A History of the Laws of War, Volume 2: The Customs and Laws of War with Regards to Civilians in Times of Conflict [2] 1849462054, 9781849462051

This unique new work of reference traces the origins of the modern laws of warfare from the earliest times to the presen

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A History of the Laws of War, Volume 2: The Customs and Laws of War with Regards to Civilians in Times of Conflict [2]
 1849462054, 9781849462051

Table of contents :
Cover
A History of the Laws of War: Volume 2: Civilians
A History of the Laws of War: Volume 2
Table of Contents
Treaties and Sources
Introduction
I Targets
1. Projectiles, Fire and Defended Areas
2. International Law on Projectiles Prior to the First World War
3. Between the Wars
4. The Second World War
5. The Nuremberg Trials and the 1949 Geneva Conventions
6. Between 1949 and 1977
7. The 1977 Additional Protocol 1 to the Geneva Conventions
8. From 1980 to the New Century
II Starvation
1. The Beginnings of Siege, Blockade and Scorched Earth
2. From The Enlightenment to the Twentieth Century
3. The First World War
4. The Second World War
5. After 1945
6. Two New Conventions and the Additional Protocols
7. Scorched Earth Between 1980 and the Twenty-First Century
8. Starvation in War Between 1980 and the Twenty-First Century
III Occupation
1. The First Literate Civilisations
2. Ancient Israel
3. The Greeks
4. The Romans
5. The Middle Ages
6. Forward From the Renaissance
7. The Enlightenment
8. International Humanitarian Law Emerges
9. Two Bad Decades
10. The First World War
11. The Armenian Genocide
12. Between the Wars
13. The Second World War
A. Rape
B. Reprisals
C. Killing Civilians in the East
D. The Holocaust in the West
14. Examining the Killing of Civilians at Nuremberg
15. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide
16. The 1949 Convention (iv) Relative to the Protection of Civilian Persons in Time of War
17. Between 1949 and 1977
18. The 1977 Additional Protocols and the 1979 Hostage Convention
19. Between Pol Pot and Saddam Hussein
20. The Wars of the 1990s
A. The Former Yugoslavia
B. Rwanda
C. Sierra Leone and Liberia
21. The International Criminal Court and its Aftermath
IV Property
1. Beginnings
2. The Greeks and the Romans
3. The Dark Ages
4. The Crusading Period
5. The High Middle Ages and the Renaissance
6. The Reformation and Early Enlightenment
7. The Nineteenth Century
A. Destruction
B. Pillage
8. The First Half of the Twentieth Century
A. Destruction
B. Spoils
9. The Second World War
A. Losing Cultural Property
B. Plunder
10. Forward From 1954
11. Realigning the Last Decades of the Twentieth Century
Conclusion
1. Targeting Civilians
2. Is Starvation a Restricted Method of Warfare?
3. Are the Practices in Times of Occupation, With Particular Regard to Genocide, Reprisals and Rape Better or Worse Than in the Past?
4. Is Property Safe From Pillage and Unnecessary Destruction?
Index

Citation preview

A History of the Laws of War: Volume 2: Civilians This unique new work of reference traces the origins of the modern laws of warfare from the earliest times to the present day. Relying on written records from as far back as 2400 BCE, and using sources ranging from the Bible to Security Council Resolutions, the author pieces together the history of a subject which is almost as old as civilisation itself. The author shows that as long as humanity has been waging wars it has also been trying to find ways of legitimising different forms of combatants and ascribing rules to them, protecting civilians who are either inadvertently or intentionally caught up between them, and controlling the use of particular classes of weapons that may be used in times of conflict. Thus it is that this work is divided into three substantial parts: Volume 1 on the laws affecting combatants and captives; Volume 2 on civilians; and Volume 3 on the law of arms control. This second book on civilians examines four different topics. The first topic deals with the targeting of civilians in times of war. This discussion is one which has largely been governed by the development of technologies which have allowed projectiles to be discharged over ever greater areas, and attempts to prevent their indiscriminate utilisation have struggled to keep pace. The second topic concerns the destruction of the natural environment, with particular regard to the utilisation of starvation as a method of warfare, and unlike the first topic, this one has rarely changed over thousands of years, although contemporary practices are beginning to represent a clear break from tradition. The third topic is concerned with the long-standing problems of civilians under the occupation of opposing military forces, where the practices of genocide, collective punishments and/or reprisals, and rape have occurred. The final topic in this volume is about the theft or destruction of the property of the enemy, in terms of either pillage or the intentional devastation of the cultural property of the opposition.

