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Alexander Gillespie, A History of the Laws of War: 3 Volume Boxed Set, Oxford, England and Portland, Oregon: Hart, 2011. Pp. 782. $250.00 (ISBN 978-1-849-46203-7).

Published online by Cambridge University Press:  06 September 2012

Martti Koskenniemi*
Affiliation:
University of Helsinki
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Abstract

Type
Book Reviews
Copyright
Copyright © the American Society for Legal History, Inc. 2012

The author of this three-volume set, a professor of law from the University of Waikato, New Zealand, tells us that he once engaged in a debate with his mother about whether humanity had made progress in the course of its history. As the debate produced no definite answer but the question did not cease to haunt him, he decided to clarify the matter once and for all by creating a “comprehensive collection of the evidence and facts from which analysis could begin” (Vol. I, 2). This work is the result of that fact-collecting process. There is something quaint in the author's attempt to use chronological “facts” in this way, as magistra vitae in the manner of early modern universal history, a storehouse of experience by which to assess human “progress.” As if the meaning of armed struggles, or what might count as “regulation” of such struggles had remained unchanged from the time of the ancient Egyptians to the date of the latest United Nations Security Council resolution. And as if there were a single, unchanged sense to “progress.” The complete absence of any consideration of the religious, moral, or political vocabularies within which rules about permissible and impermissible forms of killing have been articulated makes this not only much less than a full account of its subject matter but also somewhat anachronistic. The relevant “rules” are those that might appear as such for “us”—just as the notion of “progress” is that of an educated Western professional. In his wish to remain completely factual, the author has avoided engaging with any of the many previous histories of warfare, the law of nations, or of the “progress of humanity.” There is no engagement with even such fairly obvious interlocutors such as Carl Schmitt's Der Nomos der Erde und das Ius publicum europaeum (Berlin 1950/1988) or Jonathan Glover's Humanity (1999). The “facts” are simply collected from international treaties and history books, and organized chronologically under four thematic headings: “Combatants,” “Captives,” “Civilians,” and “Weapons.” Each volume has a slightly differing organization, reflecting the availability of materials for the author (who only uses English-language sources). The volumes begin where universal histories have always begun—the ancient Sumerians, Assyrians, Egyptians, proceeding from there rather rapidly from Greek and Roman antiquity via a period called “Dark Ages” and the “Enlightenment,” into the twentieth century and up to the present war in Afghanistan. By far, most of the materials come from the late twentieth and early twenty-first centuries and no consideration is given to non-European histories. The background narrative is the one most of us have learned from our school textbooks: the last 2000 years organized as a narrative of European wars or wars imposed by Europeans on the rest of the world. No attention is paid to rules of warfare in the Chinese realm, in Africa, in the Americas before the entry of the Europeans, in ancient India, or in the Islamic world.

Because of the total absence of an intellectual history of warfare and the breakup of the “facts” of regulation into four independent chronologies, the volumes tend to collapse into rather exhausting (although not really exhaustive) listings of treaties and practices, peppered by a large number of dates and points of technical detail. Of aerial bombardment by Germans in the First World War, we learn, for example, that “[b]y the end of the war, 52 such bombing raids by Gothas and 53 by Zeppelins had claimed some 1,400 killed and 3,400 injured, with a cost of some 280 tons of bombs” (Vol. II, 20). That is a nice piece of factual information, and there is a large amount of this type of data in the three volumes. To the extent that the reader's interest is in the facts of some particular type of warfare, preferably at some particular moment—treatment of prisoners of war during the First World War, post-cold war rules on arms limitation, execution of prisoners during the Second World War or targeting civilians after 1980, for example—the reader will be rewarded by a lot of factual information, as the author promised. Understandably, the account of recent wars is much more complete than the sections dating before the nineteenth century, which have been composed in an outright anecdotal fashion. Many sections, especially those on the nineteenth and twentieth centuries, operate as nutshell introductions to particular conflicts in terms of the volume of destruction and the attempts to limit it by the creation and application of rules. As a kind of comparative handbook on the manner of accepted and unaccepted ways of waging past and present wars (mostly by Europeans), these volumes operate quite well.

But I do not think they tell us much about human progress. The author has proceeded by following the direction to which his English-language sources point, taking for granted the most conventional periodizations of European historiography and the account of “rules” predominant in twentieth-century legal histories. No attempt is made to situate the rules or the practices in their religious, political, cultural, or technological context. Like the universal histories of the eighteenth century that they resemble, the volumes operate with uniform meanings and a single trajectory of stages in which the past is a pale reflection of present concerns, and the point of history appears as the production of the many formal and informal instruments and institutions with which we are today familiar: the Security Council and the International Criminal Court. At the end of volume I, the author concludes that although huge problems remain and “progress” has been uneven, with these (Western-led) institutions “we have all the pieces in place, and we are on the right track” (Vol. I, 251). At this point, the work turns into ideology.