Laws of Yesterday’s Wars Symposium – Introduction
There is a mythology, easily rebuffed, that the laws of war started with the Lieber Code. While General Orders No. 100 guided and shaped the modern law of armed conflict (LOAC) or international humanitarian law (IHL), the regulation and legal mitigation of the horrors of war are not strictly European phenomena.
A series with Brill Nijhoff, that is continuing to expand with additional volumes, highlights the wider customs and norms that regulate warfare to offer alternate models of conflict regulation and resolution. The series is particularly relevant as modern LOAC is frequently perceived as fundamentally European, widely based on medieval laws of chivalry which regulated the conduct of knights against knights. This so-called “original sin” of the law of war continues to afflict it today.
The book series we will highlight in this symposium poses and attempts to answer the question: how international is international humanitarian law? For his part, Dr. Jean Pictet, addressed the universality of IHL as follows,
…humanitarian principles are common to all human communities wherever they may be. When different customs, ethics and philosophies are gathered for comparison, and when they are melted down, their particularities eliminated and only what is general extracted, one is left with a pure substance which is the heritage of all mankind. (Pictet, p. 3-4).
Yet how can we go about systematically questioning, analyzing, and applying this “pure substance?” The Laws of Yesterday’s Wars attempts, through a comparative methodology, to allow different cultural restrictions to shine through their particularities rather than to eliminate them.
Each post in this symposium summarizes a chapter that explores the regulatory history of a particular culture, examining its system of governance before addressing the key question: what was their specific goal in warfare? The posts then summarize what each respective chapter determines was prohibited by that culture. Not one is the same – Indigenous Australian warfare (as it related to the capture of women for marriage, and the protection of sacred land from sacrilege) is distinct from Aztec warfare (which was concerned with capturing individuals for sacrifice). The concept of dharma and its discussion in the Mahabarata demonstrate is of course separate to the rules and customs of bushido. Although overlapping in geography, the codes of Eastern Native Americans differ in significant respects from that developed for Union forces in the American Civil War. Meanwhile, approaches toward the treatment of captured women – being family members in East African culture – is in many ways similar to the wider approach under Islamic law of a universal brotherhood.
Specialists in the history of one society may tend to dismiss such comparative work as superficial. And those who work from comparative perspectives may tend to dismiss the study of single societies as hopelessly myopic and of limited value in the study of other societies. We, however, are convinced of the value of in-depth analysis of the laws of war of a single culture. Those individual studies provide an indispensable database. But there are additional conclusions that can be drawn from comparisons among many societies that cannot be drawn from the detailed study of just one culture. For example, understanding the laws of war of Indigenous Australians requires not only accurate knowledge of Indigenous warfare and norms. It can be applied in an era of global competition where decisive victories on the battlefield are politically costly to pursue. Those further insights require the comparative method.
Further, we hope the symposium and readers’ subsequent journeys into the volumes it covers reveal that universal principles can be best understood when explained or promoted taking into consideration the local context. This was one of the major findings of the International Committee of the Red Cross report on the “Roots of Restraint in War,” published in 2018. That study suggested that across all types of armed groups an exclusive focus on the law is not as effective at influencing behaviour as a combination of the law and the values that underpin it.
The law gains greater traction through links to local norms. A continuous cycle of violations of the law appears less likely if the legal norms of LOAC are central to an individual’s identity and honour. These codes of honour that aim to mitigate warfare are not, shockingly, European across the globe. If the “pure substance” is to be found and logically applied, it must start to recognise the strength and diversity of the laws of war – be they yesterday, today, or tomorrow.
Samuel White MPHA is the inaugural Cybersecurity Post-Doctoral Researcher and RUMLAE Associate Researcher at the University of Adelaide, as well as an Adjunct Senior Research Fellow at the University of New England.
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 Articles of War.
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