A History of the Laws of War: Volume 2 The Customs and Laws of War with Regards to Civilians in Times of Conflict

Alexander Gillespie

OXFORD AND PORTLAND, OREGON 2011

Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Alexander Gillespie 2011 Alexander Gillespie has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-205-1 Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall

This book is for my children, Jamie, Conor and Renée, with the wish that they never have to endure or witness any of the horrors I have recorded in these pages.

Table of Contents Treaties and Sources ix Introduction

1

I. Targets 9 1. Projectiles, Fire and Defended Areas 9 2. International Law on Projectiles Prior to the First World War 17 3. Between the Wars 20 4. The Second World War 24 5. The Nuremberg Trials and the 1949 Geneva Conventions 36 6. Between 1949 and 1977 37 7. The 1977 Additional Protocol 1 to the Geneva Conventions 39 8. From 1980 to the New Century 42 II. Starvation 52 1. The Beginnings of Siege, Blockade and Scorched Earth 52 2. From the Enlightenment to the Twentieth Century 65 3. The First World War 72 4. The Second World War 75 5. After 1945 81 6. Two New Conventions and the Additional Protocols 85 7. Scorched Earth Between 1980 and the Twenty-first Century 90 8. Starvation in War Between 1980 and the Twenty-first Century 96 III. Occupation 103 1. The First Literate Civilisations 103 2. Ancient Israel 108 3. The Greeks 110 4. The Romans 114 5. The Middle Ages 122 6. Forward from the Renaissance 134 7. The Enlightenment 141 8. International Humanitarian Law Emerges 150 9. Two Bad Decades 152 10. The First World War 155 11. The Armenian Genocide 157 12. Between the Wars 160 13. The Second World War 165 A. Rape 165 B. Reprisals 167 C. Killing Civilians in the East 171

viii  Table of Contents

D. The Holocaust in the West (i) The Camps (ii) The Question of the Red Cross 14. Examining the Killing of Civilians at Nuremberg 15. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide 16. The 1949 Convention (IV) Relative to the Protection of Civilian Persons in Time of War 17. Between 1949 and 1977 18. The 1977 Additional Protocols and the 1979 Hostage Convention 19. Between Pol Pot and Saddam Hussein 20. The Wars of the 1990s A. The Former Yugoslavia B. Rwanda C. Sierra Leone and Liberia 21. The International Criminal Court and its Aftermath

172 174 176 177

IV. Property 1. Beginnings 2. The Greeks and the Romans 3. The Dark Ages 4. The Crusading Period 5. The High Middle Ages and the Renaissance 6. The Reformation and Early Enlightenment 7. The Nineteenth Century A. Destruction B. Pillage 8. The First Half of the Twentieth Century A. Destruction B. Spoils 9. The Second World War A. Losing Cultural Property B. Plunder 10. Forward From 1954 11. Realigning the Last Decades of the Twentieth Century

211 211 217 224 229 234 238 242 242 246 252 252 256 259 259 265 273 277

Conclusion 1. Targeting Civilians 2. Is Starvation a Restricted Method of Warfare? 3. Are the Practices in Times of Occupation, with Particular Regard to Genocide, Reprisals and Rape Better or Worse than in the Past? 4. Is Property Safe from Pillage and Unnecessary Destruction?

