A foreword is meant to convey something about the significance of the book it precedes. It is meant to have greater weight than a mere advertisement but nonetheless tell potential readers why they should read this book. This book is significant, and anyone who thinks about the legacy of the British Empire and the rule of law should read this book.
Decolonisation is a popular term today but, given it is an essentially negative term, it has a potential to mislead. The consequences of colonialism under the British Empire are not going away any time in the foreseeable future. The legacy of the Roman Empire is still with us more than a millennia after its fall. The British Empire was the largest in history and, given that its peak is still within living memory, it still determines the language, the law, the literature and the lineage of so much of the world today. The good and bad of the British Empire must therefore occupy our critical attention. If we are to consider seriously what the rule of law means in this world, we cannot actually decolonise. We can criticise and evaluate the Empire, and reassert the cultures it dominated, but we cannot decolonise away what has happened.
The rule of law is under serious challenge from revisionist powers such as China, Russia and Iran. Now is the time to think about what underlies the international rule of law. To appreciate that so much of what we might value in that legal order has a basis in the British Empire, and that so much of the excesses of that empire were perceived by some, if not all, as wrong at the time, is of fundamental importance right now.
This book concerns the customary war crimes of the British Empire and it addresses in turn eight specific prohibitions, particularly:
– Summary execution
– Sexual violence
– Perfidy
– Slavery
– Looting
– Brigandry and Piracy
– Forced Dispersal and Deportation
– Private warfare
It draws conclusions on the existence and the strength of each one. These war crimes are amongst the most significant of any age, as they are the essence of disorder, inhumanity and brutality, and quite the opposite of the rule of law. The conclusions on each prohibition are therefore a reflection on the British
The book concludes that summary execution was widespread but by the 1880s the practice was to prohibit such killing, and also protest such action by other European powers. Most notably for Australians, Lieutenant Harry ‘Breaker’ Morant was among those court martialled and shot for the execution of Boer prisoners and civilians in South Africa. The British Government also protested the massacre of Herero-Nama people in South West Africa, now Namibia, pursuant to the orders of the German commander, General Lothar von Trotha. Summary execution is still occurring in conflicts today, but this book reminds us that it has been seen as wrong for a very long time.
In relation to sexual violence, which seems to be a recurring feature of any conflict, the book concludes that there was patchy enforcement of a prohibition depending mostly on the will of the commander of the forces concerned. Clear orders were given in various campaigns to prohibit such conduct and sometimes these were enforced. British sailors and soldiers were flogged or sentenced to death for outrages against American women in the war of 1812. Major Norris also investigated claims of attempted rape by members of the British West India Regiment in Sierra Leone in 1898 and 1899. The current prohibitions on sexual violence in war can be seen then to have part of their origin in the practice of the British Empire. Again, even if sexual violence is pervasive, if it was punishable in 1812 then it should most certainly be punishable now. There is no scope for a c’est la guerre argument.
Perfidy is a broader topic and usually involved inviting the trust of an adversary and then breaching that trust, whether through breaches of an oath, the misuse of protected emblems or the use of poison and assassination. This was different to the use of deception, such as by camouflage or ambush, as there was no breach of trust. By its nature this is a diffuse and complicated area of the law, differing in its rules for conflict at sea and on land. The book concludes that by the end of the nineteenth century there was an enforceable prohibition on such conduct against Western powers, as seen in the 1880 Oxford Manual, and an emerging prohibition on such conduct against non-Western people. The example given is that of British condemnation of a German breach of trust in inviting Herero chiefs for peace talks, and then murdering most of the group in 1903. Whilst perfidy is more clearly regulated today, it still goes on. Any argument that it is somehow justifiable should find a rebuttal in this book, to the effect that perfidy has long been contrary to custom, as well as being contrary to modern treaties.
Prohibition of the transport of slaves
Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.
The practice of slavery persisted in some parts of the Empire, such as in what is now Malaysia, or in West Africa where it still persists, or in the practice of ‘blackbirding’ in Queensland. The book concludes that the prohibition was not complete but was nonetheless enforceable and significant in British imperial policy. Slavery remains an issue, with modern slavery legislation appearing in the United Kingdom and Australia, and this book reminds us what an important and hard-won achievement the abolition of slavery was.
Looting of cultural property on the other hand has a less admirable history. The book concludes that while there may have been an enforceable prohibition against the looting of Western cultural property, by the end of the nineteenth century there was no such prohibition in respect of looting of non-Western property. The book describes the Congress of Vienna in 1815 compelling France to restore cultural property looted from Europe during the Napoleonic Wars, whereas there was no requirement for France to return cultural objects taken from Egypt. There are ongoing controversies over the Parthenon Marbles and the Koh-I-Noor diamond as mentioned in the book, and also the return of human remains and cultural objects from museums and universities to indigenous groups around the world. This would suggest that there was no settled customary prohibition on looting the cultural property of non-Western people in the British Empire at the end of the nineteenth century. The important point today is that if looting was prohibited in some cases in 1815 then, if racism is no longer acceptable, it should be prohibited in all cases. Even if imperfectly, the customary prohibition of the nineteenth century provides a basis for such a prohibition now.
