Laws of Yesterday’s Wars Symposium – Make War Sharp Again?

Editor’s note: The following post highlights a chapter that appears in Samuel White’s edited volumes Laws of Yesterday’s Wars published with Brill. For a general introduction to the series, see Samuel White and Professor Sean Watts’s introductory post.

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Francis Lieber made a passing assurance that brutality in “short and sharp” wars was, paradoxically, more humane that the soft wars produced by the laws of war. So too did Admiral Williams Rebolledo, Commander-in-Chief of the Chilean Navy, who justified his bombardment campaign of unfortified Peruvian towns under this sharp war construct:

[t]he people of Peru, and perhaps even a portion of our own, have forgotten in the current contest that a war is all the more humanitarian when it is crueller, and that only by making the belligerents feel all the rigours of war is that we will promptly reach peace.

The “othering” of IHL has a demonstrated past resulting from the exclusion of so-called Enemies of the Faith to the laws of chivalry. It is of no surprise, then, that the idea of “sharp war” should seem so natural to some commentators given that its historical application “by the discretion of the commander and such rules of justice and humanity as recommend themselves in the particular circumstances of the case.” The application of humanitarian principles, in other words, was the measure of the commander’s charity, rather than the result of legal compulsion.

The viability of sharp war seems to have increased in attractiveness as conventional state-on-state warfare has seemingly decreased in frequency. This was a point recently raised in Samuel Moyn’s new book: Humane: How the United States Abandoned Peace and Reinvented War. Moyn specifically advocates the dismantling of the Geneva Conventions on the grounds they are not fit-for-purpose. He argues that without rules and regulations, warfare is more brutal but consequentially quicker and more humane. How correct, however, is he?

This concluding blog post in our symposium, through historical examples drawn from The Laws of Yesterday’s Wars, seeks to demonstrate that even if the laws of war were rescinded, societies still would seek to create customs and norms that mitigate and constrain behavior. It addresses a spectrum of different cultures and highlights that customs always emerge—”a social contract of war”—to control a specific State of Nature. This is because IHL is not solely European in custom; as Weeramantry J of the International Court of Justice noted in his Dissenting Opinion in the Nuclear Weapons Case

… the concept is of an ancient origin, with a lineage stretching back at least three millennia…. It is deep-rooted in many cultures Hindu, Buddhist, Chinese, Christian, Islamic and traditional African. These cultures have all given expression to a variety of limitations on the extent to which any means can be used for the purposes of fighting one’s enemy.

The post first examines the concept of “sharp war” (being wars fought without legal restrictions) and the arguments put in favor of the deregulation of warfare. The sharp argument seems to reoccur every generation, but as these volumes have demonstrated, historical evidence would suggest that societies will always seek to regulate and eliminate the worst excesses of warfare.

Sharp War

Sharp war (being warfare fought outside the constraints of rules) is often argued to fall within human nature. Exceptional circumstances require exceptional breaches from the rules. The popular tale of David and Goliath highlights this. Goliath, vested in the contemporary symbols of wealth and prestige—mail armor, shield bearer, sword and spear – is met with David, a shepherd armed with a sling. There is an exceptional circumstance that requires the rules of the time—equal combat—to be broken yet. Often the story ends there. But a literary analysis of the language demonstrates the layers that this choice of weapons means to Goliath.

And David said to Saul, Let no man’s heart fail because of him [Goliath]; thy servant will go and fight with this Philistine.

And Saul said to David, Thou art not able to go against this Philistine to fight with him: for thou art but a youth…

[David answered,] Thy servant slew both the lion and the bear; and this uncircumcised Philistine shall be as one of them, seeing he hath defined the armies of the living God.

David said moreover, The LORD that delivered me out of the paw of the lion, and out of the paw of the bear, he will deliver me out of the hand of this Philistine.

David, who did not need armor to fight animals, dismisses the weapons in lieu of a sling and stave. He approaches Goliath:

And when the Philistine looked about, and saw David, he disdained him…

And the Philistine said unto David, Am I a dog, that thou comest to me with staves?

Goliath immediately grasps that David defines and intends to treat him as subhuman—an animal, to be fought without honor—and approach him within a sharp war construct. Only by fighting in an asymmetric manner, outside the Philistinian rules of war, was David able to win.

In a similar vein, Homer recognised the dividing line between humans and animals throughout the Iliad. Humans, unlike animals, can be both savage and compassionate. Achilles, in his ariestia, comments to Hektor:

… I will have no talk of pacts with you, …

As between men and lions there are none,

no concord between wolves and sheep, but all

hold one another hateful through and through

so there can be no courtesy between us….