285 285 286

182 183 187 195 198 201 203 206 206 208

289 291

Index 295

Treaties and Sources The 493 BCE Cassian Treaty, in Champion, C (ed) (2004) Roman Imperialism (London, Blackwell) 72. The 421 BCE Peace of Nicias in Ferguson, J (ed) (1978) Political and Social Life in the Great Age of Athens: A Sourcebook (London, Open University Press) 420–21. The 241 BCE Peace Treaty between Rome and Carthage in Lewis, N and Reinhold M (eds) Roman Civilisation: Records, Vol 1 (Columbia, Columbia University Press) 153. The 201 BCE Peace Treaty with Carthage in Lewis, N and Reinhold M (eds) Roman Civilisation: Records, Vol 1 (Columbia, Columbia University Press) 171. The 189 BCE Treaty of Roman Alliance with the Aetolian League in Lewis, DM (1994) The Cambridge Ancient History, Vol 1 (Cambridge, Cambridge University Press) 170. The 989 Peace and Truce of God at the Council of Toulouges in Herlihy, D (ed) (1970) The History of Feudalism (NYC, Harper) 286–87. The 1027 Truce of God in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 18. The 1054 Truce of God in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 20. The 1192 Treaty Between Richard the Lionheart and Saladin in Axelrod, A (ed) (2001) Encyclopaedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 17. The 1201 Treaty of the Crusaders with Venice in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 63. The 1360 Treaty of Bretigny in Laffan, R (ed) (1929) Select Historical Documents: 800– 1492 (NY, Holt) 165. The 1697 Treaty of Ryswick in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 59. The 1763 Treaty of Hubertsburg in Axelrod, A (ed) (2001) Encyclopaedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 92. The 1791 Bill of Rights in Birley, R (ed) (1944) Speeches and Documents in American History, Vol I, 1776–1815 (Oxford, Oxford University Press) 171. The 1808 French Treaty with Holland, 16 March 1810, De Clercq, Traites, II, 328–30 in Fyffe, CA (1891) A History of Modern Europe: 1792–1878, Vol I (London, Cassell) 436-41. The 1814 Treaty of Paris in Axelrod, A (ed) (2001) Encyclopaedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 189. The 1815 Treaty of Paris in Axelrod, A (ed) (2001) Encyclopaedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 189. The 1848 Treaty of Guadalupe Hidalgo in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 222. The 1864 Treaty of Peace Between Austria, Prussia and Denmark in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press) Art XII.

x  Treaties and Sources

The 1866 Treaty of Peace Between Austria and Prussia in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press). The 1871 Treaty of Peace Between France and Germany in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press) 78–85. The 1895 Treaty of Shimonoseki in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 316. The 1898 Treaty of Paris in Birley, R (1944) Speeches and Documents in American History, Vol III (Oxford, Oxford University Press) 240–41. The 1899 Hague Convention which included four sections (I) Pacific Settlement of International Disputes; (II) Laws and Customs of War on Land; (III) Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864; and (IV) Prohibiting Launching of Projectiles and Explosives from Balloons. Full texts of the Hague Conventions can be found at Yale Law School ‘The Avalon Project’ http://avalon. law.yale.edu/subject_menus/lawwar.asp. The 1907 Convention (VI) Status of Enemy Merchant Ships at the Outbreak of Hostilities. Full text can be found at Yale Law School ‘The Avalon Project’ http:// avalon.law.yale.edu/20th_century/lawwar.asp. The 1907 Hague Convention (IX) Bombardment by Naval Forces in Time of War. Full text of the Hague Conventions can be found at Yale Law School ‘The Avalon Project’ http://avalon.law.yale.edu/20th_century/lawwar.asp. The 1913 Treaty of Peace Between Greece, Bulgaria, Montenegro, Serbia and Turkey in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press). The 1919 Treaty of Versailles in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 425. The 1940 Franco-German Armistice in Thomson, D (ed) (1969) France: Empire and Republic, 1850–1940 (NYC, Harper) Art 18. The 1948 Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 at 71, Art 17. The 1949 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277. The 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Times of War, UNTS No 973, Vol 75, 287. The 1951 Treaty of Peace with Japan in Axelrod, A (ed) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 626. The 1954 Convention for the Protection of Cultural Property in Times of Armed Conflict 249 UNTS 215. The 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3. The 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609. The 1980 Convention on Certain Conventional Weapons,1342 UNTS 137. The 1993 Comprehensive Peace Agreement In Liberia (Cotonou Agreement), UN Doc No S/26272.

Treaties and Sources xi

The 1997 Chemical Weapons Convention, adopted by the General Assembly in Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction. This can be found in UNGA, A/RES/47/39.

