humanitarian law and literature - from utopia to slaughterhouse 5

7/26/2019 Humanitarian Law and Literature - From Utopia to Slaughterhouse 5

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HUMANITARIAN LAW AND LITERATURE: FROM UTOPIATO

SLAUGHTERHOUSE-FIVE1

Ove Bring2

1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Persian letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3. Gullivers travels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

4. Voltaire and Rousseau . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

5. Post Napoleon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135.1 Sir Walter Scott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135.2 Clausewitz and his time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155.3 Stendahl and Dumas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175.4 Victor Hugo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

6. Tolstoys War and Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

7. Henri Dunant and Solferino . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

8. Down with Arms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

9. H.G. Wells and the principle of distinction . . . . . . . . . . . . . . . . . . . . . . . . 28

10. On the Eastern and Western fronts of World War I . . . . . . . . . . . . . . . . . . 29

11. Anti-utopian satires: Capek and Orwell . . . . . . . . . . . . . . . . . . . . . . . . . . 35

12. Russian retrospection: Pasternak and Solzhenitsyn. . . . . . . . . . . . . . . . . . 37

13. World War II: Jungle Warfare, Catch-22 and Air Bombardment . . . . . . . 3913.1 Norman Mailer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

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1. O. Bring, 2008.2. Professor, Swedish National Defence College (SNDC), Stockholm. Formerly: Legal Adviser,

Ministry for Foreign Affairs, Stockholm; Professor of Public International Law, Uppsala University;and Carl Lindhagen Professor of International Law, Stockholm University. Currently: Member of thePermanent Court of Arbitration the Hague and President of the Swedish Branch of the International


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13.2 Joseph Heller. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4113.3 Kurt Vonnegut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

14. Concluding remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

1. INTRODUCTION

Law and literaturehas been a recurring theme among scholars for many years,and this was so even before Richard A. Posner published the first edition of hisbook of that title in 1988.3 Posner is realistically sceptical about the didactic or

moral potential of narrative literature and he dislikes the egalitarian focus on thedespised, the overlooked, and the downtrodden, and by fostering empathy on themto encourage legal reform.4 It is of course true that more people have been chan-ged by natural science (e.g., Darwin) and social science (e.g., Adam Smith, JohnMaynard Keynes) than by literature, but on the other hand literary influencescannot be excluded. Posner fully recognizes the effects of Harriet Beecher Stowe sUncle Toms Cabinon the anti-slavery cause, but he also points out that the bookhas not survived as literature.

Martha Nussbaum argues in a more idealisticvein of thought that the reading

of novels develops moral capacities without which citizens will not succeed inmaking reality out of the normative conclusions of any moral or political theory.She concludes that although reading fiction will not give us a complete picture ofsocial justice, itcan be a bridge both to a vision of justice and to the social enact-ment of that vision.5

Many authors would like their readers to draw normative conclusions. A case inpoint, often referred to, is the social criticism and implicit arguments for legalreform in many of the works of Charles Dickens. Addressing the situation in Vic-torian English society, Dickens raised the absence of childrens rights in, for exam-

ple Oliver Twist(1837), the absence of civil rights for debtors in David Copper-field (1850), and the absence of social rights to welfare and education in HardTimes (1854). Many other literary approaches to the need for recognition ofhuman rights can easily be shown in an historical perspective, the abolitionist andnon-discriminatory theme of Uncle Toms Cabin (1852) has already been men-

4 Humanitarian law and literature

3. Richard A. Posner, Law and Literature (Cambridge MA, Harvard University Press 1998), 2nd

rev. and enlarged edn.4. Ibid., p. 6.5 M h C N b P i J i Th Li I i i d P li i l Lif (B MA


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tioned. Reformist elements can also be found in the novels of Jane Austen, AnneBront and Elisabeth Gaskell indicating the need to develop womens social rights.In modern literature there is an abundance of didactic elements about the perceivedneed for social and legal change. For example, the American crime writer (andlawyer) John Grisham criticized the mala fidebehaviour of different actors in theUS legal system in The Firm (1991), and took the same legal system to task forneglecting the presumption of innocence in his non-fictional The Innocent Man(2006).

Focussing now on the field of international humanitarian law of armed conflict,Thomas Mores Utopia(1516) is an early example of an indirectde lege ferendaapproach. A story is told about the distant country of Utopia (the country no-where) where conditions contrast with normalEuropean conditions in a mannerthat seems designed to disturb readers. The Utopian society is built upon a set ofegalitarian values that citizens of that time could only dream of. Moreover, theforeign policy is linked to humanitarian values. If the Utopians go to war, whichthey only do in self-defence or to liberate the victims of dictatorship, they nevergo in for any massacres. If they are successful and get the enemy on the run theyprefer capturing to killing. They never devastate enemy territory and they neverhurt an unarmed man, unless he is a spy. The whole civilian population remainsuntouched. The book was written in Latin and translated to English in 1551.6 Ittook more than three hundred years before the norms fictitiously implemented by

the Utopians were codified in the real world.

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Professor (later Judge) Theodor Meron published a book in 1993 and an articlefive years later relating the works of William Shakespeare to the medieval laws ofwarfare.8 Meron considered the ways that Shakespeare used law, chivalry, moral-ity and conscience to promote a society in which leaders are held to high standardsof civilized behaviour.9 In his book on Shakespeare and the play Henry VMeroncomments on medieval law governing sieges, prisoners, hostages, ransom and im-munity of envoys.

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6. The quotes here are from Paul Turners translation of 1965. See Thomas More, Utopia(London,Penguin Books 2003) pp. 90, 96 and 97. More was a Lord Chancellor under Henry VIII, but heobjected to the marriage affairs of the king and was beheaded in 1535.

7. The Lieber Code of the American Civil War was sanctioned by President Lincoln in 1863 asGeneral Orders No. 100 with Instructions for the Government of Armies of the U.S. in the Field. Theso called Brussels project led to a codification of a set of standards in 1874, but not to a binding treaty.Multilateral treaty making was only achieved by the Hague Peace Conferences in 1899 and 1907,although nineteen European states had through the St. Petersburg Declaration codified the principle ofunnecessary suffering already in 1868.

8. Theodor Meron, Henrys Wars and Shakespeares Laws, Perspectives on the Law of War in theLater Middle Ages(Oxford, Clarendon Press 1993 reprint 2002) and, by the same author, Crimes andA bili i Sh k 92 AJIL (1998) 1 40 d L d C i d C d


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My aim in the following pages is to identify some post-Shakespearian writerswho have in their works, in some way, showed an interest in, or referred to, hu-manitarian norms applicable in armed conflict. Writers seldom articulate norms ina legal sense, be itlex lataorde lege ferenda,but they are in a position to conveymoral or other positions which may influence readers and could translate into legalarguments. Thus, writers have a potential to reinforce ideas and norms in theirrespective civil societies and either contribute to a reaffirmation of existing law, orpave the way for new law through activists, conference participants, politicians,diplomats and ultimately law-makers.

Of course, not all writers who could be listed in this context, have seen them-selves as potential social reformers. Many of them were, or are, content to reflectupon a certain state of affairs from an ironic or realistic perspective. In fact, ourfirst examples are works from the early 18th century encapsulating a spirit of criti-cal satire.

2. PERSIAN LETTERS

Baron de Montesquieu (1689-1755) is best known as a political theorist and pro-ponent of the separation of powerstheory as a mechanism opposing despotismand supporting the rule of law.10 However, his first book was in the field of belles-

lettres; it was calledPersian Letters(Lettres persanes) and published anonymouslyin Holland in 1721. It is a novel about two Persian noblemen who travel to Europein search of wisdom and write letters to their wives and eunuchs at home and tofriends in France and elsewhere. They comment on the cultural differences be-tween East and West, and in doing so reveal a great deal about Oriental polygamy,eroticism and sensuality, the latter no doubt being the main reason for the commer-cial success of the book.

Elaboration on matters of law was also a main theme in Montesquieu s book,although he and his contemporaries used the concept of law in a loose sense and

freely included a number of political issues. In one letter, from

Usbek to Rhedi, atVenice, international law is discussed and said to be better known in Europe thanin Asia. Nevertheless, the general conclusion is that its principles have been cor-rupted. In what may well be an implicit criticism of Machiavelli and his followersthe following observation is made:

In its present state, this branch of law is a science which explains to kings how far theycan violate justice without damaging their own interests.11



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This pessimistic outlook is modified somewhat in the next letter where it is saidthat while judges are needed to administer justice between individuals, this is notnecessarily the case between states. Each nation itself has to administer justice inits relations with other states.

