This chapter introduces the law of war crimes including: its historic development, common legal issues such as identifying an armed conflict, and the specific offences constituting war crimes. As for the historic emergence of war crimes law, the chapter looks at the evolution of humanitarian law – on which war crimes law is based. The chapter discusses the key principles of humanitarian law (distinction, proportionality, etc), the challenges of regulating warfare, the emergence of individual criminal responsibility (i.e. war crimes), and the evolution of war crimes in non-international armed conflicts. As for ‘armed conflict’, the chapter discusses common challenges in identifying the character of the armed conflict (international or non-international), for example in situations of invitation, national liberation, proxy forces, and transnational conflict. The chapter reviews the requirements to qualify as an armed conflict – intensity of the conflict and organization of the parties. It then reviews specific illustrations of war crimes, including: crimes against non-combatants (killing, sexual violence, experiments, and so on); attacks on prohibited targets (for example, historic monuments, hospitals, and so on); and attacks likely to inflict disproportionate civilian harm compared to the anticipated military advantage; prohibited weapons; and prohibited methods of warfare.

Sieges were central to the evolution of customary laws of war in early modern Europe and represented the most regularised form of warfare. They were also where civilians were most at risk of exposure to the violence of conventional war, including the phenomenon of sack. A besieging force that stormed a town had the right to put the garrison to the sword and to sack the town. Yet the long tradition of sack has been neglected by historians, only now emerging as a subject of study in its own right. This chapter explores the history of sieges, sack, and the laws of war in Western Europe over the course of the long eighteenth century (1660–1815). It highlights sieges as an important but relatively neglected place for examining changes and continuities in customary laws of war, ideals of barbarity and civility, and moral sentiment over the long eighteenth century.

In appreciating the institutional perpetuity of war, while simultaneously acknowledging the historically informed, inherent limitations of attempts to bound its conduct by international law, this chapter introduces the three interrelated questions that serve as the organising themes of this volume: first, is there a historical continuity with legal protections in war being informed by notions of ‘civility’ and ‘barbarity’?; second, what is the relationship between the ideals and operational realities in international humanitarian law (IHL)?; and third, what are the limitations of international laws designed to restrain excess in war? Via a brief overview of the divergent evolutions of jus ad bellum and jus in bello law, this introductory chapter further explores the sub-themes present in this volume: universalism and its shortcomings; problems with punishing violations of IHL; and the degree to which modern laws of war legitimate activities that should otherwise be prohibited.

This second historical chapter provides some important episodes in ICRC history between about 1910 (the death of both Dunant and Moynier) and the end of the Cold War (which is when the rest of the book takes off). Thus the chapter introduces the ICRC through a selected review of its history, emphasizing: the development of international humanitarian law and the global Red Cross network, helping to apply that law and Red Cross Fundamental Principles through assistance and protection in the field, and related activities such as protection of political prisoners. All of this sets the stage for a close analysis of the ICRC since the end of the Cold War and particularly since about 2012. If one wants to know if the ICRC is now in demise, one needs a picture of what it was and did in the past.

This chapter continues to examine the critics’ complaint that the modern ICRC has become distracted from its previous areas of expertise through its expanded activities in “other violence,” arguably neglecting in relative terms international humanitarian law and political prisoners. This chapter addresses the organization in the context of IHL. The chapter’s original contribution, beyond the way the background information is presented, is to analyze recent ICRC activity on two IHL subjects: customary IHL; and cyber warfare. On the first, the author finds the ICRC study on customary IHL absolutely central to recent developments, which fits with other third parties who find the ICRC “authoritative” in this legal domain. On the second, cyber warfare, the author finds the ICRC active, involved, and very much au courant about emerging developments. Neither aspect of IHL has been ignored or forgotten.

This essay examines the reciprocal contest of wills as mediated through the use of political violence from roughly 1773 to the end of the war in 1783. In other terms, it covers the escalating application of violence and how that led to outright war in April 1775, as well as the war itself. In both periods, violence was used to influence the will of one’s opponent and the political preferences of the undecided—but sometimes its political intent was exceeded, with escalatory effects. Three broad categories of violence are considered here. The first, “intimidative and catalytic” was primarily associated with the period from 1773 to 1776, in which violence was used by both sides, mostly publicly, to force political opponents to accede or step aside. Some of those efforts at intimidation catalyzed further violence, leading ultimately to armed military confrontation. Once the war had begun, the strong conventions associated with “war” shaped military behavior by both sides’ regular forces, although not always successfully, and always subject to logistical requirements. These behaviors form the second category of “Regular and Logistical.” The third category, “Retaliatory” was primarily associated with peripheral militia forces, which were much less restrained by the customs and usages of war, and often instead indulged in escalating retaliation.

The final discrediting of the Manchu regime’s traditionalism sparked a range of new efforts in domestic and also foreign policy, and fostered an embrace of international law as a vocabulary for the articulation of state interests and “rights” that would continually intensify across successive governments. From this point forward, Chinese positions on public law issues at the international and domestic levels would be closely related. This phenomenon was perhaps most strikingly illustrated in the often-overlooked but crucial Chinese role at the Second Hague Conference of 1907, where for the first time China’s delegates joined other marginalized states of the “Global South” to resist initiatives by great powers.

This chapter explores the British sack of stormed towns from the perspective of Wellington’s command. Throughout his career, Wellington was not always consistent in how he dealt with sacks. He learnt lessons in India, but seemingly those lessons had to be learnt again in Spain. From Wellington’s perspective, the challenge was to manage and contain sack rather than prevent it entirely, something that he considered nigh on impossible. Given the centuries long tradition of plundering stormed towns, the chaotic circumstances of storming operations, and the prevailing articles of war, Wellington had only a very limited capacity to control the behaviour of his troops once beyond the breaches. Still, during the Peninsular War, as had been the case in India, a clear trend emerges: Wellington made progressively greater efforts to prevent or minimise sack plunder, with the growing encroachment of the military justice system into the space of sack itself. Moreover, Wellington cared about the welfare of civilians within besieged and stormed towns: it was not the breakdown of troop discipline alone that concerned him about sack – there was a humanity at play, too, as guarded and infrequently expressed as it was, in this most demonstrably unsentimental of soldiers.

