From Slaves to Prisoners of War: The Ottoman Empire, Russia, and International Law

300 Pages·2018·2.222 MB·English

by  Will Smiley

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THE HISTORY AND THEORY OF
INTERNATIONAL LAW
From Slaves to Prisoners of War
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THE HISTORY AND THEORY OF
INTERNATIONAL LAW
General Editors
NEHAL BHUTA
Professor of Public International Law, European University Institute
ANTHONY PAGDEN
Distinguished Professor, University of California Los Angeles
BENJAMIN STRAUMANN
Alberico Gentili Senior Fellow, New York University School of Law
In the past few decades the understanding of the relationship between nations
has undergone a radical transformation. The role of the traditional nation-
state is diminishing, along with many of the traditional vocabularies which
were once used to describe what has been called, ever since Jeremy Bentham
coined the phrase in 1780, “international law.” The older boundaries between
states are growing ever more fluid, new conceptions and new languages have
emerged which are slowly coming to replace the image of a world of sovereign
independent nation states which has dominated the study of international
relations since the early nineteenth century. This redefinition of the international
arena demands a new understanding of classical and contemporary questions
in international and legal theory. It is the editors’ conviction that the best way
to achieve this is by bridging the traditional divide between international legal
theory, intellectual history, and legal and political history. The aim of the
series, therefore, is to provide a forum for historical studies, from classical
antiquity to the twenty-first century, that are theoretically informed and for
philosophical work that is historically conscious, in the hope that a new vision
of the rapidly evolving international world, its past and its possible future,
may emerge.
previously published in this series
International Law and Empire
Historical Explorations
Edited by Martti Koskenniemi, Walter Rech, and Manuel Jiménez Fonseca
International Law and Religion
Historical and Contemporary Perspectives
Edited by Martti Koskenniemi, Mónica García-Salmones Rovira,
and Paolo Amorosa
The Hidden History of International Law in the Americas
Empire and Legal Networks
Juan Pablo Scarfi
System, Order, and International Law
The Early History of International Legal Thought from
Machiavelli to Hegel
Edited by Stefan Kadelbach, Thomas Kleinlein, and David Roth-Isigkeit
OUP CORRECTED PROOF – FINAL, 18/07/18, SPi
From Slaves to Prisoners
of War
The Ottoman Empire, Russia,
and International Law
WILL SMILEY
1
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3
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For Madhavi
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Series Editors’ Preface
European attitudes to the Ottoman Empire changed in the fifteenth and sixteenth
centuries when new accounts of the Ottoman state and society became available,
such as the Tractatus de moribus, condictionibus et nequicia Turcorum (1481) by
George of Hungary, who had been enslaved for twenty years by the Ottomans.
Important thinkers, like the sixteenth-century political and legal theorist Jean
Bodin (1530–96), absorbed this body of new information and integrated it into
their political and legal thought. Military discipline, the meritocratic nature of
Ottoman society, the efficient administration of justice and, above all, religious
toleration toward Christians and Jews were noted and seen as political and consti-
tutional virtues.
In the present book, which is organized around Ottoman rivalry with the
Russian Empire during the period 1700–1878, Will Smiley shows that in the
domain of what we today call international humanitarian law, or the law of war,
there was, centuries after Bodin, another important set of normative practices and
rules of Ottoman provenance that influenced Western Europe, before European
ideas started influencing the Ottoman Empire in turn. Smiley gives a fascinating
account of how in the eighteenth and nineteenth centuries the Ottoman and
Russian empires negotiated a body of rules governing the laws of war and captivity
during a period of nearly constant rivalry and warfare between the two empires.
Toward the end of the eighteenth century this distinctly Eurasian international law
of captivity was embraced, Smiley argues, by European powers such as Austria,
Poland, and even by the world powers France and Britain. Military captivity under
the Ottomans emerges in this account as an increasingly rule-governed domain.
From mass enslavement of enemy civilians Constantinople moved, over a long
period of time and in constant negotiation with Russia and actors on the ground,
toward a set of rules that no longer countenanced enslavement and ransom, but
instead foresaw a prisoner-of-war regime. This regime developed as the result of
a bargaining process that involved not only empires, but individual captors and
captives alike, and it emerged largely independently from analogous European
developments.
It was not until the Crimean War, Smiley argues, that the European powers
became central to the development of this body of rules and brought diplomatic
and humanitarian pressure to bear on an already “Europeanizing” Ottoman
Empire. Smiley’s Eurasian international law of captivity has its geopolitical center
of gravity around the Black Sea, assuming a perspective that is as unconventional
for historians of international law as it is fruitful. But Smiley’s approach does not
just offer an unfamiliar Black Sea legal history of military captivity, it also gives us
a detailed and challenging account—a case study—of the historical emergence of
international legal rules. For Smiley, these rules are the result of bargaining and
practices on the ground: practices generated normative expectations and turned,
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viii Series Editors’ Preface