Between nations it is seldom necessary to have a third party to act as a judge, becausethe matters in dispute are almost always clear and easy to settle. The interests of twonations are usually so distinct that in order to make a just decision it is only necessaryto love justice.12

Entering into the area ofjus ad bellumthe Persian letter writer notes that there areonly two cases in which war is just: first, in order to resist aggression of an enemy,and second, in order to help an ally who has been attacked.13 He further notes thatconquest in itself confers no rights. In commenting upon the treatment of the po-pulation in a conquered territory, he enters into the field of jus in bello. If thepopulation is destroyed, or scattered, it is a monument to tyranny. It is true thatnature has established different degrees of power and weakness among men, but atthe same time nature has often made the weak equal to the powerful through thestrength of their despair. The implicit conclusion is that normative power protectshelpless civilians.

This, Rhedi, is what I call international law; this is the law of nations, or rather ofreason.14

Although limited, the discussion of the law of warfare is very much in the traditionof Hugo Grotius, not a description oflex lata,but rather a discussion de lege fer-endainfluenced by natural law.In another letter from Usbek to Rhedi the issue ofparticularly inhumane weapons is addressed:

You say that you are afraid of the discovery of some method of destruction that is

crueller than those which are used now. No, if such a fateful intervention came to bediscovered, it would soon be banned by international law; by the unanimous consent ofevery country the discovery would be buried. It is not in the interest of rulers to makeconquests by such means; they ought to look for subjects, not territory.15

On another occasion, Usbek writes to an unknown person and recounts a conversa-tion between a muslim and a cannibal. On the face of it, the conversation revealsdifferences of culture, but the core of the story conveys a humanitarian based cri-tique:

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It is very cruel of you, said the muslim, to eat your prisoners of war.What do you do with yours?the cannibal replied.We kill them; but when they are dead we dont eat them.

In his letter, Usbek then reflects on this difference in attitudes:

Is it really worth it, for such a minor detail, to distinguish ourselves from the savages?We see barbarity in habits (of others) which are virtually without significance, and fail tosee it (in our own behaviour) when every rule of humanity is violated and every feelingof pity ignored.16

The conclusion is normative. Any legal dimension expressed here isde lege feren-daoriented, although Westerninternational law at the time (or rather natural lawas interpreted by European writers) prohibited the slaughter of prisoners of war.17

Montesquieu was 31 years of age when he wrote Lettres persanes. It was an-other generation (27 years) before his great masterpiece on political theory DelEsprit des Lois saw the light of day. This work included a section on the protec-tion of prisoners of war. Montesquieu noted that all nations of the world condemnmurder in cold blood by soldiers once combat has ended.18

3. GULLIVER

S TRAVELSIn London in 1726 Travels into Several Remote Nations of the World, In FourParts, By Lemuel Gulliverwas published anonymously by the Irishman JonathanSwift (1667-1745). The book immediately caught the publics imagination and itwas read, as one commentator put it, from the cabinet council to the nursery.19

Swift offered his views on humanity by using the fable as a model, a methodwhich made the text accessible to wide audiences. Over time Gullivers Travels


16. Ibid., p. 299. The text within parenthesis is added for clarification. The quoted text was notpublished in any edition of Montesquieus book during his lifetime. Together with other Persianletters and textual fragments that surfaced after his death it was published in the Revue dhistoirelitteraire de la Francein 1965. Seesupran. 11, p. 285.

17. This is the conclusion to be drawn from the works of Pierino Belli (1563), Alberico Gentili(1598) and Hugo Grotius (1625). See P. Belli, De Re Militari et Bello Tractatus, in James BrownScott, ed., Classics of International Law(Oxford, Clarendon Press 1936) p. 86; A. Gentili, De Jure

Belli Libri Tres, in Classics of International Law (Oxford 1933) Book II, Chapter XVI, p. 209; andGrotius,De Jure Belli ac Pacis, Libri Tress,in Classics of International Law(Oxford 1925) Book III,

pp. 690-696. However, Grotius distinguished between natural law and volitional law. He admitted thatthe latter, i.e., customary law flowing from state practice, did not protect prisoners of war in any

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has become a childrens classic in abbreviated versions, but it is, of course, muchmore than a story for kids. Jonathan Swift was a man that lived and breathed poli-tics and Gullivers adventures convey sharp criticism of governments and worldconditions in a comic, but thought-provoking and satirical manner. Thus, the poli-tical satire of Swift goes far beyond the nursery dimension of innocent fun. Thenarratives depiction of the countries of Lilliput and Brobdingnag demonstrated acapacity to disturb readers, as had Thomas Mores earlier depiction of Utopia. In asense, More was a forerunner to Swift, and Swift recognized as much. At the be-ginning of the book there is a reference to the inhabitants of Utopia and later thereis a mention ofSir Thomas More.20

In Lilliput Gulliver is in a position to prevent a foreign invasion by approachingthe enemy island (and country) of Blefuscu and snatching away its miniature fleet.The emperor of Lilliput then sees the possibility, with further help from his giantguest, to crush the enemy completely, but by this stage Gulliver thinks it is time forpeace instead of war. In Gullivers own words:

I endeavoured to divert him from this design, by many arguments drawn from policyas well as justice; and I plainly protested, that I would never be an instrument of bring-ing a free and brave people into slavery.21

Although this position was supported by the wisestpolitical advisers, Gullivers

thinking

was so opposite to the schemes and politics of his Imperial Majesty, thathe could never forgive me.22

Later, when Gulliver finds himself in the country of the Houyhnhnms, he ex-plains (to their leader) the causes of war in European state practice:

Sometimes a war is entered upon, because the enemy is too strong, and sometimesbecause he is too weak.Sometimes our neighbours wantthe thingswhich we have, orhave the things which we want; and we both fight, until they take ours, or give ustheirs.23

Gulliver here shows a realistic indifference to the argument of policy and justicethat was so important to him in Lilliput. This matter-of-fact approach also pervadeshis description of the effects of war on combatants:

And, to set forth the valour of my own dear countrymen, I assured him [the Hon-yhnhnm leader], that I had seen them blow up a hundred enemies at once in a siege, and

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as many in a ship; and beheld the dead bodies drop down in pieces from the clouds, tothe great diversion of all the spectators.24

Gulliver displayed the same kind of attitude when he, on an earlier occasion, foundhimself in the country of giants where he was perceived as an insect and felt theneed to ingratiate himself with the king. Therefore, he told the king of Brobding-nag about the invention of gunpowder, described its usefulness in warfare (itwould tearhouses to piecesand divide hundreds of bodies in the middle25), andoffered to lead a project to construct such a weapon.

The king was struck with horror at the description I had given of those terrible engines,and the proposal I had made. He was amazed how such so impotent and grovelling aninsect as I could entertain such inhuman ideas, and in so familiar manner as to appearwholly unmoved at all the scenes of blood and desolation, which I had painted as thecommon effects of those destructive machines; he would rather lose half his king-dom, than be privy to such a secret; which he commanded me never to mention anymore.26

For humanitarian reasons the author, Jonathan Swift, is obviously appalled bywhat war does to people, but his approach is pacifist and does not indicate anysubstantial interest injus in belloperspectives. It would be logical for him to argue

along the lines ofjus contra bellum, but elsewhere in the text he is strongly scep-tical about law as practiced and possibly about law as a whole. At one point Gulli-ver is asked by the Houyhnhnm leader to explain the meaning of the concept oflaw.

I said there was a society of men among us, bred up from their youth in the art ofproving by words multiplied for the purpose, that white is black, and black is white,according as they are paid. To this society all the rest of the people are slaves. 27

Although this is a reference to lawyers acting within a national legal system, Gulli-ver also expresses views with a wider application which could be valid for publicinternational law.

It is a maxim among these lawyers, that whatever hath been done before, may legallybe done again: and therefore they take special care to record all the decisions formerlymade against common justice, and the general reason of mankind. These, under the



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name ofprecedents,they produce as authorities to justify the most iniquitous opinions

28

However, there is nothing to suggest that Swift took an interest in international lawas such, and he did not get closer to the field of humanitarian law applicable inarmed conflict than indicated by the quotations above.

4. VOLTAIRE AND ROUSSEAU

In his early career, Monsieur Francois Marie Arouet, or Voltaire (1694-1778) as hecalled himself, was forced to live as a political refugee in England. Not surpris-ingly, he came to admire the political freedom and religious tolerance of that coun-try. Back in France he published Lettres philosophiques sur les Anglais (1733), abook which was considered a threat to state security and was burnt on the orders ofLouis XV the following year. Voltaire became famous as a champion for freedomof expression and as such is part of the history of human rights.

