A Scrap of Paper: Breaking and Making International Law during the Great War

The 1914 centennial has generated a barrage of work on World War I, much of it popular in character and intended for a broad audience. Historians of various stripes have taken turns to venture theories on the causes of the conflict, assign responsibility for the war’s outbreak to this or that coalition of states, or consider once again the Paris Peace Conference and League of Nations. Every passing day seems to yield a new opportunity to rethink both the war and the terms under which it finally was brought to an end: the Islamic State of Iraq and Syria (ISIS) goes out of its way to point to the 1916 Sykes–Picot Agreement when running roughshod over borders in the Levant; commentators on the Syrian Civil War regularly note that the prohibition of chemical weapons was strengthened in the 1925 Geneva Protocol, a direct result of World War I; and critics of state-building continue to study the Mandate System established immediately after the war as a key forerunner of contemporary forms of international territorial administration. All of this reinforces an already widespread interest in the Great War and its complex legacy—an interest that is felt with particular intensity among international lawyers, accustomed as they are to seeing Versailles as a watershed and the League as a promising, if ultimately unsuccessful, experiment in multilateral institution-building. None of this, of course, is especially surprising. Indeed, it would be remarkable if the Great War were not an object of serious interest in an age marked by a pervasive sense of instability and inequality. What is surprising, though, is that only a small portion of recent scholarship about World War I makes a serious attempt to address its specifically legal dimensions. Isabel V. Hull, a social and political historian who has written extens ively about the consolidation of militarism in late-19th and early-20th-century Germany, is keenly aware of this gap in the literature: as she notes in her preface, the last attempt to provide a genuinely systematic legal discussion of the war was made in 1920, when James Wilford Garner published his monumental International Law and the World War. Setting out to rethink the question of international law’s relevance to the actual conduct and conceptualization of the war, Hull trains her lens on a set of classic issues, chief among them Germany’s violation of Belgian neutrality, its indifference to much of the available international law of occupation, Britain’s imposition of a comprehensive maritime blockade, and recourse to aerial bombardment and unrestricted submarine warfare on the part of various states. While each of these issues has, of course, been examined in previous scholarship, few have been subjected to both rigorous legal analysis and extensive historical contextualization. This is precisely what Hull seeks to do, combining a lawyer’s attention to textual ambiguity with an historian’s ability to map the diplomatic terrain on which doctrines are deployed. At no point does A Scrap of Paper lose sight of the crucial point that it was by reference to the doctrinal and discursive architecture of international law that each of the states involved in the war sought to justify and win support for its actions (and, in some cases, its omissions). Whether it was on the basis of treaties guaranteeing neutrality, the Hague Conventions of 1899 and 1907, prohibitions of specific weapons and forms of warfare, contemporaneous developments in respect to maritime and occupation law, the tension between rebus sic stantibus and pacta sunt servanda, effusive invocations of “humanity” and “civilization” along the lines of the Martens Clause, the deeply contested nature of the distinction between civilians and combatants, or simply general principles of non-intervention and sovereign equality, the war was waged as much on the field of international law as on the actual fields of Flanders and Lorraine. This was so even—or especially—when international law was clearly contravened. All of this makes for a superb piece of legal-historical scholarship. Even so, A Scrap of Paper is not without its blind spots. Some readers, for instance, will take issue with the fact that Hull’s reconstruction of wartime legal debates within British political circles is considerably more charitable than her treatment of the way in which expansive notions of “military necessity” (and, even more loosely, Notstand) took hold of German foreign policy. Thus, while critical of some of the means whereby the British went about implementing their blockade, Hull is at pains to note that the Admiralty, Foreign Office, and War Cabinet frequently went to great lengths to obtain legal opinions from leading jurists, revising or even scrapping carefully designed military and diplomatic policies when this was thought necessary to comply with international legal obligations. This, of course, is intended to bolster her contention that questions concerning the meaning and relevance of specific treaties and customary rules were central to decision-making processes throughout the war, particularly so in the case of the Allied Powers. However, it also has the effect of overstating the contrast between the British and German “cases” to some degree. After all, as Hull recognizes, while it was couched as a reprisal and reliable figures are not available, the blockade was certainly responsible for the death of hundreds of thousands (p. 169). What is more, it is clear that the Kaiserreich, however great its responsibility for the war, also subjected the legal merits of competing proposals to sustained examination, albeit within structurally narrower parameters and always in the light of a hard-nosed “war positivism” (pp. 71, 318) with deep roots in the 19th century. A more fundamental problem stems from Hull’s nearly exclusive concern with the western front. Curiously, while Hull frames her book as a broad-based investigation into the manner in which international law was interpreted and applied during the Great War, she has astonishingly little to say about the complex and shifting role that it played in the Balkan, Caucasian, and Middle Eastern theatres of conflict. The lack of any sustained discussion of this sort is quite odd, given how crucial debates about the nature and applicability of the laws of war were to developments involving Russia, Austria-Hungary, and the Ottoman Empire, the three powers most directly invested in the these fronts. To take only a particularly well-known example, the Armenian genocide was understood by many at the time as a violation of established rules of customary international law, not to mention a breach of the Ottoman Empire’s numerous treaty-based obligations in respect to its non-Muslim minorities. Indeed, the Young Turks essentially repudiated the international law of minority protection, developed by the Concert of Europe largely in the context of the “Eastern question,” during the course of their drive to “cleanse” eastern Anatolia of its Armenian population. This was on many accounts the war’s single most blatant and large-scale contravention of international (and domestic) law—and one in relation to which German officials were anything but passive bystanders. The genocide also had the effect of generating new international law, in the long if not necessarily the short term. In May 1915, with massacres and deportations fully underway, the Russians drafted and circulated a diplomatic note that condemned Turkey’s crimes “against Christianity and civilization.” Anxious to avoid taking steps that would invite rebellion in India and Africa, the British and French had the wording altered to read “against humanity and civilization.” Yet, the notion of a “crime against humanity” began to enjoy greater traction, with the result that it eventually came to be recognized as a distinct offense under international law. Strangely, none of this makes an appearance in A Scrap of Paper. Nor, for that matter, does much of anything else relating to the eastern theatres, least of all the October Revolution and its enormous systemic consequences upon both the war and the resulting peace settlement. These difficulties are far-reaching. But they do not diminish the value of Hull’s achievement. Cogently argued and meticulously researched, A Scrap of Paper is an exceptionally detailed intervention in an increasingly sophisticated literature on the history of international law. Those with a strong interest in international law’s formation—as a discipline, as a set of argumentative techniques, and as a central point of reference for debates about international peace and justice—will not want to miss this book.

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