eventually, into rules. International law, that is, emerged in a way reminiscent of
Humean convention; legal norms are not, first and foremost, emanating from the
will of sovereign states, but they are the negotiated result of imperial interests and
ideas, as well as of captors’ and captives’ interests and ideas.
But what, in the last analysis, effected this change from a regime of slavery and
ransom to rule-governed captivity and prisoner-of-war status? What Smiley’s
account of the regional emergence of customary and treaty-based international law
seems to offer is an explanation in terms of coinciding imperial interests and pref-
erences of those involved, an account, that is, that seems implicitly skeptical of a
more richly normative notion of the emergence of legal norms. The norms of cap-
tivity that interest Smiley develop as the result of an effort at coordination where
interests, not ideas, call the shots. Normative ideas, it is true, do play a role in
Smiley’s account, in that the Ottomans are said to have been guided by notions of
imperial legitimacy and a commitment to legal tradition, while the Russians, con-
cerned with their place among European powers, saw themselves as defenders of
Orthodox Christianity. But not only do these ideas carry the faint smell of interest,
they also seem decidedly less important than material factors. It was Ottoman
defeats in war, above all, which ended large-scale raiding and drove efforts at mili-
tary reform. The needs of military power, that is, and the changing nature of war-
fare were behind much of the legal changes described in this book. Similar structural
forces were behind analogous developments within the empires of Europe, Smiley
points out, which makes these at first sight astonishing parallels more amenable
to explanation.
The evolution of rules is on this view due to a convergence of interests. But,
interestingly, there is some evidence that acceptance and compliance with those
rules, as opposed to their emergence, was actually motivated by those rules them-
selves, at least to an extent, which might lead one to conclude that while the emer-
gence of the “Eurasian” or “Black Sea law of captivity” was due to strategic interests
and other, non-legal reasons, acceptance and compliance with that body of law
seems to have at least at times been driven by legal reasons proper. In addition to
its novel, long-term focus on legal developments in Eurasia, and all the while
firmly historico-empirical in its emphasis, this book will stimulate further thinking
not only on the history but also on the theory of the emergence and acceptance of
international law.
Benjamin Straumann
New York City
January 17, 2018
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Acknowledgments
This book took shape across four countries, ten cities, five colleges and universities,
and far too many years. I am grateful to many people and institutions for making it
possible. Most of all I thank Virginia Aksan for her support and mentorship over the
years. I am also grateful to Kate Fleet and William O’Reilly for their supervision in the
PhD program at Cambridge, and to Aimee Genell, Leslie Peirce, Joshua White, and
John Witt for informal conversations that have shaped key parts of the project. Many
others have generously shared their time (including by reading drafts), their sugges-
tions, their work, or access to primary sources, including James Baldwin, Lauren
Benton, Bill Blair, Brian Boeck, Palmira Brummett, Jane Burbank, Maurits van den
Boogert, Lâle Can, Uğur Demir, Hakan Erdem, Tolga Esmer, Suraiya Faroqhi, Pascal
Firges, Bernard Freamon, Lela Gibson, Tobias Graf, Molly Greene, Antonis
Hadjikyriacou, Ayhan Han, Will Hanley, Maximilian Hartmuth, Oona Hathaway,
Jan Hennings, Colin Heywood, Peter Holquist, Dan Hulsebosch, Christine Isom-
Verhaaren, Hubertus Jahn, Daniel Krebs, Tijana Krstic,́ Özlem Kutkan, Julia Leikin,
Jane Manners, Ethan Menchinger, Alan Mikhail, Joerg Muth, Jake Norris, Claire
Norton, Kelly O’Neill, Amanda Phillips, Intisar Rabb, Mike Reynolds, Andrew
Robarts, Emma Rothschild, Kahraman Şakul, Kent Schull, Scott Shapiro, Mitra
Sharafi, Murat Şiviloğlu, Marika Snider, Nur Sobers-Khan, Frank Stewart, Benjamin
Straumann, Ehud Toledano, Barbara Young Welke, James Q. Whitman, Christoph
Witzenrath, Fariba Zarinebaf, the students in Leslie Peirce’s NYU graduate seminar,
OUP’s anonymous reviewers, and the participants in many conferences and work-
shops. Particularly valuable were the workshop on Slavery, Ransom and Liberation in
Russia and the Steppe Area (University of Aberdeen, 2009), the National Endowment
for the Humanities Summer Seminar on the Late Ottoman and Russian Empires
(George Washington University, 2014), the Hurst Summer Institute in Legal History
(University of Wisconsin Law School, 2015), and the Golieb Research Colloquium
(New York University Law School, 2016). Timmy Straw Beezhold and Elliot Robinson
helped in translating one important source from Russian, while my mother, Ann
Smiley, helped with a difficult French passage. I thank Didem Havlioğlu, Kağan Arık,
Yorgos Dedes, and Gregory Key for teaching me Ottoman and modern Turkish. I am
sure I have inadvertently omitted others, and I ask for their forgiveness. All errors of
fact and liberties of interpretation, of course, remain my own.
The research for this project was financially supported by the generosity of the
Gates Cambridge Trust, the Skilliter Centre for Ottoman Studies, the American
Research Institute in Turkey, the Harvard-Cambridge History Project, the Institute
for Turkish Studies, the Royal Historical Society, the Yale Law School Financial
Aid Office, and Queens’ College.
Along the way I benefited from the help of staff at the BOA (particularly Mümin
Yıldıztaş), AVPRI; RGVIA; TNA; and Cambridge University, Seeley Historical,
Yale University, Yale Law, University of Wisconsin-Madison, British, Atatürk,
İSAM, Reed College, and New York University libraries. Though we have never