In 1731 Voltaire had the opportunity to comment on the emerging law of war-fare in his Histoire de Charles XII. In dealing with the Great Northern War, Vol-taire describes cases of extreme cruelty by both Swedish and Russian troops, forexample the Swedish slaughter of Russian prisoners of war after the battle of

Fraustadt (1706) and the Swedish burning of the city of Altona (1713). However,the author does not relate these or other incidents to prevailing legal norms,although he obviously found the atrocities mentioned morally reprehensible asthey were not motivated by military necessity.29

In 1759, Voltaire published his best known work, the brief and somewhat bizarrenovelCandide.The book is a satire revolving around the ideas of the philosopherDr. Pangloss and his young travelling pupil Candide. Panglosstheory, which ob-viously in Voltaires view mirrored religious thought, is that all is for the best inthe best of all possible worlds. The drastic events depicted in the book constantly

illustrate the absurdity of this theory. In the beginning of his journey Candide findshimself in a war between Abaria and Bulgaria (Abaria probably being a referenceto Prussia).

The two armies were unrivalled for smartness of drill and turn-out, excellence of equip-ment and soundness of tactical disposition To start with, the artillery lay low about six thousand men on either side. After thatmusket fire rid this best of all possible worlds of some nine to ten thousand men of thescum of its surface

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Candide shuddered, as a philosopher well might, and did his best to hide himself duringthe heroic butchering Passing over heaps of dead and dying, he came to a neighboring village. It was in ashes,having been an Aberian village and therefore burnt, in accordance with the laws of war,

by the Bulgarians. Old men mangled by bayonets watched their wives dying withgashes in their throats, clasping their children to their blood-stained breasts. Among thedying were girls who had been used to satisfy a number of heroesnatural needs, andhad afterwards been disembowelled. Other women, half burnt alive, begged to be putout of their pain. The ground was covered with brains, arms and legs.

As fast as he could, Candide made off to another village. This one was Bulgarian, andthe Abarian heroes had treated it in the same way.30

The matter-of-fact proposition that these events were all in accordance with thelaws of war could either be seen as an expression of ironic realism (indicating thefutility of legal norms in warfare), or as pacifist and humanitarian criticism of theabominable practices of war (indicating the pressing need for legal development).Perhaps the intention was to highlight both perspectives to some extent. The matterwas not reverted to or clarified later in the book.

Candidewas written at Voltaires estate in Ferney, close to the Swiss border and

today

s

capital of international humanitarian law

, the city of Geneva. A famouscitizen of Geneva was Voltaires contemporary and intellectual competitor, Jean-Jaques Rousseau (1712-1778). The two giants in the history of ideas died the sameyear.

There is no doubt that Rousseau has contributed more to the philosophical basisof international humanitarian law. His distinction between state and citizens talliedwell with Henry Dunants later project to protect the victims of war through inter-national agreement.

Rousseau published his Du Contrat Socialin 1762. In brief passages he argued

that a state of war implies hostilities between combatants as state agents, but thatcivilians should be protected since they were outside the scope of the inter-stateconflict. States may be natural enemies, but individuals are not.

War, then, is not a relation between men, but between states; in war individuals areenemies wholly by chance, not as men, not even as citizens, but only as soldiers; not asmembers of their country, but only as its defenders.31

Obviously, Rousseau was not in a position to imagine the concept of total war, but

he caught the spirit of the later Red Cross principles. He criticized Hugo Grotius



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for not being progressive enough regardingjus in bello.Grotius saw humanitarianconstraints in warfare as something exclusively within the domain oflex ferenda,while Rousseau pointed to existing law, a legal regime underwritten by reason.He concluded:

Since the aim of war is to subdue a hostile state, a combatant has the right to kill thedefenders of that state while they are armed; but as soon as they lay down their weaponsand surrender, they cease to be either enemies or instruments of the enemy; they becomesimply men once more, and no one has any longer the right to take their lives. It issometimes possible to destroy a state without killing a single one of its members, andwar gives no right to inflict any more destruction than is necessary for victory.32

Other, more political, elements ofContrat Socialwould later serve as an inspira-tion to the intellectual supporters of the French Revolution, but it is unclearwhether Rousseaus message focussing on humanitarian law had any influence onthe French armies during the revolutionary wars.

5. POST NAPOLEON

The German nation, with its multiple principalities loosely held together by culture

and language, did take an interest in French literature, but there was no absorptionof the political teachings of Rousseau or other French writers. It is often said thatNapoleons victory at Jena in 1806 gave birth to a nationalistic political awakeningand an assertion of a collective right to self-determination, but generally theGerman cultural climate remained unchanged. It was dominated by an apoliticalbourgeois idealism; more specifically by classicism, romanticism and sentimental-ism.

This was the situation at the time of Schiller and Goethe. The latters tragedyGoetz von Berlichingentells of a hero from German medieval history. Goetz is a

right-minded outlaw who harbours revolutionary, but noble, feelings towards thesociety from which he is outlawed. Elements of Shakespearian drama and chivalryemerge in the story, and perhaps this was one reason why Walter Scott (1771-1832) translated it into English in 1799.

5.1 Sir Walter Scott

In 1814, the year Napoleon was dethroned and the Congress of Vienna opened,Walter Scott introduced the historical novel to European literature, and he would

later be followed by Stendahl, Victor Hugo, Tolstoy and others. Scotts novel,Wa-

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verley,was published anonymously in Edinburgh that year and was an immediatesuccess. It dealt with the Scottish uprising against England in 1745. Edward Wa-verley, a young English soldier, is sent to Scotland and meets the clansmen of theold social system in the Highlands. Before long he has shifted his allegiance to theinsurgents. The civil war is ruthless. In 1746 Scottish nationalism and Catholicismare defeated at the battlefield of Culloden. Waverley, who by this stage is some-what disturbed by the way old Scottish feudal values and clan loyalties suppresshumanitarianism, reverts politically, rejoins the rational modern orderof the Brit-ish Crown, and marries a Scottish girl.

Waverley caught its readers at an opportune moment, when the experiences ofthe French Revolution and the Napoleonic wars caused people reflect on socialchange, good governance and the lessons of history.

Scott followed up his novel with others in different historical settings. Theywere initially published anonymously and presented as being written by theauthor of Waverley. The so called Waverley novels were translated and read allover Europe, their success being explained by the new narrative mix of history,romance, violence, and chivalry. In Waverley the pretty maids of Scotland aregiven chivalrous protection during the conflict, while at the same time Scottishvillages are being burnt and looted by the English.33 In reality, the Highlanderswere also accused of plunder when they temporarily penetrated into English terri-tory. Scott, in his preface to the third edition ofWaverley,comments:

it must be remembered, that although the way of that unfortunate little [Scottish]army was neither marked by devastation nor bloodshed, but, on the contrary, was or-derly and quiet in a most wonderful degree, yetno army marches through a country inan hostile manner without some trespasses.34

In 1819 Scott publishedIvanhoe(set in late 12th century England) and allowed thenorms of chivalry, in a wider sense, to play a substantial part. The hero himselfsees chivalry as the pursuit of glory in combat. The fair maidenRebecca, who is

imprisoned with Ivanhoe in a Norman castle under attack by Saxons, is not contentwith this bellicose explanation and wants a more humanitarian approach. When theattackers, who are the presumptive rescuers of the prisoners, hurl the defenders


33. During the occupation of a Scottish village an English officer is described as a gentleman and[in relation to his own soldiers] a disciplinarian. He, in the words of the author, neither intrudedhimself on Miss Bradwardine, whose unprotected situation he respected, nor permitted his soldiers tocommit any breach of discipline. Sir Walter Scott, Waverley(Oxford, Oxford University Press 1998)

p. 307.

34. Ibid., pp. 344 et seq. In Scotts later historical novel Rob Roy(1818) dealing with the Jacobiterising of 1715, the laws of warare referred to as a license to kill prisoners, while in another context iti id b E li h ffi ( l S i h ) h W k


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into the moat Rebecca exclaims: O men, if ye be indeed men, spare them that canresist no longer!. Ivanhoe does not respond to this, but later he expands on thelaws of chivalryand includes among the noblest aspirations of knights, the protec-tion of the weak:

Chivalry! why, maiden, it is the nurse of pure and high affection the stay of theoppressed, the redresser of grievances, the curb of the power of the tyrant35

The castle is taken. Scott tells us thatmost of the garrison resisted to the uttermostfew of them asked [for] quarternone received it.36 But the knight De Bracy istaken prisoner, is treated well, and is released at the end of active hostilities, toborrow a phrase from modern international humanitarian law.37

5.2 Clausewitz and his time

The same year as Walter Scott died in Scotland, a work of military philosophy,built upon personal experiences of the Napoleonic wars, was published in Ger-many. The author was Carl von Clausewitz (1780-1831), a Prussian officer whohad served in Russia in 1812 and ended his career as a director at the MilitaryAcademy in Berlin. He had struggled for years with the manuscriptVom Kriege(On War), which was edited and published by his wife the year after his death. His

wartime experiences and personal reflections made him a proponent of politicaland military realism. It is an understatement to say that he was more influenced bythe military strategy of Napoleon than by the political teachings of Rousseau. Thelatters views on the constraints of international law on armed conflict left no mark.

