WAR AND THE LAW OF NATIONS This book is a history of war, from the standpoint of international law, from the beginning of history to the present day. Its primary focus is on legal conceptions of war as such, rather than on the substantive or technical aspects of the law of war. It tells the story, in narrative form, of the interplay through the centuries between, on the one hand, legal ideas about war and, on the other hand, state practice in warfare. Neff covers the emergence, in various ancient societies, of an association between justice and warfare, which matured into the just-war doctrine of the Middle Ages.
He then traces the decline of this conception of war in favour of a view of war as an instrument of statecraft, culmina- ting in the evolution of what became known as the legal institution of war in the nineteenth century. There is also coverage of the much- neglected topic of measures short of war, most notably of reprisals, but also including the evolution of self-defence doctrines and practices over the years. International legal aspects of civil wars are also considered, notably the development of recognition of belligerency and of insurgency in the nineteenth century. The attempt by the League of Nations to restrict war is analysed, with an explanation of the deeper reasons for its failure and the way in which this paved the way for the substantial discarding, after the Second World War, of war as a legal institution, in favour of the alternate conception of aggres- sion-and-self-defence.
Treatment of new approaches to civil wars after 1945 and of the advent of war against terrorism brings the story to the present day. N E F F is a Reader in Public International Law at the University of Edinburgh. He is the author of two previous books on international legal history: Friends But No Allies: Economic Liberalism and the Law of Nations (1990) and The Rights and Duties of Neutrals: A General History (2000). WAR AND THE LAW OF NATIONS A General History by STEPHEN C.
NEFF Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge , UK Published in the United States of America by Cambridge University Press, New York www.org Information on this title: www. Neff 2005 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2005 - ---- eBook (NetLibrary) - --- eBook (NetLibrary) - ---- hardback - --- hardback Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
To my nephews and nieces: Eric Delaney John Cameron Alexander Katherine Clark Jocelyn Thomas War holds a great place in history, and it is not to be supposed that men will soon give it up – in spite of the protests which it arouses and the horror which it inspires – because it appears to be the only possible issue of disputes which threaten the existence of States, their liberty, their vital interests. – Institute of International Law, Preface to the Manual on the Laws of War on Land (1880) CONTENTS Preface page x List of abbreviations xi Introduction 1 PART I War as law enforcement (to 1600) 7 1 Ares and Athena 13 Hallmarks of war 14 War as an instrument of justice 29 2 Loving enemies and hating sin 39 Islamic perspectives 40 Christian soldiers 45 The contours of the just-war outlook 54 Outside the cloister 68 PART II New forces stirring (1600–1815) 83 3 War in due form 95 Breaking new ground 96 Perfect war 102 Imperfect war 119 vii viii CONTENTS 4 Dissension in the ranks 131 Challenges to orthodoxy 132 Grappling with issues 140 PART III War as state policy (1815–1919) 159 5 Collisions of naked interest 167 The positivist synthesis 169 War as an institution of law 177 Dark shadows remaining 196 6 Tame and half-hearted war: intervention, reprisal and necessity 215 The art of intervention 217 Reprisals 225 Emergency action 239 7 Civil strife 250 From rebellion to belligerency 251 Recognising belligerency 258 Recognising insurgency 268 PART IV Just wars reborn (1919–) 277 8 Regulating war 285 Making a new world 286 The art of avoiding war 296 9 Farewell to war? 314 A neo-just-war order 316 CONTENTS ix The art of abolishing war 335 Unanswered questions 347 10 New fields of battle 357 From civil war to national liberation 358 Striking terror 376 Conclusion 395 Bibliography 399 Table of cases 422 Table of treaties 424 Index 428 PREFACE My great thanks go to my home institution, the University of Edinburgh School of Law, for sabbatical periods that were essential to the comple- tion of this project – and also for intellectual stimulation in countless ways. The hospitality of two fine institutions was invaluable to me: the Max Planck Institute for Comparative Public and International Law, in Heidelberg, Germany (in 2000); and the George Washington University School of Law in Washington, DC (in 2003–4). For research and editor- ial assistance, I am grateful for the invaluable services of Dimitra Nassimpian, Ashley Theunissen, Kyle Sammin, Paul Margolis and Ozan Jaquette (and friends).
