This post is the final of a multi-part series introducing the newly published book, The Laws of Yesterday’s War. Part one considered the relevance of Indigenous Australian laws of wars to cyber. Part two examined the parallels between the Russian invasion of Ukraine and pirates and privateers in the Elizabethan era. Part three looked at the concept of ‘lawfare’ and the Lieber Code. In the final post, Samuel White (editor) discusses whether the laws of war unnecessarily promotes suffering by legitimising war.
The recent and growing series I am editor of, The Laws of Yesterday’s Wars, benefits from a comparative study methodology that grows with each volume. I write this blog then informed through the contributions published in The Laws of Yesterdays Wars Volume 1 and forthcoming in The Laws of Yesterdays Wars Volume 2. The historic norms of war provide valuable non-Western insights into modern issues that European cultural developments bypassed. There are many different concepts that can be covered, such as the power of law as a weapon or how the laws of war can evolve in the face of the dated Mediterranean concept of peace and war.
This blog will focus on one topic that seems to have escaped debate: whether the laws of war unnecessarily promote suffering through legitimising war. Francis Lieber made a passing assurance that ‘short and sharp’ wars were, paradoxically, more humane than the soft wars caused by the legalisation and legitimisation that the laws of war bring.
This was a point recently raised in Samuel Moyns’ new book: Humane: How the United States Abandoned Peace and Reinvented War. Volume 1 of The Laws of Yesterday’s Wars touched on this indirectly when canvassing shock arising from the clash of British and Maori cultures. The result was the degradation of the Maori ‘first wave’ customs of war, in the face of British ‘second wave’ warfare.
In Volume 2 of the series, Dr Špicová’s expert translation of the Mahābhārata makes clear that Ancient Indian authors believed it virtually impossible to win a war using only just means. The main battle of the Mahābhārata lasts 18 days; during the first ten days, the general of the Kauravas is Bhisma who only uses the dharmayuddha (just warfare), but after his death, warriors from both sides start to use the means of the kutayuddha (unjust or illegal warfare), and the war becomes much swifter: the second general is killed after five days, the third after two, and the fourth in a single day. The final act of the war is the night carnage of Asvatthaman where no rules apply anymore; after that, the text focuses on re-building of dharma (divine law).
Moyn follows the progression of the legitimisation of war by the laws of war and draws analogies between the legitimisation, through the legalisation of slavery. There are important and powerful linkages to be made. Moyn, through the perspectives of Clausewitz and Tolstoy, highlights the risks of allowing soft war – that is, war regulated by law. 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 international law. The sole reference to international law is in one dismissive sentence: ‘[a]ttached 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, Lieber – a support of Clausewitz’s sharp war construct – codified the right to deny quarter to captured persons. This act of lawfare, as Chris Bailey noted in Volume 1, was unprecedent.
Sharp wars (those without the straightjacket of laws) have often been used to justify campaigns of terror. Denial of quarter, a particularly brutal concept only recently regulated, has remerged again in the recent Russian-Ukrainian war. On 2 March 2022, Ukrainian Special Forces announced it would no longer capture Russian Ukrainian artillerymen, but would kill them in response for their ‘brutal shelling of civilians and cities’ .
Can we exist in a system without war? Or is war a natural part of the human condition? The author’s personal feeling is towards the latter. Even if we take the rules away, and promote sharp war, societies will always try to regulate themselves. This is, indeed, the underlying assumption of Hobbes’ state of nature and emergence of the State. Roman warfare, with its emphasis upon fides publica populi Romani, demonstrates a society without international checks and balances (after the collapse of Carthage) that still sought to regulate itself. However, this bona fides only extended to those who were recognised by the Roman State as deserving it. This, of course, is not unique: as seen in the experiences of Indigenous Australians against the legal rhetoric of the British Empire, the Aztecs against the Spanish conquistadors, Native Americans and European colonisers, or the Japanese against China after adopting European laws of war.
Yet does the deregulation of warfare really speed up its resolution? The move by Ukrainian Special Forces would seem based in this theory; but just as readily it may incentivise Russian artillerymen to win. The subsequent backtracking of Ukrainian Special Forces to the ambiguously worded threat they ‘would not spare’ Russian artillerymen would appear more backed in maintaining the legal and moral legitimacy than soft war theory.
Importantly, nearly every culture has exceptions to their laws of war (including non-combatants). Of the 15 cultures canvassed in Volumes 1 and 2 of The Laws of Yesterday’s Wars, only Indigenous Australian First Nations seem to have had a taboo on the spilling of non-combatant blood (women and Elders) even if they participated in conflict. It may be that the Aztec porters (tlamemeh) were also sacrosanct, but the sources are not clear. However, Buddhist ethics are governed generally by the principle of moral autonomy, so it was considered that soldiers had full individual responsibility for their actions; it was not overridden by “military necessity”. The use of surprise attacks, Friday suggests, was perhaps considered justified because warriors were always expected to be on their guard. So, taking them by surprise could not be seen as taking unfair advantage of them, any more so than attack in an ordinary battle if they have slipped their guard.
As I covered in Volume 1 and elsewhere, despite popular fiction, surprise was also a valid tactic in many European cultures. What was not acceptable, and core in the argument against sharp war, was the breaking of trust. It is here that Moyn’s assertion is, with respect, the weakest. People always have, and always will, seek to leave the state of nature. This is achieved when people demonstrate obedience to an authority. What these volumes have demonstrated is that this obedience is often not to an individual, but to an idea: that of chivalry, fides, community, bushido, milwerangel. These are the customs and laws of war which individuals have created rituals around and which some individuals will always wish to shape and change – sometimes through appeals to exceptionalism, or to that of necessity. Yet it is important to distinguish between those who agitate for a reform of the system, and those who argue for its entire dismantlement. Those in the latter camp may try to use misinformed appeals to history and precedent; it is hoped that these and future Volumes may help inform and clarify the debate.
Samuel White is a Cybersecurity Post-Doctoral Fellow & RUMLAE Associate Researcher at the University of Adelaide, Adjunct Research Fellow at the University of New England, & Legal Officer in the Australian Army. These views do not reflect the views of his employer nor are those of affiliate organisations.
The Laws of Yesterday’s Wars is available now at Brill Publishing.