As early as the first page of Chapter I in Vom KriegeClausewitz dismisses, notthe existence, but the relevance of international law to inter-state armed conflict:

Self-imposed restrictions, almost imperceptible and hardly worth mentioning, termedusages of International Law, accompany it [war] without essentially impairing its

power.

38

Clausewitz is famous for his thesis that war is merely the continuation of policyby other means,39 which conveys the idea of the normality of war in relations

O. Bring 15

35. Sir Walter Scott,Ivanhoe(London, Penguin Classics 2000) pp. 247 and 249.36. Ibid., p. 266.37. Cf., Art. 118, Geneva Convention III, 1949: Prisoners of war shall be released and repatriated

without delay after the cessation of active hostilities.In his novels Scott had no opportunity to relate

combat descriptions to the practices of the Napoleonic wars. He may have done that within the frame-work of his nine volumes on The Life of Napoleon Buonaparte(1827).

38 C l Cl i O W A R d (L d P i B k 1968 d 1982)


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between states, the very opposite of modern international law where peaceful co-operation and conflict prevention are basic tenets. Clausewitz was not aware of anynormative constraints regarding jus ad bellum.In relation to jus in bellohe arguesthat even if wars between civilized nations are far less cruel and destructive thanwars between savages,40 such differences are related to social conditions whichare irrelevant to the need for maximum protection of military power in war:

these things do not belong to War itself; they are only given conditions; and tointroduce into the philosophy of War itself a principle of moderation would be an ab-surdity.41

According to Clausewitz the national interest is paramount; it requires power and,if necessary, a strategy aimed at the total destruction of the enemy forces.

Therefore, if we find that civilized nations do not put their prisoners to death, do notdevastate towns and countries, this is because their intelligence has taught them moreeffectual means of applying force than these rude acts of mere instinct. The invention ofgunpowder, the constant improvement of firearms, are sufficient proofs that thetendency to destroy the adversary which lies at the bottom of the conception of war is inno way changed or modified through the progress of civilization.42

The interesting thing about this passage is that although it dismisses humanitariannorms as being of no consequence, it is not inconsistent with the idea of militarynecessity balanced by humanitarian needs. As Anatol Rapoport noted, it is prob-able that Clausewitz never envisaged totalor absolutewar (terms he used) in-cluding the slaughter of civilian populations. Even in his absolute war theory hesaw slaughter confined to the battlefield.43 As Clausewitz pointed out: War is noact of blind passion, but is controlled by its political object.44

What then was the legal position of war and warfare during Clausewitz life-time? Immanuel Kant, who was read by Clausewitz, concluded in his famousPer-

petual Peacethat only

reason

and

moral legislative power

prohibited wars ofaggression. The decision to resort to war was still the prerogative of cabinetpolicy.45 Kant died in 1804 but his conclusions remained valid for most of the19th century. He never articulated any views on humanitarian restrictions in war-fare.


40. Ibid., (the 1993 Howard/Paret edition) p. 84.41. Ibid., (the 1982 Rapoport edition) p. 102.

42. Ibid., (the Rapoport edition) p. 103.43. Rapoport in his introduction to the 1968/1982 Penguin edition, p. 62.44 Ibid 125 H h l f h i f ll h H d/P l i f


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In a recent study it has been suggested that the traditional contractual picture ofwar, as a duel between two sides, paved the way for the idea of codes of conduct inthe practice of war. The general principle of military necessity was supposed tocoexist with specific rules of humanity.46 The civilian population was barred fromparticipating in hostilities and consequently safeguarded from attack if it remainedpassive. However, no codification of such norms followed the Napoleonic wars.The Congress of Vienna produced nothing on these matters, but when J.-L. Klberpublished his Droit des gens moderne de lEuropein 1819 he included an embryo-nic doctrine for a future law of warfare.

5.3 Stendahl and Dumas

Returning to the field of fiction, the French author Marie-Henri Beyle (1783-1842), better known as Stendahl, included a famous scene from the Battle ofWaterloo in one of his novels. As a young man the future writer was commissionedinto the French Army in an administrative function, and he took part in Napoleon sdisastrous Russian campaign of 1812. Stendahls most successful work of fictionwas Le rouge et le noir(1831), but here I will focus on his other masterpiece, thehistorical novel La Chartreuse de Parme(1839). It is often referred to in politicalwriting about war, since the brief battle scenes from Waterloo convey a picture ofconfusion and chaos, a characteristic feature of many military campaigns.

In The Charterhouse of Parmathe young Italian Fabrizio, an admirer of Napo-leon, is determined to join the army of his hero. In 1815, he more or less stumblesupon the battlefield south of Brussels and later finds himself on horseback. One ofthe scenes portrays an almost instinctive humanitarian concern for fallen enemiesas fellow human beings.47 Fabrizios unit gallops into a field strewn with corpses.

The redcoats! The redcoats! the hussars of the escort shouted joyfully, and at first Fab-rizio did not understand. Finally he observed that, indeed, nearly all the corpses weredressed in red. One detail made him shudder in horror. He observed that many of these

unfortunate redcoats were still alive. They were crying out, manifestly asking for suc-cour, and no one was stopping to give them any. Our hero, very humanely, took allpossible care to stop his horse from treading on any redcoats. The escort halted. Fabri-zio, who was not paying sufficient attention to his soldierly duty, kept on galloping, hiseye still on some wounded unfortunate.48

O. Bring 17

46. See S.C. Neff, War and the Law of Nations, A General History(Cambridge, Cambridge Uni-versity Press 2005) pp. 186-190.

47 A h l b difi d f i i l h i i l Cf A


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A few years after Stendahls book came out, Alexander Dumas (pre) publishedThe Three Musketeers(1844). Dumas was inspired by the historical nationalism ofScott, but he aspired to a different style of narrative, less elaborate and more direct.Not surprisingly, his classical work of adventure (one for all, and all for one)contains elements of chivalry. However, the following quotation from the bookgoes beyond that. The year is 1627 and the musketeers have joined the royalforces in the siege of the rebellious town of La Rochelle, the last stronghold of theHuguenots. Outside the walls of the city a party of rebel soldiers and workersapproaches our heroes. The workers are carrying picks and shovels.

They havent seen us yet, said Athos. Wait till they see us.I must confess I dont like the idea of firing on a lot of untrained civilians, said Aramis.

I agree with Aramis, said Athos. Im going to give them a chance to go away.What on earth are you doing?cried dArtagnan. Dont show yourself like that! Youllget shot!No I wont ,said Athos.Whereupon he sprang into the breach in the wall, holding his gun in one hand and hishat in the other, and began addressing the oncoming party.Gentlemen,he called, 49

This chivalrous behaviour, partly based on a spontaneous acceptance of the princi-ple of distinction in warfare, did not prevent the musketeers from being shot at.

5.4 Victor Hugo

The Battle of Waterloo was revisited by Victor Hugo in his epos Les Misrables(1862). Hugo describes how at the end of the battle, when the French catastropheis a fact, traditional humanitarian norms protecting soldiers who have surrenderedare not respected. A French officer gave an order to the effect that he did not accept

the taking of any Prussian prisoners. At about the same time the Prussian Com-mander-in-Chief, Blcher, ordered that no man was to be spared. The French gen-eral Duhesme gave himself up to a Prussian hussar and offered his sword in tokenof surrender. The hussar took the sword and killed him. Hugo concludes:

To the dishonour of old Blcher, victory was crowned with murderlet us punish, forwe are history.50


49. Alexandre Dumas,The Three Musketeers, translated by Lord Sudley in 1952 (London, PenguinCl i 1982) 524


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In another passage Hugo refers to crimes on the battlefield, namely looting afterthe end of hostilities. Even if most generals on both sides prohibited plunder andtried to stop it, it still occurred.

Nevertheless, the bodies of the dead were robbed during the night of 18-19 June. Well-ington was uncompromising; any person caught in the act was to be shot forthwith. Thelooters preyed on one end of the battlefield while they were being executed at the other.The moon shed a sinister light over the plain.51

Although Hugo broached these matters from the implicit perspectives of moralityand martial law, he was aware of the existence of an international law of warfare.That becomes clear when he describes how the English, before the battle, prunedtrees, thickets and bushes to create holes behind which their guns waited inambush an entirely legitimate stratagem of war, as the author explained tohis readers.52

6. TOLSTOYS WAR AND PEACE

As a young man Leo Tolstoy (1828-1910), having unsuccessfully studied law atthe University of Kazan, joined the Russian Army in the Caucasus, which was

tasked with suppressing Chechen and other rebels. The Caucasus experience in-spired Tolstoy to write some of his early short stories about rural Cossacks andcommon soldiers.

