle of violations of the law appears less likely if the legal norms of IHL are central to an individual’s identity and honour. Against this background, identifying the historical and contemporary reference points for values equivalent to IHL can increase the influence of arguments for restraint.

Across nearly every culture, the fundamental and foundational custom of keeping one’s word is apparent. It is the “pure substance” Dr. Pictet was hinting at, the heritage of all mankind. Breaking rules resulted in payback within First Nation Australians; the concept of legitimacy and justice—junkarti (“straight” in Lardil); dalgi giban(“to make even” in Wiradyuri); makaratta (“coming together after a struggle” in Yolngu); yorrp-ba (“to fall out and rejoin” in Wagiman); or warnmala (“to seek balance” in Pitjantjatjara). Payback provided an exact, tit-for-tat reciprocity for past actions, ensuring equity and helping curb the violence and brutality of warfare.

Within New Zealand, the Treaty of Waitangi provided a clear legal framework for humane treatment. The repeated breaches of it during the Maori Wars was recognized both at the time, and in subsequent formal apologies from the Crown, as being “unwarranted” and “unjust.” Maintaining honour upon capture was so fundamental to Mexican warriors that upon their release by Spanish conquistadors, the maltin (captured foes)“indignantly rejected the offer of release and demanded to be sacrificed.” For those Scandinavian raiders known to history as Vikings, trickery and deception added to, rather than subtracted from, honour. Yet honour still was core to warfare. The poem Hávamál, containing Odin’s wisdom, demonstrates this:

Cattle die, | and kinsmen die,

And so one dies one’s self;

But a noble name | will never die,

If good renown one gets.

Cattle die, | and kinsmen die,

And so one dies one’s self;

One thing now | that never dies,

The fame of a dead man’s deeds.

Good renown was fundamental to warfare in the Mahābhārata, and as Zuzana notes, “A just war, dharmayuddha, is more about the means of warfare than about the causes of a battle. The most important underlying rule of ancient Indian warfare is the idea of fairness.”

So too did Carthaginian and Hellenic custom elevate honor in warfare. Timē is one manifestation of the fundamental custom. The idea signals a need to retain a certain reputation – for effectiveness, ruthlessness, vengefulness but above all trustworthiness. Timē is the idea of credibility; it is the act of generating a reputation, through a strong record, of being credible. For the Romans, it is the concept of fides publica; the breach of which was the grievous crime that Julius Caesar was to be recalled and punished for. Qur’anic revelations ensure that conduct in war is not unlimited; it must be fought with credibility and to protect al-mustaḍʿafīn. Divine approval, and operating within a framework of rules, is fundamental to those of the Book.

Although endemic within the North American continent, Professor Wayne Lee highlights that the blood revenge system (similar to First Nations Australians) curbed violence. This was done through structure (such as the divide between peace and war chiefs) as well as spiritual means. Remaining spiritually pure required abiding by the great principle of honour, and acted as a check against sexual excesses. Bushido—the all-encompassing code of conduct for a specific class of warriors in Japan—sought to induce compliance with the great principle across all areas of life. Wider research into African customs of warfare has focused on the principle of Ubuntu – a polylinguistic term that can be roughly translated as “the belief in a universal bond of sharing that connects all humanity,” underlying African traditions.

Within the Highlands of Papua New Guinea, proverbs governing conflict highlight the underlying humanity laws of war sought to achieve, “you live long if you plan the death of a pig, but not if you plan the death of a man.” Humans are recognised for the thing that makes them special – their humanity. This is in stark contrast to the Abrahamic concept of de-humanising one’s foe. As Jonathan Shay, classicist and combat trauma psychologist notes,

Twentieth-century nationalism has taken over the biblical tendency to measure loyalty by how vehemently one dehumanizes the enemy. When American soldiers and their commanders in Vietnam debased the enemy, they echoed very ancient proofs of their faith in God and of their own religious merit . . . . The Judeo-Christian (and Islamic) world view has triumphed . . . that dishonouring the enemy now seems natural, virtuous, patriotic, pious.

The Sasanian Artēštārestān highlighted that “the extermination of two-legged wolves is more necessary than that of four-legged wolves.” So too did Chenggis’ anda, Jamugha compare his breach of faith as that of an anima:

What good would I be as your ally?

I’d only invade your thoughts,

Like a louse on your collar,

Like a thorn under your shirt

I went wrong when I strove to be a better man than my anda,

It is I whose reached the end of his days.

Honour underpinned the ankam, and respect for the twelve-year cycle brought a unique form of conflict-resolution along the Malabar coast. Dr Angeline Lewis outlined expertly the concept of adat, the importance of which cannot be understanded. The Malay idiom “biar mati anak, jangan mati adat” (better your children die than your adat) shows the extent to which adat is important to Malay people. To this end, Rule 144 of the ICRC Customary International Humanitarian Law study seems clearly based in custom,

States may not encourage violations of international humanitarian law by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of international humanitarian law.

Concluding Thoughts

Such a customary principle is based upon common Article 1. Modern international humanitarian law demonstrates a constant, consistent desire to regulate warfare in increasingly humane ways. There has been a fusion of the laws of Geneva (to protect the wounded) and the laws of the Hague (to regulate weapons). History shows, both through individual case studies and clashes of cultures, that rules will always be created to regulate warfare. Fundamental to this is the idea of pacta sunt servanda: agreements must be kept. Yet as Stanley Baldwin captured, these conventions will often break down in the test of warfare:

If a man has a potential weapon and has his back to the wall and is going to be killed, he will use that weapon whatever it is and whatever undertaking he has given about it. Experience has shown us that the stern test of war will break down all conventions.

This philosophical underpinning is core to the idea of sharp war, discussed in volume 2 of the Laws of Yesterday’s Wars series. Yet what the literature demonstrates is that the existence of rules seeking to regulate warfare is a resilient concept. Whilst intended to challenge the laws of war, this work finds itself legitimising their existence through a historical lens; indeed, the very existence of rules was core to the concept of warfare. It supports the final proposition then that man indeed “is not a ‘wolf to his fellow men’—homo homini lupus—as the comedian [Plautus] says, but a fellow.”

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Samuel C. Duckett White is a Senior Lecturer at the University of Adelaide; as well as an Adjunct Associate Professor at the University of New England and Visiting Fellow at the Australian Defence Force Academy.

Photo credit: U.S. Army, Sgt. Cody Nelson