In dealing with the perils of the New Technology, I have had the invaluable assistance of Roger Marlowe and of my brother Tom Neff. The following people (in prosaic alpha- betical order) have assisted or inspired in manifold ways that were sometimes indirect but always much appreciated: Adnan Amkhan, Alan Boyle, Michael Byers, James Crawford, Yoram Dinstein, Thomas Giegerich, William Gilmore, Christine Gray, Susan Karamanian, Frederick Shiels, Ralph Steinhardt, Simonetta Stirling and Colin Warbrick. Only inspiration, and not errors, may be put to their charge. Finally, a most special thanks to the long-suffering staff at Cambridge University Press – to Leigh Mueller for heroic editing labours, and most specially to Finola O’Sullivan for her unique (and all too rare) combina- tion of patience and vision.
x LIST OF ABBREVIATIONS AC Appeal Cases (UK) AFDI Annuaire Française de Droit International AJIL American Journal of International Law Annuaire Annuaire de l’Institut de Droit International BFSP British and Foreign State Papers (UK) Brit YB British Year Book of International Law C Rob Admiralty Reports of Christopher Robinson (UK) Columbia J Tr L Columbia Journal of Transnational Law CTS Consolidated Treaty Series Dods John Dodson, Reports of Admiralty Cases (UK) Dumont Jean Dumont (ed.), Corps universel diplomatique du droit des gens EHRR European Human Rights Reports F Federal Reporter (USA) Fed Cas Federal Cases (USA) FRUS Foreign Relations of the United States GAOR General Assembly Official Records (UN) GP Gazette du Palais (France) ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ILM International Legal Materials ILR International Law Reports Inter-Am CHR Inter-American Court of Human Rights JDI Journal de Droit International Lieber Code General Orders No. 100, ‘Instructions for the Government of Armies of the United States in the Field’ (1863), found in Hartigan, Lieber’s Code, at 45–71 LNOJ League of Nations Official Journal LNTS League of Nations Treaty Series Moo NS Edmund F. Moore, Reports of Cases of the Judicial Committee and the Lords of Privy Council, New Series (UK) Op A-G Opinions of the Attorneys-General (USA) Parl Papers Parliamentary Papers (UK) xi xii LIST OF ABBREVIATIONS PCIJ Permanent Court of International Justice RAI Recueil des arbitrages internationaux RDILC Revue de Droit International et de Législation Comparée Res and Dec Resolutions and Decisions (UN) RGDIP Revue Général de Droit International Public RIAA Reports of International Arbitral Awards SCOR Security Council Official Records (UN) Stat Statutes at Large (USA) UNTS United Nations Treaty Series US United States Supreme Court Reports (USA) INTRODUCTION This is a history of the phenomenon of war, as viewed through the lens of international law. There is, to be sure, no such thing, strictly speaking, as the phenomenon of war, majestically constant throughout history and across the various human cultures.
War, like other human practices, has always been a protean thing, incessantly changing its face throughout the course of recorded history in response to a dizzying array of factors – religious, technological, economic, psychological, political and so forth. And its history has been duly analysed from many of these standpoints. But the perspective of international law has been strangely neglected. Some attention (but surprisingly little) has been devoted to the history of the development of rules governing the conduct of war.1 Our concern, however, is different: it is with the deeper ideas about the legal nature of war itself and how those have changed over the course of human history.
This is, in short, a history of the way in which fundamental legal conceptions of war have evolved from the most distant retrievable past to the present day. Much of our current picture of war is coloured by images of nineteenth-century conflicts between European states. This stereotype calls to mind solemnly proclaimed declarations and the summoning of ranks of uniformed troops (sometimes rather gaudily uniformed at that), in orderly arrays. These forces then engaged in combat on a field of battle against forces similarly decked out.
The winning side imposed peace terms onto the other, at which point the contest was at an end; and the two nations resumed their interrupted course of friendship, though with the strategic balance between them now altered. International law provided the set of rules by which this type of contest was conducted. War of this type was seen to be so routine, so widely accepted, as to assume something of the character of a sporting contest or a ritual. In legal terms, it was said that war was an ‘institution of international law’.
It would be a great error to assume, however, that this view of war possessed some kind of universal validity. On the contrary, this nineteenth-century picture of war was the product of a very long histor- ical process. Nor was it even very enduring, since many important changes lay ahead in the twentieth century (and beyond). Our task is 1 For a notable example, see Best, Humanity in Warfare.
1 2 WAR AND THE LAW OF NATIONS to trace the whole process of transformation of the legal nature of war, insofar as records enable us to do so, from the earliest periods of recorded history up to the present day, without falling into subservience to nineteenth-century stereotypes. The focus of this history will not – or not exclusively – be on ideas in the abstract. It will also deal with the reciprocal impact of theory on practice and of practice on theory. We will see that, over the course of history, war has moulded law at least as surely as law has moulded war.
Those who believe that ideas or doctrines have no impact on ‘real life’ are mistaken, though their error is an understandable one. But they are also mistaken who suppose that ideas or doctrines have a life entirely of their own, that they evolve through some kind of wholly innate dynamic in the manner of an embryo developing steadily along a predictable path into a person or an acorn into an oak tree. Indeed, even embryos must be nourished and acorns provided with soil and water. The interweaving of doctrine and practice in the area of war has been a complex and often untidy process through much (or rather all) of history – and never more than at the present day.
Sometimes, as in the nineteenth century, the two have marched fairly closely in step. At other times, as in the Middle Ages, the divergence has been very wide. But never has the match been perfect. Our story therefore has always these two grand components, ever in wary (and sometimes jealous) partnership.