Isabel V. Hull. A Scrap of Paper: Breaking and Making International Law during the Great War. Ithaca: Cornell University Press, 2014. 384 pp. $45.00 (cloth), ISBN 978-0-8014-5273-4.
Reviewed by Bruce D. Cohen (University of North Texas)
Published on H-War (October, 2014)
Commissioned by Margaret Sankey (Air University)
In the twenty-first century, allegations of war crimes and taunts of “war criminal” are so ubiquitous as to have been cleansed of much of their meaning. A stray precision-guided munition or a misidentification of a civilian structure is enough to elicit fervid condemnation and demands for Security Council disapprobation and the convening of a trial, at least when developed Western nations have fired the errant round. The threat carries more than nominal weight because within recent memory, war criminals have been punished and war crimes adjudicated. But in the nineteenth century, and indeed well past the First World War, the fundamental nature of the laws of war were unsettled. Attempts at codification of governing principles were never wholly successful because the negotiating states—many, like the German Empire, themselves newcomers to the world stage—disagreed about the very essence of warfare and its role in international affairs.
Isabel V. Hull’s A Scrap of Paper: Breaking and Making International Law during the Great War examines the state of the law of war in the decades prior to the Great War, and the tenuous interplay between the war itself and the laws that putatively governed it. She introduces the subject with an in-depth examination of the two leading conventions at which diplomats and military representatives debated the terms that resulted in the Hague Conventions of 1899 and 1907 (the latter unratified by the outbreak of World War I). As Hull explains, international law is a nebulous mixture of “customary law,” which civilized nations recognize as a fundamental governing principle even absent a formalized agreement to that effect, and “positive law,” which is precisely such a written, ratified agreement. The concept is easy to grasp (murder is customarily unlawful; watering one’s lawn on the wrong day requires positive codification before it is an offense), but extremely difficult to implement when nations differ greatly on the nature of warfare and of states. At the 1874 Brussels Convention (which “became the template for the Hague Convention of 1899” [p. 60]), for example, the Germans—fresh from their experience with the franc-tireurs of the Franco-Prussian War—advocated a definition of legal combatants markedly more stringent than their peers. Were the fighters in a levée en masse entitled to the protections of the convening parties—for example, prisoner protection, due process, and notice to their nation of capture—or were they brigands liable to summary execution? Moreover, given a convention dedicated to memorializing the laws of war, did any customary law exist that was not codified? This dispute about who and what is in or outside the protection of the law (“hors la loi” [p. 63]) is illustrative of the fundamental disputes between the nations and their notions of the law. The extent to which there is a “common law” of international warfare, in a legal, diplomatic forum in which the principal approach is more closely analogous to civil law, informs much of the book.
Hull also explains the Belgian neutrality treaty, whose violation was the casus belli for British entry into the war, and the eponymous “scrap of paper” in the derisive words of Theobald von Bethmann-Hollweg. Belgium was a creation of international law, and the guarantee of its neutrality provided several instances between the 1839 Treaty of Paris and the Battle of the Frontiers for the parties to opine on its actual effect. Again, fundamental differences arose over the decades. As Hull notes, the treaty was unclear as to the collective nature of the guarantee it provided. Ostensibly, while even a single country could declare war to uphold the rights of the Belgians, none of the signatories were required to, if the other non-breaching parties did not. (Indeed, William Gladstone opined at one time that a violation of the treaty by any guarantor nullified it.) The question of whether the guarantee was the obligation of all the guarantors collectively or of each individually (“joint versus joint and several”) was the subject of various arguments in Parliament over several decades. They stood in contrast to various Prussian/German notions that a country unable to defend its borders was essentially not a nation at all; that conditions had so changed since the Treaty of Paris as to obviate its guarantee (the international-law principle of “rebus sic stantibus” to which Hull frequently refers); and that violation of Belgian territory was permissible if necessary to the war effort (the essential principle behind Bethmann-Hollweg’s sneer).
While violation of the borders of Belgium (and Luxembourg) was the first aspect of international law implicated by the First World War, it hardly stood alone even in the first weeks of the war. The “Belgian atrocities,” the British blockade of the German Empire, the sinking of merchant ships, the use of U-boats against neutrals and of zeppelins and airplanes for raids on civilian targets, and the introduction of noxious gasses and flamethrowers each were the subject of furious internal debates of the belligerent nations, as well as heated diplomatic exchanges between those nations and the neutrals whose opinions they were trying to persuade. These subjects are carefully examined, with extensive citation to the often-unsettled debates in the cabinets and chancelleries of France, Germany, and Great Britain. Treatment of prisoners and of occupied civilians (including feeding the starving Belgians), and the use of reprisal as a tool to either punish the enemy for its transgressions or bring it back within the bounds of the law are likewise studied in detail, all leading the reader to a consistent theme.
Hull argues persuasively that the German approach to the law of war differed substantively from its French and British enemies, because it privileged power, necessity, and, most of all, victory, above the principles codified or recognized as governing the laws of war. Whether choosing to place prisoners in the zone of danger, to sink neutral ships without the warnings inherent in “cruiser rules,” or to deploy chlorine gas on the battlefield, the military’s position eventually beat out the foreign office’s and the chancellor’s when “necessity” dictated. Hull coins the term “weapons positivism” to describe the German approach to new technologies like submarines and poison gas. The technological availability of such weapons justified their use and advantages that could be derived from their use brought an end to arguments that they were outside the rules of war. In this respect, as in others, Hull is unabashedly revisionist in her approach to issues associated with war guilt and the collapse of international norms because, as she notes, history has been somewhat kind to the German Empire. Hull traces that solicitude to the hard work of interwar German apologists.
A Scrap of Paper is an extremely broad-ranging and well-researched work, but it has a decided shortcoming; it is impossible to identify the target reader. The book assumes extraordinary sophistication in a variety of areas—for example, it discusses but never defines the differences between an effective and ineffective blockade and alludes to prize courts cases without explaining to the lay reader what they are—and approaches many of the key jurisprudential principles with a depth too inscrutable to lay readers and not sufficiently detailed for most legal ones.
Most “international law” treatises and textbooks rely much more heavily on the actual text of decisions that created relevant precedent; most histories avoid the endless nuance-laden traps inherent in discussing discrete points of law. Save, perhaps for other specialists in the law of international war, as for example, lawyers at judge advocate schools or the small group of “international lawyers” who focus on these narrow questions, Hull seems to have written a book that only she can fully appreciate. This is, of course, unfortunate at a time that situations in Eastern Europe and the Middle East raise some of the same questions—obligations to prisoners and occupied civilians, the “sanctity” of borders, the rights of sanction and reprisal among nations—the world faced a century ago. While the First World War provides immense opportunity for the study of both military and foreign affairs, this work will be useful only to specialists and scholars of the most arcane sort.
If there is additional discussion of this review, you may access it through the network, at: https://networks.h-net.org/h-war.
Bruce D. Cohen. Review of Hull, Isabel V., A Scrap of Paper: Breaking and Making International Law during the Great War.
H-War, H-Net Reviews.
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