The late-nineteenth century saw a proliferation in the provision of instructions to troops in the field on how to conduct themselves during wartime. Influenced by Franz Lieber's 1863 field manual for soldiers, used during the American Civil War (1861-1865),
and the legal questions raised by the Franco-Prussian GerÂman War (1870-1871), in 1874 Czar Alexander ιι invited the major European powers to attend a conference in Brussels.
The resulting draft â€?Brussels Project of an International Declaration Concerning the Laws and Customs of War' (known as the 1874 Brussels Declaration) laid down basic rules governing the treatment of prisoners of war, spies, and â€?non-combatants', as well as the laws of belligerent occupation. Though the declaration was unratified, and so not binding on its signatories, representatives of the states present at the conferÂence undertook to publish legal guidelines to their soldiers in the field. In BritÂain this task fell to the War Office. From 1879 onwards the War Office prepared and published a Manual of Military Law which contained instructions for BritÂish soldiers on all aspects of military law, including the laws of war.This process of international legal codification culminated at the turn of the century in the 1899 Hague Conference.[1334] Gathering over one hundred delegates from twenty-six states, the Hague Conference built on the 1874 Brussels DeclaÂration, the Lieber Code and an 1880 sample field manual prepared by an assoÂciation of international lawyers, the Institut de Droit. The major breakthrough of the Hague Conference was that the signatories formally accepted and agreed
Koninklijke brill nv, leiden, 2020 | doi:10.ii63/9789004431249_020
Edward Cavanagh - 978-90-04-43124-9
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to ratify the text of the resulting Hague Convention. The Hague Convention therefore seemed to herald a new era in the codification of international law, and for at least a brief window, the prospect of limiting and defining the scope of international law on land seemed possible.
In light of this, Article I of the Convention contained an undertaking by all signatories to issue instructions to their armed land forces, in conformity with the new Hague regulations. To complete this agreement the British War Office decided to update the Manual of Military Law and employed an academic, Oxford's Chicele Professor of InterÂnational Law, Thomas Erskine Holland, to rewrite Chapter fourteen of the Manual of Military Law which dealt with the laws of war. Article I of the Hague Convention did not limit instructions to troops to the terms of the Convention but permitted guidelines to be issued â€?in conformity' with the regulations, alÂlowing scope for embellishments, additions and explanations. Holland's role was therefore to expand beyond the text of the Hague regulations themselves and to provide instruction on the laws of war in general to British troops.However, as soon as Holland finished his final draft of these instructions in 1903, he was pushed out by his employers. In an era of rapid change in the codiÂfication and establishment of international laws of war, Holland's involvement with the Manual of Military Law exposed the deep divisions in the British GovÂernment over the content and purpose of the codified laws of war. His convicÂtion in the binding nature of international conventions uncovered a tension between the academic and military understanding of how and when internaÂtional law was to be applied in conflict. Mired in layers of intergovernmental bureaucracy, the constant revisions his draft was subject to showed the multiÂple, and often contradictory, understandings of international law held by civil servants within the British government. International legal expertise, feigned or legitimate, was claimed by many individuals making up what Robinson and Gallagher called the â€?official mind of imperialism'.[1335] These officeholders and representatives were as disparate as the Law Officers of the Crown (Attorney General Robert Finlay and Solicitor General Edward Carson), Parliamentary Counsel (Lord Thring), Hague Conference delegate and former-Director of Military Intelligence (John Ardagh), and standing members of parliament (inÂcluding, among many, Hugh Arnold-Forster, Lord Lansdowne, and Richard Haldane).
To understand these divisions this chapter provides a close reading of the correspondence shared by key civil servants with some stake in the laws of war, and Great Britain's adherence to them, in order to explore the shifts in Holland's text and the reluctance of the government to commit to written codÂification on the laws of war. Contrasting Holland's approach to the Manual of Military Law with that of the previous compiler, Lord Henry Thring, the chapÂter explores the changing sources of the laws of war in an era of international codification. These changes are then situated in the context of the South AfriÂcan War (1899-1902), a cataclysm which preoccupied the secretariats of the Colonial Office, the Foreign Office, and the War Office like no other issue of the time. Together, these experiences and characters illustrate the disparate, and often convoluted, understandings of international law which contributed to the evolution of international legal thought in the British War Office.
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