In 1854, during the Crimean war, he served in the beleaguered city of Sevasto-pol. His threeSevastopol Stories, published in 1855-1856, were important realisticliterature and gave a credible psychological picture of soldiers under the pressureof constant bombardment. The undercurrent was political and polemical, indicat-ing the meaningless of slaughter of combatants and the futility of war.

A few years later Tolstoy started working on his massive epos War and Peace,

which was published in 1869. The novel retells the story of Napoleon

s war againstRussia and places the lives of individuals and families in the tide of historicalevents. Again, Tolstoy depicts military operations and the effects of war withearthy realism. Although indications of what we would today call war crimes arescarce, other crimes are common in the narrative. Retreating Russian soldiers loottheir own people and French soldiers, having occupied Moscow, loot houses,shops and wine cellars. However, as aristocrats, French officers mostly behave asgentlemen, and consequently, women, refugees and prisoners are generally welltreated.

After the Battle of Austerlitz, Prince Andrei Bolkonski is found unconscious onthe ground. He moves a little. Napoleon Bonaparte looks at him from his horse.

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Ah! He is alive, said Napoleon. Lift this young man up and carry him to the dressingstation.53

And later the Emperor talks to some of the wounded prisoners, including a PrinceRepnin, and tells one of his officers:

Have these gentlemen attended to and taken to my bivouac; let my doctor Larrey ex-amine their wounds. Au revoir, Prince Repnin,and he spurred his horse and gallopedaway.54

These pictures of chivalry and human respect are somewhat counter-balanced byTolstoys later rendering of discussions in the Russian camp on the eve of the battleof Borodino. The French forces are now close to Moscow. By 1812 Carl von Clau-sewitz and other Prussian staff officers had entered Russian military service, andTolstoy relates a conversation between Clausewitz and the others. Their point isthat the war must be expanded to be won, expanded over a wider area. No consid-eration whatever can be shown for the interests of individuals.55

In the same camp Prince Andrei Bolkonski explains how he would like to con-duct the war, if he had the decision-making power:

I would not take prisoners. Why take prisoners? Its chivalry! The French have de-stroyed my home and are on the way to destroy Moscow They are my enemies. Inmy opinion they are all criminals They should all be executed!

Prince Andrei also holds the paradoxical view that the ruthless practice of nottaking prisoners would make war less cruel. The argument is not perfectly clear,but he probably means that such practice would limit the duration of hostilities. Inaddition, he argues that such ruthlessness would prevent the outbreak of many un-necessary wars. These arguments go hand in hand with bitter criticism of anyjus inbello:

They talk to us of the rules of war, of chivalry, of flags of truce, of mercy to the unfor-tunate, and so on. Its all rubbish. I saw chivalry and flags of truce in 1805; they hum-

bugged us and we humbugged them. They plunder other peoples houses, issue falsepaper money, and worst of all they kill my children and my father, and then talk of rulesof war and magnanimity to foes. Take no prisoners, but kill and be killed!56


53 L T l W d P i h l i f 1920 b L i d A l M d (W


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The reader knows that Prince Andrei has his own reasons for being bitter, but histhoughts on the futility of rules are also a reflection of Tolstoys views on historyas being dictated by fate and providence. Tolstoys view was that historical eventsare not shaped by individuals, but by a general process of necessity. The manifes-tation of individual will, such as Napoleons order that no plundering should takeplace in Moscow, is futile. What happens, happens. The nature of war is such thatindividual humanitarian action cannot temper its brutal inevitability. Prince Andreishares this view and Tolstoy makes him argue, partly in keeping with Clausewit-zian thinking:

War is not a polite recreation but the vilest thing in life, and we ought to understand thatand not play at war. We ought to accept this terrible necessity sternly and seriously. It

boils down to this: we should have done with humbug, and let war be war and not agame.57

Furthermore, possibly affected by his bitter experience of loss of love and property,he goes on:

The aim and end of war is murder, the methods employed in war are espionage, treach-ery and the encouragement of treachery, the ruining of a country, the plundering androbbing of its inhabitants for the maintenance of the army, and trickery and lying whichall appear under the heading of the art of war.58

Tolstoy himself did not necessarily agree with all of this. He thought that war couldbe patriotic, and as an author he wanted to inspire feelings of solidarity and pro-vide some moral lessons. He probably envisaged War and Peace as a nationalepos. However, his theory that the life of nations and humanity are linked to un-avoidable processes and providence, also limited his argument that individualaction could make a difference and that humanitarian action was meaningful.

However, at the end of the novel, the history of nations momentarily merges

with the idea of humanitarianism. This happens when the Commander-in-Chief ofthe Russian Army, Kutuzov, addresses and thanks his troops. Victory is nowachieved. Twenty six thousand French prisoners have been taken. Kutuzov speaksto his soldiers from his horse:

It is hard for you but at any rate you are at home, whereas they you see what they arereduced tohe said, pointing to the prisoners. Worse off than the poorest of beggars.

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While they were strong we did not spare ourselves, but now we pity them. They arehuman beings too. Isnt that so, lads?59

7. HENRY DUNANT AND SOLFERINO

Leaving behind us the literary treatment of the Napoleonic wars, and turning to thecultural and diplomatic history of the mid-19th century, it is time to note twomodern societal trends in Europe at that time: media consumption and humanitar-ianism.

During the Crimean War (1854-1856) Florence Nightingales aid to thewounded was widely reported in newspapers, in The Times and elsewhere. Therealities of war came closer to the public through foreign correspondents and theuse of photography. Philanthropical societies were established. Public opinionbecame increasingly important and cabinet policy had to be adjusted accordingly.

In Geneva the businessman and philanthropist Henry Dunant (1825-1910) in-itiated a project of international cooperation, namely the World Federation ofYoung Mens Christian Associations. Five years later he would be involved in an-other international project, the creation of what would become the Red Crossmovement. Geneva was a city where idealistic groups were formed and humani-tarian meetings organized.

On 24 June 1859 Dunant found himself at (or close to) the battlefield of Solfer-ino, Lombardy and witnessed part of the furious clash between French-Sardinianand Austrian forces during the war of Italian liberation. He was struck by the in-adequate medical services in the field. On 25 June, the day after the battle, hearrived in the small town of Castiglione where he helped organize a humanitarianoperation to care for the wounded that streamed in from the battlefield. He wasshocked by the suffering he witnessed, and it later became clear to him,60 that heneeded to shock others in order to press for humanitarian change.

Three years later Dunant had completed his slim volume Un Souvenir de Solfer-

ino, which was printed at his own expense in Geneva in 1862.

61

The book was animmediate success and it gave Dunant access to people of influence across Europe.


59. The quotation is a combination of the Maude translation (supran. 53, p. 858) and the Edmondstranslation (supran. 57, p. 1290).

60. Henri Dunant admitted that it was more than three years before I decided to put together thesepainful recollections, which I had never meant to print.A Memory of Solferino (Geneva, ICRC Pub-lications 1986), footnote at p. 73. Later, in the same footnote, he refers to the purpose of the book: if these pages could bring up the question of the help to be given to wounded soldiers in wartime,

or of the first aid to be afforded them after an engagement if they could attract the attention of thehumane and philanthropically inclined if the consideration and study of this infinitely important

bj ld b b i i b ll l d i I h ll h f ll


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It starts with a vivid depiction of the carnage on the battlefield, followed by de-scriptions of the horrifying suffering of individual wounded soldiers and concludeswith proposals for the future. The main text flows smoothly and Dunant presentsthe sequence of events with efficient rhetoric. The ideology of fraternity betweenhuman beings pervades the text, especially where he describes the attempts toassist the wounded. A classical quote is the following:

But the women of Castiglione, seeing that I made no distinction between nationalities,followed my example, showing the same kindness to all these men whose origins wereso different, and all of whom were foreigners to them.Tutti fratelli[All are brothers],they repeated feelingly.62

Although the book does not shy away from descriptions of war crimes againstcombatants and prisoners,63 more hopeful examples of human behaviour andhuman compassion dominates the picture. In a footnote, Dunant relates a procla-mation by the French General Trochu on the eve of the military campaign:

We will be disciplined, and will conform to the regulations, which I shall enforce in-flexibly. On the day of battle we will not allow the brave to be braver than us. We willnot forget that the natives of the land are our allies; we will respect their customs, their

property and their persons. We will wage war in a manner humane and civilized.64

Dunant says that the feelings of the French soldiers toward their prisoners weremostly marked by respect and even sympathy:

They were given the same food as the French officers, and their wounded were treatedby the same doctors. One of them was even allowed to fetch his belongings. ManyFrench soldiers shared their rations in a brotherly way with prisoners who were dyingof hunger; others carried wounded men of the enemy army to field hospitals on their

backs and gave them all sorts of care.65

It is tacitly understood in the book that prisoners of war were protected under ex-isting international law. A similar point is made reasonably clear concerning medi-cal units on the battlefield:

