The Influence of War on the Manual

martial law had been declared over the occupied territories, now formally claimed as British colonies, despite the continuation of the conflict through guerrilla warfare. For this reason, the conflict may be considered as simultane­ously international and imperial. However, as the following examples will show, the influence of the war on the composition of Holland's pamphlet was not heterogenous.

4.1 Exploding Bullets and the 1868 St. Petersburg Declaration

Seemingly regardless of the actual applicability of the Hague Convention, al­legations of breaches of international law from both sides of the conflict circu­lated widely in newspaper reports during the opening months of the war.^{[1404] [1405] [1406]} Many of these concerned the alleged use of expanding dum-dum bullets, which had been officially prohibited by Declaration iii of the 1899 Hague Con­vention. Developed in munitions factories in India in 1896, dum-dum bullets were closely associated with the British imperial army?³ Criticised heavily dur­ing Hague Conference discussions, the use of and experimentation with ex­panding bullets had been staunchly defended by the military-technical dele­gate, John Ardagh?⁴ Ardagh emphasised the necessity of using expanding bullets in colonial conflicts against â€?savage’ or uncivilised opponents.^[1407] As a consequence, though considerably outnumbered, the British delegation had refUsed to sign Declaration iii of the Hague Convention.

Against this background, Holland’s inclusion in his draft chapter of the 1868 St. Petersburg Declaration, the precursor to Declaration iii of the Hague Con­vention, became a focus of criticism in the British government. Following the Russian development of expanding cap bullets in 1863, a conference had been instigated by the Russian War Minister, Dmitry Milyutin, with the purpose of sanctioning the use of projectiles beyond military necessity. Thring’s chapter on the laws of war in the Manual of Military Law had contained only very brief reference to this provision.

On the 1868 St. Petersburg Declaration, Holland had written in his original draft that contracting parties had renounced the use of certain explosive or flammable projectiles in warfare between themselves. He had also noted that this was not applicable in warfare with non-contracting parties and would similarly cease to be in effect should a non-contracting party enter a conflict^ In his explanatory notes, Holland added that Great Britain had not actually ac­ceded to the three Declarations signed at the Hague which prohibited expand­ing bullets, noxious gas projectiles, and the despatch of projectiles from bal- loons.7⁸ However, he explained that the prohibition to â€?employ arms, projectiles, or material of a nature to cause superfluous injury’, contained in the St. Peters­burg Declaration, would most likely cover the use of broken glass as a projec­tile, and â€?at any rate in European warfare, of expanding bullets’?⁹ Both this line and a further note on the prohibition of the â€?employment of savage auxiliaries or of wild animals’ were highlighted for removal in the War Office’s copy of the draft. The text of Declaration iii of the 1899 Hague Convention, which had been contained in the appendix, was also marked for removal. In their report, the Law Officers explicitly dictated that the line containing reference to expanding bullets and savage auxiliaries be deleted?⁰

It is possible that this section on expanding bullets and prohibited weap­onry provided reason for the Foreign Office to have Holland's proposed manual repressed. Certainly, Holland's references to broken glass, savage auxiliaries, and wild animals were imaginative extrapolations from the content of the treaties. Furthermore, Holland's assumption that the terms of the St.

4.2 Martial Law as International Law

In the introduction to the 1899 Manual of Military Law, Thring distinguished martial law from both military law and the customs of war as �unknown to English jurisprudence'^{[1409] [1410] Similarly, he argued that the concept of the �state of siege' was not applicable as any �disturbances to the peace' could be tried and sentenced under ordinary English law. Martial law therefore lay firmly outside the confines of the manual for British soldiers. This interpretation of martial law predominated in England, where martial law had not been formally de­clared since the 1628 Petition of Right. In contrast, martial law was regularly employed in the British colonies, though in the absence of coherent doctrine it was an elastic concept, whose characteristics varied substantially^3 During the South African War, martial law had been imposed throughout the conflict, amid continued uncertainty over its exacts rules and limits. In his draft manu­script, Holland gave martial law an extended examination, as a component of international law rather than of military or colonial rule.}

This position of martial law may be attributed to John Ardagh's initial close involvement in the project. In the course of his correspondence in 1901, Ardagh varyingly described himself as supervising or engaged in the writing of a hand­book of military law in conjunction with Professor Holland.^[1411] He frequently repeated his view that the integration of an authoritative section on martial law to this handbook was essential^[1412] Within Ardagh's papers are several sprawling handwritten memos outlining the chaotic evolution of his own views on martial law.

