Monopolizing War: Codifying the Laws of War to Reassert Governmental Authority, 1856–1874

Abstract

In this article, we challenge the canonical narrative about civil society’s efforts to discipline warfare during the mid-19th century – a narrative of progressive evolution of Enlightenment-inspired laws of war, later to be termed international humanitarian law. Conversely, our historical account shows how the debate over participation in international law-making and the content of the law reflected social and political tensions within and between European states. While the multifaceted influence of civil society was an important catalyst for the inter-governmental codification of the laws of war, the content of that codification did not simply reflect humanitarian sensibilities. Rather, as civil society posed a threat to the governmental monopoly over the regulation of war, the turn to inter-state codification of IHL also assisted governments in securing their authority as the sole regulators in the international terrain. We argue that, in codifying the laws of war, the main concern of key European governments was not to protect civilians from combatants’ fire, but rather to protect combatants from civilians eager to take up arms to defend their nation – even against their own governments’ wishes. We further argue that the concern with placing ‘a gun on the shoulder of every socialist’ extended far beyond the battlefield. Monarchs and emperors turned to international law to put the dreaded nationalist and revolutionary genies back in the bottle. These concerns were brought to the fore most forcefully in the Franco-Prussian War of 1870–1871 and the subsequent short-lived, but violent, rise of the Paris Commune. These events formed the backdrop to the Brussels Declaration of 1874, the first comprehensive text on the laws of war. This Declaration exposed civilians to war’s harms and supported the growing capitalist economy by ensuring that market interests would be protected from the scourge of war and the consequences of defeat.

What is IHL history now?

“…This scholarship shows that, in reality, advocates of the discipline have always played an important role in the formation of nation-States and their mythologizing narratives of themselves. 41 Indeed, the codification of humanitarian law was informed by ideas of nationality, race, religion and gender to a much more significant extent than has been often assumed in retrospectespecially in contemporary commemorative rituals of IHL.…”

Unveiling the “Legal Conscience of the Civilized World:” a Critical Look at the Institut de Droit International

“…23 In their exploration of the IDI's early codification efforts, Eyal Benvenisti and Doreen Lustig found through the content of the 1874 Brussels Declaration that the document was heavily influenced by the work of the IDI members, who had had a specific vision of peace linked to free trade and protecting the wealthy class (the Brussels project). 24 After the Brussels Declaration, the IDI continued working on the issues covered in the document. The IDI developed its 1880 Oxford Manual of the Laws of War on Land, the preface of which states: "The Institut .…”