Anglo-American Dissent from the European Law of War: A History with Contemporary Echoes

Abstract

Additional Protocol I to the Geneva Conventions (1977) lays down the “basic rule” that attacks must not be directed at “civilian objects” any more than at “civilians.” Red Cross commentators and others assert that the law of war has embraced this “rule” for many centuries. In fact, the leading commentators in Britain and America disputed this rule in the Nineteenth Century and well into the Twentieth Century. They defended naval seizures of private property as a perfectly reasonable war measure, along with raids on private property of the sort exemplified by General Sherman’s Georgia campaign in the Civil War. Even European commentators, arguing for complete immunity of civilian objects in war, traced the doctrine not to remote tradition but to the mid-18th Century doctrines of Jean-Jacques Rousseau. In the hands of German interpreters, that doctrine was invoked to justify extreme brutality against “resistance” to invading armies. Even today, the “basic rule” does not serve the reasonable claims of humanity in all circumstances.

Keywords: armed conflict, basic rule, civilian objects, just war, Britain, Germany, international law, private property, Rousseau, United States

JEL Classification: K11, K33