Holland's draft chapter described martial law as the rules adopted at the discretion of a Commander-in-Chief in the field, �supplementing, or wholly or partially superseding the laws ordinarily in force in a given district'^{[1414] [1415] Martial law was therefore still distinguished from the military law of the British Army, as contained in the Army Act. However Holland positioned martial law within the remit of the laws and customs of war, as the law guiding the actions of a commander of a hostile district.88 Martial law, he argued, was most stringent when hostile armies were in contact, and less so in districts of partial occupa­tion or conflict. Holland separated this administration of martial law from the application of �Martial Law in the Home Territory', which was martial law en­forced on occasion of invasion or rebellion. On these occasions, Holland ar­gued that, �the legality of the measures then taken is a question not merely of international law, but also of the national law of the country in question'[1416] Acts of Indemnity, which retrospectively legalised the actions of soldiers under martial law, could be applied in both cases. The outline of martial law pre­sented by Holland appeared directly influenced by the British experience in South Africa.}

By 1906, changes in the Army Act and Rules of Procedure warranted a reis­sue of the Manual of Military Law which had still not been altered since 1899. However, the Geneva Convention of that year and the prospect of another Hague Conference the following year complicated preparations for a new Chapter fourteen. Instead, it was eventually decided that the most efficient ap­proach was to simply to reissue the manual and to replace the chapter with the text of the international legal conventions to which Britain was a signatory, without explanatory note or context^[1418] This task again fell to Lord Thring. Thring also made slight modifications to the introduction, where he acknowl­edged that the expression �laws and customs of war’ would now be adopted instead of �customs of war’. Although this was followed with the same textual preamble as before (describing the idea of law to an Englishman and the vari­ation in enforcing these laws of war), it was followed by the admission by Thring that the �greater bulk of the rules in question have, within the last forty years, been reduced into definite shape and expressed in written agreements to which most civilised powers have become parties’^[1419] The widespread efforts towards codification of the laws of war could no longer by ignored.

In the 1907 Manual of Military Law, Thring also considerably edited the in­troductory section on martial law. Here, martial law was defined as the �sus­pension of ordinary law and governance of a country or parts of it by military tribunals’^[1420] It was distinguished from both military law and another type of martial law �which forms part of the laws and customs of war’.^[1421] Drawing from Albert Dicey’s Law of the Constitution, Thring reasserted that this first kind of martial law, based on the suspension of ordinary law, could not exist under the English Constitution, but that confusion on the subject had originated from the multiple, and conflicting contexts in which martial law was used by Eng­lish writers^[1422] He argued that the ability of the Crown to assume exceptional powers during invasion or rebellion, either in the United Kingdom or its pos­sessions, was an integral component of Crown prerogative under Common Law. Therefore, though these �exceptional powers’ contained many of the com­ponents of martial law - such as Acts of Indemnity - they could not be re­garded as martial law, due to the absence of the suspension of ordinary law.

If this is confusing, it appeared it was also so for the writer, who argued that soldiers did not need to concern themselves with these more complex questions of martial law that had largely arisen from the conflict in South Africa^[1423] Instead, following from the outcome of R v. Smith (1900), it was sufficient that once soldiers in areas under martial law took steps they felt necessary for the restora­tion of the peace, their actions would be covered by an Act of Indemnity^[1424] In an unusual and circular fashion, the principal source for Thring's explanation of martial law was quoted as Holland's 1904 Laws and Customs of War. Beyond his own inclusion in the project, Holland's work and the influence of war in South Africa had elevated the position of martial law so that it was viewed as in­cluded in the provisions of the �laws and customs of war'. Though it had been stripped of its �official' status, Holland's handbook on the laws of war had influ­enced the official Manual of Military Law written in 1907 by Thring. Despite being criticised by the Law Officers, his complicated division of martial law into two distinct forms, which had most likely originated with John Ardagh and the conflict in South Africa, had found its way back into the official War Office understanding of international law.

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