This scene, of Achilles transformed into an animal, is laden with Homer’s implied view of what it means to be human: to be willing to parley, to consider self-restraint, to respect others as possible friends. In other words, to dismiss sharp war construct in favor of “soft war” construct. Achilles is not a hero in the story. He is a lesson in Fate, and in the excesses of war. Indeed, the Iliad starts with a forewarning of the purpose of the tale:

Rage — Goddess, sing the rage of Peleus’ son Achilles,

murderous, doomed, that cost the Achaeans countless losses,

hurling down to the House of Death so many sturdy souls,

great fighters’ souls, but made their bodies carrion,

feasts for the dogs and birds…

The Hellenes were not lawless. Achilles is operating outside the boundaries of the Hellenistic social contract, urging sharp war to a society that dismisses it. Under customary Greek law, bodies were protected from mutilation, temples from desecration, as well as women and children spared outside of sieges. These rules were later adopted under the Roman Republic and the process of interpretatio Romana with some modifications, mainly legitimising “no quarter” and the systematic sacking of cities (urbs direpta).

Sharp war advocacy finds its modern origins in the writings of a Prussian staff officer, heavily influenced by the dissonance between European warfare and the warfare of Cossack raiders. Clausewitz is cited as having warned against the “kind-hearted fiction that a national could wage war without too much bloodshed.” Indeed, says Moyn through Clausewitz:

the fact that slaughter is a horrifying spectacle must make us take war more seriously but not provide an excuse for gradually blunting our swords in the name of humanity… Sooner or later someone will come along with a sharp sword and hack off our arms.

Clausewitz was more worried by pacifists than by international law. The sole reference to international law is in one dismissive sentence: “[a]tached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it.” To that end, Dr. Francis Lieber—a supporter of Clausewitz’s sharp war construct—codified the right to deny quarter to captured persons. Nothing can be sharper. Denial of quarter, a particularly brutal concept, has remerged again in the recent Russian-Ukrainian war. On 02 March 2022, Ukrainian Special Forces Command announced it would no longer capture Russian Ukrainian artillerymen, but would kill them in response for their “brutal shelling of civilians and cities.” The order is against the background of a particularly brutal conflict, where “soft war” constructs are dismissed as being unrealistic. Sharp war advocates have again reared their heads.

The sharp argument also finds advocates from an ethical lens. Moyn relies upon the analogy of slavery to make the argument that the laws of war legitimize warfare, making them slower and more brutal. One solution then? Deregulate war (make war sharp again) and allow its horrors to generate social pressure to delegitimize it. Taking sharp war advocates arguments to their full extent, this could be achieved through a suspension of LOAC to allow for direct targeting of civilians to spread terror, use of chemical/biological/nuclear weapons or the re-instigation of starvation as a tactic of warfare.

This is the sharp war argument, one that emerges every generation. Clashes of civilizations, such as between Rome and Carthage; Aztec and Spain; Maori and Britain; or even within contemporary conflict by the West in the Middle East, highlight that the laws of war often break down when inconvenient. The point was perhaps most aptly stated by the 1930s British Prime Minister, Stanley Baldwin, who remarked on attempts to regulate the use of bombers in the inter-war periods of the 1930s:

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.

It seems abhorrent because it is. But of course, the counter-argument appears every generation as well.

Soft War

As Zuzana Špicová expertly highlighted, the Mahābhārata can be used as a touchpoint for advocating sharp war. The Book of Bhīṣma holds that means of warfare should be met with comparable means of warfare. As Zuzana notes, one can easily observe how the rules of the dharmayuddha gradually diminish as the battle progresses and as the generals of the Kauravas change. Those that break dharma eventually win the battle—but not the war. Breaches of military law in the Mahābhārata are shown to have severe consequences not only for the particular heroes, but also for their families, clans, and the whole world. A small breach is shown to lead to complete destruction as warriors feel justified to use progressively more unfair means not only to win the war, but to take revenge.

Against this backdrop of revenge can the intricate laws of Indigenous Australian warfare be viewed. Payback was a guiding force in intra-Indigenous relations, and all death required compensation. However, so as to best mitigate the spiralling that might occur, formalised battles were pitched so as to control the excesses of violence. All of society was involved – from uninitiated youths to warriors, women and Elders. Violence was accepted, but controlled, by society.