This book is the first major study of British soldiers’ violence and restraint towards enemy combatants and civilians in the siege warfare of the Napoleonic era. Using British soldiers’ letters, diaries and memoirs, Gavin Daly compares and contrasts military practices and attitudes across sieges spanning three continents, from the Peninsular War in Spain, to India and South America. He focuses on siege rituals and laws of war, storm and sack of towns. The book challenges conventional understandings of the place and nature of sieges in the Napoleonic Wars. It encourages a rethinking of the notorious reputations of the British sacks of this period, and their place within the long-term history of customary laws of war and siege violence. Storm and Sack reveals a multi-faceted story of not only rage, enmity, plunder and atrocity but also of mercy, honour, humanity and moral outrage.

This book is the first major study of British soldiers’ violence and restraint towards enemy combatants and civilians in the siege warfare of the Napoleonic era. Using British soldiers’ letters, diaries and memoirs, Gavin Daly compares and contrasts military practices and attitudes across sieges spanning three continents, from the Peninsular War in Spain, to India and South America. He focuses on siege rituals and laws of war, storm and sack of towns. The book challenges conventional understandings of the place and nature of sieges in the Napoleonic Wars. It encourages a rethinking of the notorious reputations of the British sacks of this period, and their place within the long-term history of customary laws of war and siege violence. Storm and Sack reveals a multi-faceted story of not only rage, enmity, plunder and atrocity but also of mercy, honour, humanity and moral outrage.

This chapter explores the fate of obstinate enemy garrisons who chose to withstand British breach assaults in the Napoleonic era. Under customary laws of war, British soldiers had the right to put such garrisons to the sword. In the sieges of the Peninsular War, British soldiers generally gave mercy to their French counterparts, part of a consistent pattern of self-regulating restraint that characterised Anglo-French combat during the war. A shared Anglo-French martial culture of honour and civility prevailed. Amongst other national enemies, however, in other contemporary global theatres of war, a very different picture emerges. British soldiers put defending Spanish and Indian troops to the sword at the sieges of Montevideo, Seringapatam and Gawilghur, raising important questions about the complex ways in which military and cultural factors coalesced, in shaping patterns of restraint and excess. These comparative case studies reveal the paradoxical Janus-face of enlightened ‘civilized war’ in action, with moderation and protections accorded to those enemy soldiers who fell firmly within its self-defining and self-limiting boundaries, and a dramatic lowering of restraints towards those combatants deemed to be on its margins or beyond.

This chapter spans the history of European siege warfare across the long eighteenth century, from the age of Louis XIV to the Napoleonic Wars. It lays out the key thematic groundwork and siege case studies explored in later chapters. The first half outlines the nature of ‘the siege’ as the classic form of old-regime positional warfare – its operational forms, temporal and spatial dimensions, and rituals and customary laws of war – and charts the relative historic decline of breach assaults and siege related massacres of garrisons and civilians in the eighteenth century. The second half shifts to the Revolutionary-Napoleonic era. It identifies the continuing importance of siege operations beyond their earlier high point in European military affairs; the regional and chronological shifts in sieges across the Napoleonic Wars; the nature of British siege operations in Continental Europe and the colonial sphere (India and South America); and ends with an overview of British and French sieges in the Peninsular War – the epicentre of Napoleonic siege warfare and of the storming and sack of besieged towns.

This chapter traces the United States’ status concerns from the early nineteenth century leading up to the 1856 Declaration of Paris. It examines the US approach to the maritime laws of war during this period and derives expectations for how the United States would react to an international agreement such as the Declaration of Paris from two competing perspectives: material interests and IST. It tests these hypotheses through a detailed account of the US approach to the international maritime order from the 1820s, when the United States began rising, to 1856, when the Declaration of Paris became the first universal instrument of international law; as well as in the opening stages of the Civil War when the Union government strongly considered signing the Declaration. It finds that contrary to the commercial interests and status aspirations that influenced initial US support for the maritime laws of war, the country’s leaders rejected the Declaration of Paris and sought to undermine it through an alternative (failed) treaty, because the United States was excluded from the deliberations leading to the Declaration and US leaders viewed the Declaration as relegating America to the status of a second-rate power.

The introduction outlines the conventional narrative that this book seeks to question: The idea that the allocation of the legal right to wage war only to sovereign states, penned by a humanitarianly minded Gentili and implemented in practice through the seventeenth century, became one of the core stabilizing factors of the new states-system in the aftermath of the cataclysmic Wars of Religion. It then lays out the book’s core argument along with its stakes for contemporary debates about the regulation of warfare in the international order.

The previous chapter outlined the personal, institutional, and political dynamics that played a part in Alberico Gentili’s nineteenth-century revival, in particular the emergence of the academic discipline of international law and the crafting of a historical narrative about its past. What we have yet to uncover is the specific story that emerged about Gentili’s greatness in his nineteenth-century context. In Chapter 3, we saw that in the aftermath of his death, Gentili had been remembered primarily for his absolutist writings. Two and a half centuries later, what story did his revivers tell to justify celebrating him as a founder of international law? This chapter argues that nineteenth-century international lawyers painted Gentili as the man who had invented the modern definition of war. In doing so, they gave us a popular narrative about the history of the laws of war that has prevented us from appreciating the profound changes that occurred in the regulation of war in course of the nineteenth century.