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62. Dunant,supran. 60, p. 72.63. With regard to the hand-to-hand struggle on the battlefield Dunant comments: No quarter is

given; it is a sheer butchery;(Ibid., p. 19). More obvious transgressions of humanitarian norms arerelated in the following passage: At Marignan, a Sardinian sentinel stationed in an outpost was sur-

prised by a detachment of Austrian soldiers, and they gouged out his eyes to teach him, so they said,to be more observant another time. A straggler from the Bersaglieri also fell into the hands of a band

f A i h ff hi fi d h hi f lli hi i I li G d lf


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During a battle, a black flag floating from a high place is the usual means of showingthe location of first-aid posts or field ambulances, and it is tacitly agreed that no oneshall fire in their direction. But sometimes shells reach these nevertheless, and theirquartermaster and ambulance men are no more spared than are the wagons loaded with

bread, wine and meat to make soup for the wounded.66

Dunant does not discuss these matters in terms oflex lataorlex ferenda, but in thelast dozen pages of the book, he is aware that he enters into the latter domain.Firstly, his proposal for national reform amounted to a new type of organization,namely the establishment in all countries of permanent societies of medical perso-nal for the purpose of helping wounded combatants in time of war.67 Secondly, hisproposals for international reform amounted to a cooperative project involving na-tional relief societies;68 and furthermore, to the conclusion of a multilateral treatyamong states, which would serve as the basis and support for such societies andensure an organized care of the wounded in inter-state armed conflict. 69 All thesethings would be achieved.

In 1863, Dunant and four others (the Committee of Five) privately organized aconference in Geneva, to which 19 countries and principalities sent representa-tives. The conference recommended that national relief societies be set up with thesupport of governments. In addition, the conference recommended that in time ofwar, belligerent parties declare field hospitals as protected against attacks, that si-

milar protection be extended to medical staff, voluntary helpers and the woundedthemselves and, finally, that the governments choose a common distinctive signmarking protected persons and objects.

In 1864, the Federal Council of Switzerland convened a diplomatic follow-upconference in Geneva. Representatives of 16 states participated and adopted thefirst multilateral convention on international humanitarian law in armed conflict,the Convention for the Amelioration of the Wounded in Armies in the Field. TheConvention formalized the recommendations of the 1863 conference and intro-


66. Ibid., p. 39.67. Would it not be possible, in time of peace and quiet, to form relief societies for the purpose of

having care given to the wounded in wartime to by zealous, devoted and thoroughly qualified volun-teers?Ibid., p. 115. And he went on: Societies of this kind, once formed and their permanent exis-tence assured, would naturally remain inactive in peacetime. But they would always be organized andready for the possibility of war. They would have not only to secure the goodwill of the authorities ofthe countries in which they had been formed, but also, in case of war, to solicit from the rulers of the

belligerent states authorization and facilities enabling them to do effective work.Ibid., p. 117.

68. As Dunant pointed out: If an international relief society had existed at the time of Solferino,and if there had been volunteer helpers at Castiglione on June 24, 25 and 26, or at Brescia at about the

i M V h dl d h ld h d ! Ibid 120


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duced probably as a tribute to Switzerland and the Swiss flag the sign of a redcross on a white ground as the emblem of protection.

The subsequent developments in diplomacy and Red Cross history will not bepursued here, but it should be noted that Henry DunantsA Memory of Solferinoisoften quoted as one of three written works thatchanged the world. The other twoareUncle Toms Cabin(which contributed to the abolition of slavery in the Amer-icas),70 and mile Zolas article of 1898, Jaccuse71 (which changed the course ofthe Dreyfus affaire in France at that time).

Dunants book was to be found everywhere in the years following its publica-tion in royal anterooms, in the offices of cabinet ministers, on the desks of news-paper editors and on coffee tables. Charles Dickens wrote four articles about it andVictor Hugo congratulated Dunant on his services to humanity and liberty.

8. DOWN WITH ARMS

The Crimean war generated a nationalist and militarist culture in Europe, whichwas somewhat counter-balanced (alas insufficiently) by the rise of the peace move-ment and its arbitration associations. The latter trend was fostered to a large extentby the successful Alabama Claims Arbitration brokered in Geneva in 1872.

The Swedish writer August Strindberg (1849-1912) lived in Switzerland in 1884

and was greatly influenced by the cosmopolitan atmosphere of Geneva with itspolitical refugees, peace activists and international bureaus and associations. Inthis milieu he wrote what he called hisPeace Novella. It was published in Swed-ish, Danish, German and French in 1884-1885 and in English ten years later, prob-ably under the title Remorse.The main character is a German officer in an occu-pied area of France during the Franco-Prussian War (1870-1871). He receives anorder which conflicts with his conscience, namely to execute two French resistancefighters (franc-tireurs), who, as prisoners were not protected by international lawsince they were not wearing the uniform of their home state. As the officer points

out in the story:

States go to war, not individuals!

. The execution takes place, theGerman officer literally gets blood on his boots, and leaves military service in astate of mental and psychological crisis. Strindberg implicitly criticizes the legalsituation as it was before the adoption of the first Hague Regulations of 1899. 72

The story ends on a more positive note. The officer has recovered and findshimself at a dinner party at a small hotel in Vevey on the shores of Lake Geneva(Lac Lman). It is September, 1872, and glasses of champagne are being raised to

O. Bring 25

70. Slavery was abolished in the British Empire and the French colonies before Beecher Stowewrote her book. Later it was abolished in the USA (1862, 1865), in Cuba (1881) and in Brazil (1888).I 1926 h Sl C i f G d d d h i f h L f N i


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greet the news of the successful Alabama arbitration. The dark sky over Geneva islit up by fireworks in the colours of the newly established Red Cross movement the colours of hope, signalling the advent of the principle of peaceful settlement ofdisputes. In the words of the Englishman at the dinner table: Your glasses, ladiesand gentlemen, lift them for the Red Cross, in this sign we shall overcome 73

(Strindberg did not quite appreciate the distinction between arbitrationfor peaceandhumanitarian actionin war).

Strindbergs Peace Novella was published in Vienna in 1885.74 It may havebeen read by the Austrian novelist Bertha von Suttner (1843-1914), who started totake an active interest in the peace movement at about this time.75 One of theguests at Strindbergs dinner party had wondered whether or not future wars ofconquest and reconquest could be avoided:

when Europe becomes unified one federation of states, then Alsace-Lorraine willbe neither French nor German, but simply Alsace-Lorraine; Will that be the end of theproblem?76

A similar question appears in Bertha von Suttners best-selling novel Die Waffennieder!(1889), when the issue of avoiding future wars is discussed:

Why couldnt all civilized states in Europe enter into a pact, a community with oneanother? Wouldnt that be the easiest way?77


73. Quote translated by O. Bring. Cf., August Strindberg, Utopier i verkligheten (Stockholm,Albert Bonniers Frlag 1885) p. 266.

74. It was published in Neue Freie Presse,probably under the title Gewissensqual, in translationby Mathilde Praeger.

75. In 1885, Bertha von Suttner visited Paris and, while in the house of poet and friend Alphonse

Daudet, she learned about the International Arbitration and Peace Association which had beenfounded in London in 1880. See Brigitte Haman inReport on the Symposium on the Occasion of the100th Anniversary of the Nobel Peace Prize Award to Bertha von Suttner (The Hague, CarnegieFoundation 2005) p. 12. Of course, the peace movement was older than that. At the end of the Napo-leonic era, in the second half of 1815, local peace groups were established in New York and Boston.Soon thereafter, British groups founded the Society for the Promotion of Permanent and UniversalPeace, The Peace Societyfor short, in London. On the European continent, the first peace societywas formed in December 1830 in Geneva. See for example, Michael Riemens, ibid., (Hague Sympo-sium Report) pp. 27 et seq.

76. Strindberg,supran. 73, p. 262.77. Quote translated by O. Bring from a Swedish edition, Ned med vapnen(Lund, Baltiska Frla-

get 1927) p. 159. Die Waffen nieder!, Eine Lebensgeschichtewas first published in Dresden by Pier-son Verlag (1889). Later editions in the German language were also published in Dresden (and not inVi h h li i l li b f 1918 d i i ) I L d h


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Bertha von Suttner did not intend her novel to be an artistic work. It was an anti-war book, a so-called Tendenzromane.It tells the sad story of Martha von Tilling,an Austrian lady, who lives through the wars of 1859 (where she loses her firsthusband), 1864, 1866 and 1870-1871. During the last war she loses her secondhusband (shot in Paris during the siege of the city, presumed to be a German spy).

Von Suttner did a lot of research for her novel, which allowed her to give realis-tic descriptions of the horrors of the battlefield and medical dressing-stations after-wards. The impact of the book was tremendous, the international peace movementgathered momentum and von Suttner herself became one of its champions. Shewas awarded the Nobel Peace Prize in 1905.

