A History of the Laws of War, Volume 1: The Customs and Laws of War with Regards to Combatants and Captives

278 Pages·2011·1.133 MB·English

by  Alexander Gillespie

A History of tHe LAws of wAr: VoLume 1
this unique new work of reference traces the origins of the modern laws of warfare
from the earliest times to the present day. relying on written records from as far back
as 2400 BCe, and using sources ranging from the Bible to security Council resolutions,
the author pieces together the history of a subject which is almost as old as civilisation
itself. the author shows that as long as humanity has been waging wars it has also been
trying to find ways of legitimising different forms of combatants and regulating the
treatment of captives.
this first book on warfare deals with the broad question of whether the patterns of
dealing with combatants and captives have changed over the last 5,000 years, and if so,
how? in terms of context, the first part of the book is about combatants and those who
can ‘lawfully’ take part in combat. in many regards, this part of the first volume is a
series of ‘less than ideal’ pathways. this is because in an ideal world there would be no
combatants because there would be no fighting. yet as a species we do not live in such
a place or even anywhere near it, either historically or in contemporary times. this
being so, a second-best alternative has been to attempt to control the size of military
forces and, therefore, the bloodshed. this is also not the case by which humanity has
worked over the previous centuries. rather, the clear assumption for thousands of
years has been that authorities are allowed to build the size of their armed forces as
large as they wish. the restraints that have been applied are in terms of the quality
and methods by which combatants are taken. the considerations pertain to questions
of biology such as age and sex, geographical considerations such as nationality, and
the multiple nuances of informal or formal combatants. these questions have also
overlapped with ones of compulsion and whether citizens within a country can be
compelled to fight without their consent. Accordingly, for the previous 3,000 years, the
question has not been whether there should be a limit on the number of soldiers, but
rather who is or is not a lawful combatant. it has rarely been a question of numbers. it
has been, and remains, one of type. the second part of this book is about people,
typically combatants, captured in battle. it is about what happens to their status as
prisoners, about the possibilities of torture, assistance if they are wounded and what
happens to their remains should they be killed and their bodies fall into enemy hands.
the theme that ties all of these considerations together is that all of the acts befall
those who are, to one degree or another, captives of their enemies. As such, they are no
longer masters of their own fate.
As a work of reference this first volume, as part of a set of three, is unrivalled, and
will be of immense benefit to scholars and practitioners researching and advising
on the laws of warfare. it also tells a story which throws fascinating new light on the
history of international law and on the history of warfare itself.

A History of the Laws of war:
Volume 1
the Customs and Laws of war with
regards to Combatants and Captives
Alexander Gillespie
oXforD AND PortLAND, oreGoN
2011
Published in the united Kingdom by Hart Publishing Ltd
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© Alexander Gillespie 2011
Alexander Gillespie has asserted his right under the Copyright, Designs and Patents Act 1988,
to be identified as the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted,
in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted
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British Library Cataloguing in Publication Data
Data Available
isBN: 978-1-84946-204-4
typeset by Hope services, Abingdon
Printed and bound in Great Britain by
tJ international Ltd, Padstow, Cornwall
this book is for my children, Jamie, Conor and renee,
with the wish that they never have to endure or witness any of the horrors
i have recorded in these pages.

