I am delighted to have been invited to contribute this Foreword to The Laws of Yesterdayâs Wars: From Ancient India to East Africa, the second volume in Samuel Whiteâs edited series of historical analyses of the regulation of warfare within specific selected cultures. The selections for this volume, like those for Volume I, follow no obvious geographic, cultural, theological or other discernible pattern although the essays in this volume are arranged more or less chronologically (laws of warfare from Ancient India through the centuries before and straddling the Common Era (Carthagian and Roman Empires, Islam during Mohammedan times) to more recent centuries (Eastern Native Americans, Japanese during the Bushido era and East African peoples)). That observation is not a criticism. What Samuel White has managed to do in two successive edited volumes is create a growing data set from which to compare and contrast approaches to constraint on the waging of war. His Conclusion to this volume, in which he engages in his own comparative analysis across the now combined total of fifteen case studies, is demonstrative of the potential richness of the comparative analysis to come â after the publication of the intended future companion volumes. I am sure I am not alone in looking forward to future companion volumes while savouring what is already here.
I have always been intrigued by the historical development of constraints on the waging of war and particularly on the antecedents to multilateral constraint within particular cultural, spiritual and social traditions. Twenty five years ago Gerry Simpson and I co-edited a volume entitled The Law of War Crimes: National and International Approaches. In that volume I attempted to trace the evolution of an international criminal law regime including constraints on the waging of war and particularly disciplinary measures for violations of those constraints. I am not suggesting here that my analysis then was in any way equivalent to the breadth and depth of analysis undertaken by Samuel White and his contributors. On the contrary, when I read back over what I wrote in 1997 I realise how relatively cursory my analysis was and how much more substantive, rigorous and meaningful othersâ, including Samuelâs, contributions to contemporary scholarship really are. But my early interest in this subject matter certainly laid a foundation from which my interest was piqued when the manuscript for Samuelâs Volume I landed in my inbox. More recently I co-edited with Suzannah Linton and Sandesh Sivakumaran Asia Pacific Perspectives on International Humanitarian Law in which we assembled a diverse group of scholars from the Asia Pacific Region to provide authentic regional perspectives on this body so regularly the preserve of voices from
My invitation to contribute stems less from my personal interest in the subject matter of this volume and much more from my role as editor-in-chief of Brill Nijhoffâs International Humanitarian Law Series. The manuscripts for both Volumes i and ii were reviewed, as all proposed manuscripts for inclusion in the Series are, and publication was unanimously recommended in both cases. The subject matter of these two volumes (and also that of future accompanying volumes) is precisely the sort of material that the International Humanitarian Law Series should include. The author of the Foreword for Volume I stated that â[t]his work is largely one of historical study rather than of Lawâ and that is an accurate statement stricto sensu. However, the history of warfare, including constraints on the waging of war â whether the result of legal regulation in a positivist sense or of norms emanating from the customs and usages of war of the result of some other cultural, spiritual and/or social influence â is a valued and worthwhile study to help us understand various contributing influences on the development of the law as well as to expose some of the overly-simplistic assumptions or, worse, the myths international humanitarian lawyers often help inadvertently promote about the development of this particular body of law.
One example of overly simplistic assumptions about the origins of international humanitarian law is that the 1864 Geneva Convention, as the first binding multilateral treaty, was the starting point and that subsequent 19th Century treaty law consolidated the newly emergent international legal constraints. In one sense the proposition is not fallacious - but it certainly lacks nuance. Twice in the 1868 St Petersburg Declaration âthe laws of humanityâ are identified as the necessary counterweight to the necessities of war. Similarly, the 1899 and 1907 Hague Conventions and Declarations are replete with the call to acknowledge and respect the overarching protection of âthe principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscienceâ. The essays in this volume, and indeed in Volume I, help provide substance to the meaning of concepts such as âthe laws of humanityâ, âusages established between nationsâ and âthe requirements of the public conscienceâ. These concepts lay in the normative imposition of constraints on the waging of war that nations applied to their own military operations and had come to
The importance of the scholarship in this and related volumes is not only as an exposer of overly-simplistic assumptions although that is a worthwhile contribution in and of itself. Samuelâs Introduction to the volume includes the assertion that: â[t]he cultural norms and customs that developed in many communities outside of Europe actually reflect a more nuanced approach to mitigating warâs effects than the customs and codes developed in Europeâ. The International Committee of the Red Cross (icrc) has long advocated for deeper and more sensitive understanding of the history of constraints on the waging of war within cultures as a key hook for the promotion of respect for international humanitarian law within military and security forces with that cultural background. This motivation is both understandable and admirable and we see it explicitly referred to in the chapters in this volume by Ahmed Al-Dawoody on âIslamic Laws of Warâ and also by Kenneth Wyne Mutuma and Eve Massingham on âEast African Laws of Warâ. Mutuma and Massingham cite the icrcâs important work on the history of the laws of war in Melanesian cultures in the 2009 publication Protection under the Palm: Wars of Dignity in the Pacific as a key comparator to Somali approaches to war. No doubt future related volumes in this series within a series will cover Melanesian cultural approaches to the laws of war to supplement Alexander Gillespieâs chapter in Volume i on âMaori Warfare and New Zealand Warsâ. My key point here though is that, while other chapters may not be as explicit about this particular motivation as Al-Dawoody, Mutuma and Massingham all of whom have worked with the icrc, the lack of explicit reference does not preclude the potential contribution that all the chapters offer.
Exposing overly-simplistic notions is one thing but myth-busting takes the contribution to a different level altogether. I have become increasingly sensitive to the importance of exposing what Frédéric Mégret calls international humanitarian lawâs âoriginal sinâ â that humanity as a constraint on the waging of war was a narrowly colonialist construct intended to extend legal protections only to âcivilisedâ combatants to the exclusion of so-called âuncivilised savagesâ.
The language of the early multilateral treaties provides all the clues necessary to expose the myth of inclusivity based on our shared humanity. The Preamble to the 1868 St Petersburg Declaration explains that States gathered in the then Russian capital to consider âforbidding the use of certain projectiles in time of war between civilized nationsâ and that âthe progress of civilization should have the effect of alleviating as much as possible the calamities of warâ. This new, multilateral prohibition on exploding bullets for anti-personnel use
I applaud the contributions in this volume and eagerly anticipate the publication of future companion volumes. This is important work and I commend it to all who share an interest in constraining the conduct of war.
Tim McCormack
Professor of International Law, The University of Tasmania
Special Adviser on War Crimes to the Prosecutor of the International Criminal Court
Editor-in-Chief of Brill Nijhoffâs International Humanitarian Law Series