I will not deal with her aspirations for a future jus contra bellumhere, but focuson her views on jus in bello.In Die Waffen niedervon Suttner tells the story ofHenry Dunants book about Solferino and her alter ego, Martha, deplores the factthat Austria was not an original party to the 1864 Geneva Convention. During thePrussian-Austrian War of 1866 Austria joined the Geneva Convention and the RedCross system. In the novel Marthas father asks her:

Well, are you satisfied now? Do you realize that war, which you always labelled asbarbarism, will grow more humane as civilization advances?

Martha responds that the efforts of the Red Cross will always be insufficient. The

organization will never be able to eliminate the misery that comes with war. Herfather agrees: Not eliminate, but alleviate. What you cannot prevent must be alle-viated.Martha does not accept this argument. Her response is

it is not possible to alleviate such misery. I would like to turn your sentence roundand say: What you cannot alleviate, must be prevented.78

In other words: War per se must be prevented. Bertha von Suttner does not articu-late the standard objection to humanitarian law in war, namely that since war itself

is or should be outlawed, it is absurd to regulate something which is or should beillegal; however, she comes pretty close to this line of argumentation. It is clearthat she simply did not believe in any humanitarian law on the conduct of hostil-ities. At the beginning of Die Waffen niedera Dr. Bresser argues that as long asenmityis a living phenomenon among humans, the dictates of humanity will nothave universal application.

Von Suttner participated in the Hague Peace Conference of 1899 (as an observerand representative of the peace movement), and she was disappointed with theshift of the Conference from disarmament to humanitarian law. She probably

agreed with the British delegate Sir John Fisher, who exclaimed at one point at thebeginning of the Conference:

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Humanizing war! You might just as well talk of humanizing hell.79

Bertha von Suttner died in June 1914, a few days before Gavrilo Princip fired hisfateful shots in Sarajevo. Her last book was called Die Barbarisierung der Luft(1912), a title which signalled a fear of the coming barbarism of air warfare. Shewas not alone in her premonitions. Technological advances had raised the spectreof warfare becoming even more brutal through aerial attacks on cities and popula-tions.

9. H.G. WELLS AND THE PRINCIPLE OF DISTINCTION

During the last decade of the 19th century a British writer became famous for hisfuturistic novels in the tradition of Jules Verne. The genre of scientific romancewas developing into science fiction through such novels as The Time MachineandThe War of the Worlds.The author of these novels, Herbert George Wells (1866-1946), was going to become a prolific writer in such fields as journalism, fiction,history, science, world politics and socialism. In 1908 he published The War in theAirabout a German plot to invade the United States by aircraft and reduce NewYork to rubble by bombing. At that time, Count von Zeppelin had created hisdirigible airship and the German nation was ready to use it in power politics, but

people had yet to experience bombardment from the air.H.G. Wells was a prophetic writer with a political purpose. The War in the Airwas a warning about what can happen when technology develops more rapidlythan the capacity of statesmen to control it. Wells foresaw area bombardment andits threat to the principle of distinction between military targets and civilians. Heforecast the total war of burning cities.80 After 1914, he saw the need for inter-statecollective security and the creation of some kind of League of Nations.

The War in the Airis a literary dystopia. Bombs devastate New York City, thebig Asian powers enter the never-ending war, existing cultures are destroyed and

Western civilization collapses. The main character of the novel, the Londoner BertSmallways, finds his way home from the war and restarts his life in England. Do-mestic life for Bert and his beloved Edna is something akin to that of peasants inthe early Middle Ages. The world has moved back a thousand years.

Wells had a utopian vision of a world that had risen above the nation state, andwhere a sensible world government was in control of military science. A few yearsearlier he had published the bookA Modern Utopiawhere two travellers suddenlyfind themselves in another world, a world where the idea of justice is sacred. Wellswas writing in the tradition of Thomas More and Jonathan Swift, whose works



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included images of utopia and dystopia. Wells himself saw the two extremes asinterconnected. He wanted his tale of doom to serve as a political lesson to befollowed by the rebirth of a better world.81

In the preface to the 1921 edition ofThe War in the Air,Wells makes the pointthat air warfare alters the methods of war.82 He does not argue in legal terms, butit is clear that he envisages the collapse of the principle of distinction. In the bookthe massacre of New Yorkbecomes unavoidable when the New Yorkers them-selves spontaneously rise against the invaders. At first, the German Prince, who isthe military decision-maker, tries to limit reprisals against the civilian population.

The catastrophe was the logical outcome of the situation created by the application ofscience to warfare. It was unavoidable that great cities should be destroyed. In spite ofhis intense exasperation with his dilemma, the Prince sought to be moderate even inmassacre. He tried to give a memorable lesson with the minimum waste of life and theminimum expenditure of explosives. For that night he proposed only the wrecking ofBroadway.83

However, humanitarian concerns are of no avail another kind of logic prevails the logic of available technology.

The Prince, who was partly a caricature of Kaiser Wilhelm II, had in his conceitstarted the war for reasons of imperial expansion. When Wells published his book,

World War I was only six years away.

10. ON THE EASTERN AND WESTERN FRONTS OF WORLD WAR I

In 1915 the Czech anarchist and author Jaroslav Hasek (1883-1923) was drafted toan Austrian infantry regiment and transported by train through Hungary towardsthe Russian front in Galicia. The same happened to the good soldier Svejk, thefamous little mancharacter in the anti-war novel that Hasek started to write after

the war and his return to the new Republic of Czechoslovakia. Hasek had a wealthof wartime experiences to draw from in his brief literary career. He was takenprisoner in Galicia in September 1915 and spent time in a Russian prisoner-of-warcamp; he was released because of his pro-Russian sympathies, becoming a traitorto the faltering Austrian-Hungarian empire he joined the Red Army, became amember of the Bolshevik party and returned to Prague as a social democrat inDecember 1920.

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10.1 The soldier Svejk

Hasek soon started writingThe Good Soldier Svejk and his Fortunes in the WorldWar.The first volume was published privately in late 1921. It was an immediatesuccess and a commercial publisher was ready to take over the financing of theremaining volumes. Hasek bought a cottage in the East of the country, where hestarted to dictate volumes 2-4. However, his irregular life style had taken its tolland he died in January 1923. The uncompleted text had reached more than 700pages.

Svejk is an Everyman, an ordinary citizen adapting to the most difficult situa-tions. He believes in law and order and is a supporter of military discipline, but heis full of human feeling and compassion. He is (to use a modern expression) streetwiseand often speaks in double-talk. In dealing with his superiors he masks histrue feelings, and although his remarks are often loaded with irony, he has a way ofexplaining matters so as to avoid retribution.

At one point, when his military train is stuck in Budapest, Svejk takes a walkbehind the railway station. He is looking at a placard for a war lottery, showing anAustrian soldier bayoneting a wide-eyed bearded Cosack, pinning him to a wall.Lieutenant Dub comes by, realizes that Svejk does not like the placard and askshim why.

What I dont like about this placard, sir, is the way that the soldier there handles thearms entrusted to him. You know, he could easily break the bayonet on the wall andanyhow the whole thing is quite unnecessary. He would be court-martialled for it, be-cause that Russian has his hands up and is surrendering. He s been taken prisoner and

prisoners have to be treated decently, because after all they are human beings too.84

The lieutenant is disturbed by Svejks answer and asks him: So, I suppose youresorry for that Russian, arent you?

I am sorry for both of them, sir, for the Russian because he

s spiked and for the soldierbecause hell be gaoled for it. You know, sir, he certainly must have broken his bayonetin doing it. it looks like a stone wall where hes thrusting his bayonet, and steel is

brittle.85

This time Svejk avoids repeating the argument for humane treatment of prisoners,although it may be implied in his remark about the soldier being jailed for hisbehaviour. At this point in the discussion, Svejk obviously realizes that it is saferto focus on his other argument. The reader understands this and is confident that

Svejk has not abandoned his basic humanitarian (law?) position.



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Haseks novel is written as a non-stop comedy, but with ever-present undercur-rents of serious reflection and political criticism. On another occasion Svejk iswrongly suspected of stealing a hen from Hungarian farmers. Lieutenant Luks isextremely upset, knocks the hen out of Svejks hands and shouts:

Do you know Svejk, what a soldier deserves who in wartime robs the peaceful popula-tion?Honourable death by powder and lead, sirSvejk answered solemnly.Its the rope you deserve, of course, Svejk, because it was you who first started to

plunder. You scoundrel Youve forgotten your oath.86

Svejk answers that he has not forgotten his oath to be brave and patriotic andalways to conduct myself as the army laws demand and as befits a good soldier.In fact, Svejk wanted to pay for the hen and was innocent.