Possibly the worst and most enduring legacy of the British Empire has been what might since the 1990s have been called ethnic cleansing. This includes deporting a population or destroying it through genocide and forced assimilation into a larger culture. There is plenty of evidence of both occurring right up until the end of the nineteenth century. Examples of deportation include moving native North American, Australian Aboriginal or New Zealand Māori populations onto reserves or moving Boer families into concentration camps. Even if these populations were not taken to another country altogether in terms of the Empire, they were clearly taken from their own land and forced to live in much diminished conditions somewhere else. At worst, there was wholesale slaughter. This was the case in Australia. Despite considerable evidence of genocidal campaigns in various parts of the country, many do not accept that this occurred. There was only one notable prosecution in respect of the Myall Creek Massacre in 1838. The effect nonetheless has been an almost complete deprivation of language, law and land for Aboriginal people in most of the more populated parts of the country. The book concludes that by the end of the nineteenth century there was an emerging prohibition on forced dispersal and deportation of Western populations but it was patchy, while there was certainly no prohibition on this conduct towards non-Western populations. Even if in stark contrast to the law as it stands now, this is still not surprising given the ongoing impacts of settler colonialism in parts of the Empire
The final chapter deals with the prohibition on private warfare. For those living in industrialised liberal democracies, the monopoly of the state over warfare is a deep seated assumption. The idea that private actors could wage warfare is virtually inconceivable. In many other parts of the world private warfare is the norm, whether in Myanmar, Lebanon or Papua New Guinea. The presence of tribal warfare, private militias or warlords would be the antithesis of the rule of law, their presence even defining the absence of legal restraints on violence. The conclusion of this book is that, by the end of the nineteenth century, the prohibition against private warfare ‘was fully crystallised’ in the British Empire. This did not extend to non-Western peoples and this foreword has already mentioned some of the horror that follows from this. Again, if racism is no longer acceptable, then the legacy of the British Empire should be that any private warfare is now contrary to the rule of law. The barely acknowledged assumption that the state has a monopoly on warfare which exists in so many Commonwealth countries is then a legacy of that empire.
Having considered the various prohibitions under discussion, it is possible now to consider the overall significance of this book. There are a number of important points to note in this fascinating collaboration between Associate Professor Sam White and Ikhwan Fazli Bin Adi Bokharee. The first is the collaboration between the authors themselves. White is from a settler society in Australia which is one of the key beneficiaries and inheritors of the British Empire. If ever there was a society which sought to displace and supplant its original inhabitants, then Australia is it. On the other hand, Fazli is from Malaysia, a state which was subject to British rule and excesses but not to settler colonialism to the same extent as Australia. Malaysia has maintained traditional forms of authority alongside British style parliamentary democracy and the rule of law in the form of the common law. The differing but also the shared perspectives of the authors are important. There is little literature on the customary laws of war of the British Empire, nor much co-authorship of legal texts between Malaysians and Australians. The mere fact of this collaboration then is in itself significant in moving to a more mature understanding of the legacy of the British Empire — those living with that legacy need to talk about it together.
The next important point about this book is what it says about the rule of law in the British Empire, particularly at its height in the late nineteenth and early twentieth centuries. There were clearly horrific excesses but the fact that there were occasions when there was legal accountability means that there was restraint. The rule of law did restrain power and arbitrariness, even if only
Affirming that the special strength of the Commonwealth lies in the combination of our diversity and our shared inheritance in language, culture and the rule of law; and bound together by shared history and tradition; by respect for all states and peoples; by shared values and principles and by concern for the vulnerable.
1
The shared aspect of this history is as important as the rule of law itself. In addition to the practical benefit of being able to share case law, legal expertise and legal scholarship, just as in this book, the reinforcing effect of numerous countries upholding these traditions is immeasurable but clearly significant given the terms of the Commonwealth Charter. The current threats to the international rules-based order means that this shared legacy may be more important than ever. It may just provide the necessary strength to maintain that order.
This writer has experience travelling through southern Africa and engaging in rule of law discussions in India, Sri Lanka, Bangladesh, Malaysia, Singapore, Brunei, the Philippines, Papua New Guinea, Solomon Islands, Fiji, New Zealand, Canada, the United States and the United Kingdom. The shared common law tradition has made for an invaluable starting point in considering both domestic and international law, as well as national values and interests. This is not just a case of shared knowledge but also a shared way of thinking
The approach of this book to analysing the practice, as opposed to the theory, of applying customary prohibitions in war also underlies this more sophisticated assessment of the British Empire. Despite the history of international law being Eurocentric and imperial in many respects, the historical evidence provided in the book for the application of different prohibitions at different times illustrates that this history has both a detrimental and beneficial legacy. To say now that the British Empire was a bad thing is just as unsatisfactory as saying simply that it was a good thing. It was not everywhere and always the same.
A further important point is the place of this book in the developing scholarship on customary laws of war across time and space, considering its totality rather than just the British Empire. The religious insight and consideration of natural law in Chapter 1, and the conclusion, is profound. Whilst the substance of the prohibitions may vary between religions and cultures, the presence of restraint in the conduct of warfare tells us much about the human condition. Despite our propensity for violence there is something within in us that says it must somehow be authorised and controlled, even if in practice it is often not. Traditions across the world mourn past violence and yet still seek ways to justify and manage it now. The desire for power creates the propensity for violence. This means that we never seem to be able to overcome our need for violence as a means of control, even though that control can only ever be transitory. On the other hand, the destruction which this violence causes means that humanity is always seeking ways to mitigate it effects. These competing desires forever seem to be in tension.
This book therefore is an important contribution to understanding warfare, war crimes, the British Empire and ourselves. I am grateful to have been asked to write this foreword and commend the book to readers.
Professor Cameron Moore, University of New England
Commonwealth Charter, Preamble,