Table of Contents
Treaties and Sources ix
introduction 1
i. Combatants 6
1. in an ideal world 6
2. in the real world 7
3. Building Armed forces 12
4. the first Armed forces 12
5. rome 18
6. the Dark Ages 24
7. the feudal Age 27
8. the renaissance and reformation 33
9. the enlightenment 41
A. Boys, women and men 41
B. Conscription and impressment 42
C. foreign forces and mercenaries 46
D. formal and informal Combatants 48
e. Pirates and Privateers 51
10. Between 1860 and 1945 53
A. Conscription 53
B. Physical Considerations 56
C. soldiers of foreign Lands 59
D. informal and formal Combatants 61
e. the rise of the Non-formal Belligerents in times of Peace 70
11. from the Cold war to the twenty-first Century 73
A. Age 73
B. sex 77
C. Conscription 78
D. soldiers of foreign Lands 80
e. formal and informal Combatants 86
f. the Lines Blur on the Question of identification 92
G. Pirates and terrorists 96
ii. Captives 103
1. Beginnings 103
2. the Greeks 107
3. the romans 112
4. the early middle Ages 119
5. the Crusades 127
6. the sixteenth and seventeenth Centuries 134
viii Table os Contents
7. the eighteenth Century 142
8. the wars of the french revolution 147
9. Between 1815 and 1861 153
10. the American Civil war 157
11. from 1863 to 1914 159
A. the wounded 159
B. Prisoners 162
12. the first world war 168
A. Prisoners 168
B. wounded 172
C. Defenceless 174
D. the Dead 177
13. Between the wars 178
A. Prisoners 178
B. wounded 182
C. Defenceless 183
D. the Dead 185
14. the second world war 185
A. executing Prisoners 185
B. Killing Prisoners by methods of incarceration 192
C. wounded 200
D. Defenceless 204
e. the Dead 208
15. After the second world war 210
A. trials 210
B. the 1949 Geneva Conventions 212
(i) Prisoners 213
(ii) wounded and Defenceless 215
16. Between 1949 and 1977 218
A. indo-China 218
B. Korea 219
C. from Algeria to israel 221
D. Vietnam 223
17. the 1977 Additional Protocols 226
18. towards the end of the Cold war 229
19. the 1984 Convention Against torture 233
20. from the 1990s into the twenty-first Century 236
A. the wars in the former yugoslavia 236
B. Dirty wars and the war on terror 239
21. the Developments in the twenty-first Century 243
Conclusion 246
index 253
Treaties and Sources
the 509 BCe treaty Between rome and Carthage 509 BC in Lewis, N and reinhold
m (eds) Roman Civilisation: Records, Vol 1 (Columbia, Columbia university Press)
72.
the 421 BCe Peace of Nicias in ferguson, J (ed) (1978) Political and Social Life in the
Great Age of Athens: A Sourcebook (London, open university Press) 420–21.
the 241 BCe Peace treaty Between rome and Carthage in Lewis, N and reinhold
m (eds) Roman Civilisation: Records, Vol 1 (Columbia, Columbia university Press) 153.
the 201 BCe Peace treaty with Carthage in Lewis, N and reinhold m (eds) Roman
Civilisation: Records, Vol 1, 171.
the 200 BCe treaty Between Crete and rhodes in Austin, m (ed) (1992) The Hellenistic
World From Alexander to the Roman Conquest: A Collection of Readings (Cambridge,
Cambridge university Press) 93, 95.
the 196 BCe Peace treaty with Philip V in Lewis, N and reinhold m (eds) Roman
Civilisation: Records, Vol 1 (Columbia, Columbia university Press) 174.
the 188 BCe Peace treaty with Antiochus iii of syria in Lewis, N and reinhold m
(eds) Roman Civilisation: Records, Vol 1 (Columbia, Columbia university Press).
the 189 BCe Peace treaty with the Aetolian League in Lewis, N and reinhold m
(eds) Roman Civilisation: Records, Vol 1 (Columbia, Columbia university Press) 178.
the 163 BCe Agreement Between eumenes i and his mercenaries in Austin, m (ed)
(1992) The Hellenistic World From Alexander to the Roman Conquest: A Collection of Readings
(Cambridge, Cambridge university Press) 321.
the 271 treaty with the Vandals in Lewis, N and reinhold, m (eds) Roman Civilization:
Selected Readings, Vol ii (NyC, Columbia university Press) 437.
the 989 Peace and truce of God, in Herlihy, D (ed) The History of Feudalism (Ny,
Harper) 286.
the 1250 treaty in Ghunaimi, m (1968) The Muslim Conception of International Law
