The Meanings of International Law
For Europeans, the 19th century world was divided: On the one hand were the “civilized” (Christian) states, in which fierce conflicts for political participation took place, but whose legal principles (the right to property, security, religious freedom) were increasingly regulated through constitutions and laws, and in which an ever greater legal equality emerged, and on the other hand the remaining territories and “uncivilized” (non-Christian) peoples outside Europe, whose legal status remained weakly defined.
The most important function of the liberal international law that emerged in the 1860s lay in regulating conflicts among European powers in the absence of a world sovereign.
Only when a people had become “civilized” to the degree that it possessed its own state was it accorded rights. “[B]arbarians,” as John Stuart Mill wrote in 1859, “have no rights as a nation, except a right to such treatment as may, at the earliest possible period, fit them for becoming one.”
The international standard of civilization did follow its own logic of imperial integration, which Martti Koskenniemi describes as “exclusion in terms of a cultural argument about the otherness of the non-European that made it impossible to extend European rights to the native, inclusion in terms of the native’s similarity with the European, the native’s otherness having been erased by a universal humanitarianism under which international lawyers sought to replace native institutions by European sovereignty.”
Thus in contrast to the constitutions of the era, natural rights arguments did still play a role in international law in a “civilizing” sense; however, they ultimately served European imperialism in that sovereignty was tied to a (European) standard of civilization. In the nineteenth century, international law continued to regard all territories of the world not controlled by sovereign states as terra nullius and thus as free to be occupied.
The attempts to “humanize” warfare also focused exclusively on conflicts among or within “civilized” states, and not, for example, on the suppression of revolts in the colonies, which assumed genocidal traits at the end of the century. The wars of the 1860s in Europe and the American Civil War had become increasingly brutal through the mechanization and democratization of killing. Compulsory military service allowed for larger armies and thus deployments with significantly higher casualties among soldiers. At the same time, media reports in the age of an expanding public sphere made the killing more immediate. During the American Civil War, Prussian émigré and political philosopher Franz (Francis) Lieber was commissioned to draw up guidelines for dealing with the rebels.
The Lieber Code, issued by Abraham Lincoln to the northern states in 1863, regulated the treatment of deserters and prisoners, regular troops, and partisans for the first time in the history of modern warfare. The report by Swiss entrepreneur Henri Dunant about the bloody Battle of Solferino in June 1859 between the Austrian army and troops of Piedmont-Sardinia and France led to the founding of the Red Cross in 1863 and a year later to the Geneva Convention, which the majority of European states and the United States adopted by the end of the century. Its provisions were expanded and elaborated at the Hague Peace Conferences of 1899 and 1907 encompassing, for instance, the protection of the civilian population during foreign occupation.
This new humanitarian international law was only selectively observed in the two world wars of the twentieth century. The jurisdification of war around 1900 thus stands in awkward tension with the lawlessness of warfare in the 20th century, in particular the systematic killings of enemy civilians.
