Laws of Yesterday’s Wars Symposium – Introduction

Last year, Articles of War hosted a symposium highlighting volumes one and two of the Laws of Yesterday’s Wars book series published by Brill Nijhoff. The symposium included posts that studied the laws of war of Islamic, Native American, East African, Indigenous Australian, Ancient Indian societies and the United States’ civil war.

Volume three, The Laws of Yesterday’s Wars: From the Highlands of Papua New Guinea to the Island of Malta, continues the book series’ global exploration of historical restraints in war. It introduces the inter-communal violence of Highland Papua New Guinea, the “domestic” peacekeeping operations of an ever-expanded Mongol Empire, a legal synthesis of Cossack regulatory traditions, the Ottoman Empire’s kanun regulations which complemented its religious rules, the Keralite tradition of ankam (duel) by trained professionals, the head-hunting practices of the Iban, the customary South Sudanese code of warfare, and the uncodified Maltese laws of war.

With this post we continue the Articles of War symposium, showcasing select work from volume three. Each post will summarize the regulatory history and traditions of a particular culture, examining its system of war governance before addressing the book series’ key question: “What was that culture’s specific goal in warfare?” The posts then briefly relate what their respective cultures prohibited in war.

All of these traditions involve the fraught task of imposing one’s will on an enemy. All also exhibit the continuation of politics by other means that captures war. And all fall under our ambit of the laws of war, even if they do not fully constitute war in the Roman sense or law in its Eurocentric meaning.

Concepts of War

Ethnocentrism and chronologies aside, Rome serves as a helpful starting point for war’s legal genealogy. It is not just that the laws of war have used a Latin etymology (see e.g. “jus in bello,” “jus ad bellum”). The binary international legal paradigm of war and peace itself has Roman foundations. Augustus Caesar boasted on three occasions during his reign that he closed the doors of the Temple of Janus, God of Two Faces. 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 in the Medieval and Renaissance periods before later loosely shaping modern conceptions of the law of armed conflict. In his Social Contract, Jean-Jacques Rousseau perhaps offers the best example of this school of thought:

War then is a relation, not between man and man, but between State and State, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers; not as members of their country, but as its defenders. Finally, each State can have for enemies only other States, and not men . . . (p. 7-8).

Rousseau sweepingly omits the idea of private war as practiced either within Japan, or Medieval Europe. Still, Lassa Oppenheim endorsed and narrowed this Eurocentric approach further with respect to which organ of the State conducted war,

War is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions as the victor pleases (p. 56).

But the limits of this conception of war are plain to any informed reader. War has been widely fought exclusive of armed forces and surely exists outside the framework of a State. For instance, the Mongol nomadic culture knew no notion of a warrior class; all were able and empowered to fight. Through millennia, a variety of cultures and nation States has engaged in armed conflict that did not meet the thresholds of European war, including wars for resource control in pre-colonial Australia, the silent wars of ancient India, the Flowery Wars of the Mexica, the private warfare of Japan, or the blood wars of North-Eastern Native Americans.

Both the Laws of Yesterday’s Wars book series and this accompanying symposium hope to illustrate the cramped character of preceding conceptions of war as well as the legal advantages of adopting a broader war concept.

How International?

The book series and this symposium also continue to address the question, “How international is international humanitarian law?” Dr. Jean Pictet, addressing the universality of the law of war, observed,

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.

In a concluding post to this symposium, one of us will canvas all three volumes of the book series to suggest select fundamental, customary principles of the laws of war. 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 local context.

This is a finding shared by the International Committee of the Red Cross report, 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.

Concluding Thoughts

From studying the war conventions of a wide range of cultures over millennia of experience, we see promise in an open-textured law of war that leaves space for local customs and norms. At a time of increasingly elaborate scholarly refinements and judicial contributions, these surveys reveal that the law of war may not be best served by putting finer and finer doctrinal points on its codifications. Rather, greater potential to interrupt cycles of senseless violations and opportunities to unite, rather than further divide belligerents, may lie in identifying minimal common ground that sustains a degree of play in its interpretive joints.

Our studies reveal that the codes of honor that have aimed to mitigate warfare around the world have not in fact been universal in either substance or approach. 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.

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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.

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.

Photo credit: Pexels, Brill Nijhoff