There are other passages, on the requisitioning of pigs, for example, whereHasek obviously supports the principle of respect for the property of the civilianpopulation. In other cases there is implicit criticism of the brutal behaviour towardscivilian prisoners, achieved through an almost nave, matter-of-fact account of theinhuman acts. When gendarmes round up Ruthenian prisoners, beat them andforce one of them to dance a czardas, an Austrian officer intervenes and orders theprisoners to be moved to an empty barn. Hasek writes:

There they were to be beaten and pounded without anyone being able to see it. Thisepisode was a topic of conversation in the staff carriage and generally speaking most ofthe officers condemned it. 87

The author occasionally demonstrates some knowledge of the law of warfare. Inone passage the battalion historian envisages how he might later record an imag-ined attempt to blow up an enemy train by soldiers dressed in peasant clothing. Inhis scenario one of the soldiers is captured.

Since he was in disguise he was condemned to be hanged as a spy, but in view of hishigh rank the sentence was commuted into one of death by shooting.88

Hasek is aware that prisoner-of-war status will not be granted to combatants dis-guised as civilians.

In the novel, the protected status of Red Cross medical units is taken for granted.On one occasion, close to the battle front, a Red Cross train is seen down in astream. It had plunged down the railway embankment and was smashed to pieces.

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The Austrian soldiers in a passing train were disturbed and excited. What, is itallowed to fire at Red Cross vans?, one of them exclaimed.

Its not allowed, but it can be done, said Svejk. It was a perfect shot and they willapologize afterwards, of course, and make the excuse that it was night time and the redcross couldnt be seen. There are lots of things in the world which are not allowed to bedone but can be done.89

This somewhat disturbing view of the implementation of international humanitar-ian norms, should be balanced by another exchange of views at the end of thebook. In the battalion historians scenario mentioned earlier, the soldier disguisedas a peasant was to be executed. Before his execution, he played cards with theenemy officers guarding him, won a lot of money and as he stood with the Russianfiring squad before him, he bequeathed the money to the Russian Red Cross. In thenovel, this fictional turn of events gave rise to some comments. One volunteer toldhis comrades:

I had been considering whether it shouldnt perhaps be given to the Austrian RedCross, but in the end I assumed that from the humanitarian point of view it was all thesame, provided it was given to some humanitarian institution.90

For once, it seems Hasek avoided satire and comedy, left aside the theme of thefutility of war, and reflected upon the humanitarian legacy of Henry Dunant.

10.2 In the trenches

With its focus on the harrowing realities of war, the most famous novel on WorldWar I is of course All Quiet on the Western Front,91 written by the former Germansoldier Erich Maria Remarque (1899-1970). It was first published in Berlin in1929. The story of how a group of young German soldiers experience the horrors

of trench warfare is in fact the classic anti-war novel. The brief text conveys astrong message without being persuasive. Stefan Zweig has remarked that it is aperfect work of artthat mirrors a truth that cannot be doubted.92

It seems uncommon in memoirs or novels aboutthe Great Waron the Westernfront to relate to issues of legal restraint and war crimes. Trench warfare was whatit was, and the behaviour of both sides was basically the same. Remarque does not


89. Ibid., p. 611.90 Ibid 613


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tables. After 1907, the Martens Clause on the dictates of public consciencecouldarguably be said to condemn the use of such bayonets, but similarly, individualreprisals, in the manner described above, would also stand condemned.

Turning to the treatment of prisoners-of-war, Remarques book contains someperhaps more reassuring passages. The text suggests that life in German POWcamps was harsh, but that as a matter of policy prisoners were not mistreated. TheRussian prisoners in the camp described may be constantly on the look-out forextra food, but so are the German soldiers themselves. The POW camp is locatednext to a military training camp and the prisoners are able to move around and begfor food. The narrator (Paul) describes the irritation among German soldiers, whichsometimes leads to transgressions of humanitarian standards:

Some of the men kick them so that they fall overbut only a few do that. Most donthurt them, they just walk past them. Occasionally, when they are especially persistent, itis true, you do lose your temper and give them a kick.96

Remarque was called up for military service in November 1916 and sent to thefront the following year. He was soon badly wounded and spent some time in amilitary hospital. When the war ended he was an instructor in a military camp.Obviously, his own experiences gave him rich background material for the novel.Following Hitlers rise to power in 1933 the Nazis claimed thatIm Westen nichts

Neueswas a betrayal of the German front-line soldier and Remarque

s books wereburnt, along with the works of many others. By this stage Remarque had moved toSwitzerland and he later emigrated to the USA.

Some of the works of Ernest Hemingway (1899-1961) dealt with the Southernfront of World War I, between Italy and Austria. This is particularly true in hisnovelA Farewell to Arms(1929). However, apart from the role of Red Cross units(Hemingway volunteered as an ambulance driver in Italy in 1918), this book doesnot include any aspects of international humanitarian law. Hemingway revisitedthe Italian front in some other works, but again, without relating to the concept of

IHL.

97


96. Ibid., p. 135.97. As a journalist Hemingway covered the Greco-Turkish War (1922), the Spanish Civil War

(1936-1939) and World War II after the D-day landing (1944). In 1940 he published For Whom theBell Tolls, a novel on guerrilla warfare in the Spanish conflict, which includes a description of sadistickilli f i ili f i i ll S i h Vi l i f h i i d d


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11. ANTI-UTOPIAN SATIRES: CAPEK AND ORWELL

In the inter-war period two Czech authors received international recognition; oneof them was of course the serious humorist Jaroslav Hasek; the other was a writerof greater versatility, Karel Capek (1890-1938). Capek was much acclaimed for hissurreal novel describing how competing states learned to train and exploit intelli-gent animals, namely giant salamanders or newts, until they revolt and demandcoastlines and seabeds from their former masters. The book War with the Newts(1936) satirizes science, state capitalism, fascism and militarism. In the story in-dustrialized states have become dependent on the newt working force and do notrealize, until it is too late, that the animals have learnt how to use explosives asenvironmental modification weapons (later called ENMOD).

The first country to find itself at war with the salamanders was Great Britain.British aerial bombardment of the sea was not very successful. The Newt forcesretaliated by shelling British ports and the city of London with underwater guns.The British Army Command then tried to poison the salamanders with bacteria,crude oil and caustic substances poured into the Thames and into certain bays.The Newts replied by releasing a screen of poison gas over 120 kilometres ofBritish coastline. It was only a demonstration but it sufficed: for the first time inhistory the British Government was obliged to request other powers to intervenereferring to the prohibition of gas warfare.The following night the croaky voice

of the Chief Salamander came on the air.Hello, you people! If you poison our water we will poison your air. We are onlyusing your own weapons. We are no barbarians. We dont want to make war onhumans. We dont want anything except our right to live.98

Up to this stage the story addresses the logic of bilateral first use/second use ofprohibited weapons, but, after a three day suspension of hostilities, the situationchanges. The Newts unilaterally declared an armistice, thereby giving the British

Government a chance to consider a cession of certain coastlines, to the benefit ofthe swelling Newt population. The following day it was announced in Parliamentthat:

His Majestys Government could not negotiate with an enemy who waged war on civil-ians and women. (Hear, hear.) What was at stake was no longer the fate of Britain butthat of the whole civilised world. Britain was ready to consider international guaranteesto limit these terrible barbarian attacks, which represented a menace to mankind itself. 99

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A few weeks later an international conference met in Vaduz (Lichtenstein) in orderto find a solution to the crisis. Capek makes fun of the mechanisms of internationalcooperation. The humanitarian goodwill argument is brandished from time to timeas a diplomatic tool. On the surface, it conveys a sense of reason in a tale ofabsurdity. One of the lawyers representing the Newts, states at the Vaduz confer-ence:

The Chief Salamander, whose magnanimous and modern thinking is by now univer-sally known, undertakes that in all future necessary alterations to the earth s surface hewill, as far as possible, spare human life; flooding will be conducted in easy stages andin such a way that no panic or unnecessary catastrophes are created.100

Nevertheless, the conference gets nowhere and the Italian delegation is shocked bythe sudden news that the salamanders have flooded the Venice area.

At the end of the book the author reflects that mankind as a whole may notperish. The Newts only need more coasts on which to live and lay their eggs.They could maximize the worlds coastlines by creating long spaghetti-like stripsof land, which would, after all, allow the human race to survive.

Capeks gruesome vision (a dystopia) is presented with black humour; thehuman blindness, which leads to the misdirected greedy exploitation of animals isguaranteed to provoke the reader. The only aspects of humanitarian law that occur,

do so as ingredients of the author

s satire.Three other anti-utopian writers of the mid 20th century, Aldous Huxley, ArthurKoestler and George Orwell, were less funny and more political in their depictionsof totalitarian systems.101 When Eric Blair/George Orwell (1903-1950) publishedAnimal Farmin 1945, it was widely perceived as an attack on Soviet communismand dictatorship, whilst his last bo

humanitarian law and literature - from utopia to slaughterhouse 5

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