x-posted book review: A Scrap of Paper: Breaking and Making International Law during the Great War

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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

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.

Citation: 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. October, 2014.
URL: https://www.h-net.org/reviews/showrev.php?id=42200

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