(NyC, Columbia university Press) 49–50.
the 1435 treaty of Arras in Contamine, P (1984) War in the Middle Ages (oxford,
Blackmore) 190.
the 1474 treaty Between Louis Xi and the swiss 1474 in Laffan, r (ed) (1929) Select
Historical Documents: 800–1492 (Ny, Holt) 176.
the 1648 treaty of westphalia in symcox, G (1974) The Documentary History of
Western Civilisation. War, Diplomacy and Imperialism (NyC, walker) 41.
the 1657 treaty of wehlau in macartney, C (ed) (1970) The Habsburg and Hohenzollern
Dynasties (NyC, Harper) 242.
the 1687 Peace of Nijmegen in reddaway, f (ed) (1930) Select Documents in European
History, Vol ii (London, methuen) 1492–715, 154.
the 1697 treaty of ryswick in Axelrod, A (ed) (2001) Encyclopedia of Historical
Treaties and Alliances, Vol i (NyC, facts on file) 59.
the 1714 rastadt treaty 1714 in Axelrod, A (ed) (2001) Encyclopedia of Historical
Treaties and Alliances, Vol i (NyC, facts on file) 82.
x Treaties and Sources
the 1746 treaty Between Persia and the ottoman empire in Hurewitz, t (ed)
Diplomacy in the Near and Middle East: A Documentary Record (Columbia, NyC university
Press) 52.
the 1763 treaty of Paris in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties
and Alliances, Vol i (NyC, facts on file) 119.
the 1783 treaty of Paris Between the united states and Great Britain in Axelrod, A (ed)
(2001) Encyclopedia of Historical Treaties and Alliances, Vol i (NyC, facts on file) 125.
the 1784 treaty with the six Nations in Axelrod, A (ed) (2001) Encyclopedia of
Historical Treaties and Alliances, Vol i (NyC, facts on file) 129.
the 1785 treaty of Amity and Commerce Between His majesty the King of Prussia,
and the united states of America. full text is available at the yale Law school
‘Avalon Project’. http://avalon.law.yale.edu.
the 1794 Jay treaty in Bernis, s.f (1962) Jay’s Treaty: A Study in Commerce and Dilpomacy
(New Haven, yale university Press).
the 1801 treaty of Luneville in russell, w (1857) Russell’s History of Modern Europe,
Epitomised (London, routledge & Co) 536–43.
the 1802 treaty of Amiens in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties
and Alliances, Vol i (NyC, facts on file) 175.
the 1802 treaty Between france and the ottoman empire in van den Boogert,
m.H and fleet, K (eds) (2003) The Ottoman capitulations: Text and Context (rome,
istituto per l’oriente CA Nallino) vii, [575]–[727].
the 1803 treaty Between france and Prussia. full text available at the Napoleon
series website http://www.napoleon-series.org.
the 1806 franco–russian Peace treaty.
the 1808 treaty of tilsit, De Clercq, traites, ii, 270–72, Dodsley, J (1809) Annual
review or A View of the History, Politics, and Literature for the Year 1807 (London, Hardin
and wright & w wilson) 720–24.
the 1808 Convention of Cintra, Dodsley, J (1809) Annual Register, or a View of the
History, Politics, and Literature, for the Year 1808 (London, Hardin and wright &
w wilson) 282–84.
the 1808 treaty Between france and Prussia, Kippis, A et al (1908) Annual Review or a
View of the History, Politics and Literature for the Year 1807 (London, Paternoster row)
275–76.
the 1809 treaty of Vienna, Baldwin, Cradock and Joy (1821) The Annual Register or a
View of the History, Politics and Literature for the Year 1809, Vol 51 (London, tC Hansard)
733–38.
the 1809 treaty of schonbrunn in Axelrod, A (ed) (2001) Encyclopedia of Historical
Treaties and Alliances, Vol I (NyC, facts on file) 185, 187.
the 1814 treaty of fort Jackson, Halbert, H.s and Ball, t.H (1895) The Creek War of
1813 and 1814 (tuscaloosa, university of Alabama Press) 282–84.
the 1815 Peace of Paris in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and
Alliances, Vol i (NyC, facts on file) 189.
the 1820 General treaty for supressing Piracy in Hurewitz, t (ed) Diplomacy in the
Near and Middle East: A Documentary Record (NyC, Columbia uP) 88–89.
the 1841 Quintuple treaty in Green, D (1866) Facts and Suggestions, Biographical,
Historical, Financial and Political addressed to the People of the United States (Ny, richardson
& Co) 120–23.