So too did the Flowery Wars of the Mexica perhaps allow for the possible excess of violence to be controlled by those socially rewarded for their martial prowess. Equally, the division of peace and war chiefs within North-eastern America appears as a time-honoured tradition that sought to shape decision making away from the rewards of violence. Of course, as Wayne E. Lee notes, colonisation shattered and undermined these cultural norms – for the Mexica, the Iroquois, and Indigenous Australians.

In Volume 1, Professor Alexander Gillespie highlighted the same fragmentation that occurred for the Maori of Aotearoa (New Zealand). Yet in all these clashes of civilisation, sharp war did not occur. Within North America, the clash resulted in a merge of means and cultures of warfare. For the Mexica, their preference to capture (rather than kill) combatants merged once they realised the conquistadors were not willing to be sacrificed. In Australia, land management arrangements were organised between colonists and First Nations in a way that sought to both co-exist (in a manner designed pre-colonisation) and deflect competition. In New Zealand, Maori laws of war were codified by English-speaking Polynesians and promulgated during conflict.

So too have societies always sought to divide combatants from non-combatants. The Mexica seem to have taken this approach to its most extreme limit, with certain classes of warriors only allowed to target one another. Within Australia, un-initiated men were culturally prohibited from fighting, and in return, were protected from being attacked. For Mongols, individuals under the height of a wagon-wheel were spared from the consequences of warfare. In the Buganda Kingdom in Uganda as well as among the Maasai community in Kenya and Northern Tanzania, there were rules concerning treatment of certain persons during times of war. According to the Somali community, it was generally agreed that “those oblivious to the war should not be finished off.” This is an interesting test and included “mediators, envoys, priests, medicine men, the elderly, the disabled, children, diviners, women, and the rainmakers.”

It is a test that finds support in some cultures across Polynesia. On Makira, if surumae—the sudden, temporary periods of war without warning—occurred, those in the “branches of a nut-tree or fruit-tree collecting fruit… or anyone fishing for bonito in a canoe” could not be attacked. This was so that war could be restricted to those literally “on the ground.”

Islamic law makes it abundantly clear that all fighting on the battlefield must be directed solely against enemy combatants. Civilians and other non-combatants must not be deliberately harmed during the course of hostilities. Here the Qur’ān 2:190 is often quoted: “And fight in the way of God those who fight against you and do not transgress.” Based on this text and several hadiths attributed to the Prophet Muhammad in which women, children, the aged, the clergy and the ‘usafā’ (those hired by the enemy to do supporting services in the battlefield, but do not engage in the fighting) are mentioned as examples of protected categories that cannot be tagged during hostilities. The usafā (those who wield the sword, not those who sharpen it) are particularly relevant to private military companies. Although part of the military, they were distinct under Quar’anic law.

Conclusion 

The foregoing demonstrate that the codified laws of war do truly reflect the customs and norms from a particular period of time in a particular part of the world: the medieval period of Northern Europe. It is for this reason that Sir Christopher Greenwood commented:

I have to say, however, that one needs to take with a pinch of salt the idea that the modern day Geneva Conventions can be traced right back to the Old Testament and other early texts. The Book of Deuteronomy, for instances, contains one or two rather good verses about humanitarian principles but it also contains passages, which would not be out of place in a practical guide to ethnic cleansing…. Greek city-states had one standard for prisoners of war from Greek city-states and another … for people taken prisoner from non-Greek communities.

Yet the fact that standards existed goes to the heart of the soft war argument. Humans in a group will seek to create a social contract, so as to leave (as Hobbes puts it) the State of Nature—a state oddly similar to the sharp war construct. Bentham held this enlightenment occurs when people demonstrate obedience to an authority that  enforces their social contract. Indeed, “it greatly strengthens the concept of humanitarian laws of war to note that it this is not a recent invention, nor the product of any one culture.” With respect to the laws of war, this obedience is often not to an individual, but to an idea: that of fides, community, bushido, milwerangel. Modern compliance jurisdictions such as the International Criminal Court arguably embody this respect for the rules, rather than enforce them: it is for this reason they are a court of last resort.

These are of course some aspects of IHL which some individuals will always wish to shape and change—sometimes through appeals to exceptionalism, or to that of necessity. The modern example from Ukrainian Special Forces and their approach of “no quarter” demonstrates this. Yet it is important to distinguish between those who agitate for a reform of the system (such as a particular prohibition), and those who argue for its entire dismantlement (such as Moyn). Those in the earlier camp may wish to use history; those in the latter camp may try learn from it as we hope this symposium and the volumes it supports have made easier.

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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.

 

Photo credit: Metropolitan Museum of Art via Wikimedia Commons