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Taming Democracy: Codifying the Laws of War to Restore the European Order, 1856-1874

48 Pages Posted: 15 Jun 2017 Last revised: 30 Aug 2017

Eyal Benvenisti

University of Cambridge Faculty of Law

Doreen Lustig

Tel Aviv University - Buchmann Faculty of Law

Date Written: June 13, 2017

Abstract

In this article, we contend that the canonical narrative about civil society’s efforts to discipline warfare during the mid-nineteenth century - a narrative of progressive evolution of Enlightenment-inspired international humanitarian law (IHL) - does not withstand scrutiny. On the basis of archival work and close reading of protocols, we argue that European governments codified the laws of war not for the purpose of protecting 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 into the bottle. Specifically, we propose 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 (more than any other war during this formative era of international law) to adopt the Brussels Declaration of 1874, the first comprehensive text on the laws of war. The new law not only exposed civilians to the 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 laws of war, in this formative stage, were more about restoring the political and economic order of Europe than about wartime.

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

JEL Classification: K33,

Suggested Citation

Benvenisti, Eyal and Lustig, Doreen, Taming Democracy: Codifying the Laws of War to Restore the European Order, 1856-1874 (June 13, 2017). University of Cambridge Faculty of Law Research Paper No. 28/2017. Available at SSRN: https://ssrn.com/abstract=2985781

Eyal Benvenisti (Contact Author)

University of Cambridge Faculty of Law ( email )

Lauterpacht Centre for International Law
5 Cranmer Centre
Cambridge, CB3 9BL
United Kingdom

Doreen Lustig

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

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