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

37 Pages Posted: 15 Jun 2017 Last revised: 9 Oct 2019

See all articles by Eyal Benvenisti

Eyal Benvenisti

University of Cambridge - Lauterpacht Centre for International Law

Doreen Lustig

Tel Aviv University - Buchmann Faculty of Law

Date Written: June 13, 2017

Abstract

In this article, we challenge the canonical narrative about civil society’s efforts to discipline warfare during the mid-nineteenth century—a narrative of progressive evolution of Enlightenment-inspired laws of war, later to be termed international humanitarian law (IHL). On the basis of archival work and close reading of protocols, we argue that, in codifying the laws of war, the main concern of powerful 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. Specifically, we contend that it was the Franco-Prussian War of 1870–1871 and the subsequent short-lived, but violent, rise of the Paris Commune that prompted governments to adopt the Brussels Declaration of 1874, the first comprehensive text on the laws of war. The new law not only exposed civilians to war's harms, but also supported the growing capitalist economy by ensuring that market interests would be protected from the scourge of war and the consequences of defeat. The codification of the laws of war, in this formative stage, reflected an elite-driven project to restore the political and economic order of Europe.

Keywords: International Humanitarian Law, Law of Armed Conflict, History of International Law, Codification

JEL Classification: K33

Suggested Citation

Benvenisti, Eyal and Lustig, Doreen, Monopolizing War: Codifying the Laws of War to Reassert Governmental Authority, 1856–1874 (June 13, 2017). University of Cambridge Faculty of Law Research Paper No. 28/2017, Available at SSRN: https://ssrn.com/abstract=2985781 or http://dx.doi.org/10.2139/ssrn.2985781

Eyal Benvenisti (Contact Author)

University of Cambridge - Lauterpacht Centre for International Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Doreen Lustig

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

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