Introduction 1.  The Conversation on Sunday Afternoon

t

he topic of this book is the customs and laws of war with regards to civil­ ians in times of war. This book is accompanied by two other books, which deal with the customs and laws of war with regards to combatants and captives, and weapons. All three of these books began with a discussion I had with my mother over 12 years ago towards the end of the twentieth century, on whether the practices of humanity were better or worse than in the past. Simply put, ‘was humanity making progress or not?’ Whilst I argued in the affirmative, my mother argued in the negative. As with many such lunchtime discussions on Sunday afternoons, trying to find robust benchmarks was (and is) very difficult, if not impossible. Although the conversation on this particular Sunday afternoon moved on to other topics, this question of ‘progress’ caught me. 2.  Progress, Utopia and Warfare There are many philosophical discussions around the idea of ‘progress’.1 These discus­ sions are often linked to various forms of Utopian thinking.2 I struggle to think of an appropriate figure for how many gallons of ink have been expended in debates on this question, or suggestions of the correct path to Utopia, where the difficulties of the past are bypassed and a bright future awaits humanity. There is no monopoly on these plans, and the libraries are looking rather full on these variations of themes which run for thousands of miles of shelving, from theology to ideology, cross referenced with a bewildering collection of historical epochs and philosophical musings. These questions have received a great deal of attention since the end of the Cold War, and the triumph of liberal democracies and limited forms of free market capitalism. Despite the attrac­ tiveness of such a thesis, this book is not about such questions. For me, to answer a question about progress required an examination of a topic somewhat more concrete, and somewhat more difficult. The topic I settled on was warfare, and in particular, those who fight, those who do not fight but are caught up in the conflict, and the weap­ ons that are utilised. I settled on these three themes by which to measure progress as to find advancement when humanity is at the lowest point of its relationships is a much more honest test, than studies of when everything is going well. 1   Doren, V (1969) The Idea of Progress (NYC, Praeger); Hiderbrand, G (ed) The Idea of Progress: A Collection of Readings (Los Angeles, California University Press); Melzer, A (ed) (1995) History and the Idea of Progress (NYC, Cornell University Press); Marx, L (ed) Progress: Fact or Fiction (NYC, Michigan University Press). 2   Manuel, F (1979) Utopian Thought in the Western World (NYC, Harvard University Press); Manuel, F (ed) (1969) Utopias and Utopian Thought (NYC, Condor); Buber, M (1949) Paths in Utopia (London, Routledge); Mumford, L (1962) The Story of Utopias (NYC, Viking); Bernini, M (1950) Journey Through Utopia (London, Routledge).

2  Introduction

The other reason I decided to examine the topic of warfare was because the ques­ tions humans face in this area are remarkably constant and consistent. The term ‘human’ in the context of human evolution refers to the genus Homo, and the sub­ species, sapiens, (meaning ‘wise man’ or ‘knowing man’). Anatomically modern humans appear from about 200,000 years ago, and started to move out of Africa between 100,000 to 50,000 years ago. During this process, it appears that our direct ancestors gradually marginalised the ‘archaic’ homo varieties. It is possible that this ‘wise’ or ‘knowing’, species, in combination with natural factors like climate change, systemati­ cally drove our closest genetic relatives such as the Neanderthals, to extinction. This is a common assertion to make due to the fact that around 40 per cent of Neanderthal remains have fractured skulls, and the earliest injuries that can be conclusively ident­ ified as being caused by weapons, are also on Neanderthals.3 Our victorious stone-age ancestors then went on to develop agricultural systems between 8500 and 7000 BCE and civilisations around 3000 BCE, which were leaving written records. This epoch, known as the Bronze Age, is the starting point of this book. The end point of this book is 5,000 years later, which is the Nuclear Age. Throughout this period, warfare has been a consistent pattern in human history. I am of the belief that the people who formed these countless generations, although different in terms of technology and social organisation, are essentially the same as their descendants today. Anatomically, and I expect emotionally, the people of the twenty-first century are probably much closer to our historic cousins than we care to admit. This contention is important for this book, as many of the practices examined and questions raised by them allow me to pose the question of whether we, as a species, have progressed over the last 5,000 years when dealing with essentially the same issues, albeit in different historical epochs and with different technologies. That is, the human context on whether to intention­ ally kill civilians, torture prisoners, or use indiscriminate or unusually cruel weapons in times of war, whether thousands of years ago, or three days ago, is essentially the same. 3 .  Facts As I began this project, it quickly became apparent that is was near impossible to answer these questions as there was no cumulative history on all of the acts which I wished to examine. Whilst there are between dozens and thousands of studies on each topic at hand, there was no comprehensive collection of the evidence and facts from which analysis could begin. For example, whilst there is a lot written about the destruc­ tion of cultural property in war, most of the work focuses on one particular period. Such a study will typically be about the law, or the particular history, of an episode at hand. Rarely will a study look at the way the same issue has been dealt with, in custom and law, over the last 5,000 years, through different ages. This rationale applies to every theme in this book. As such, the collection of this evidence and facts, became the foundation of this book. This is an important point, for a large part of my thinking in this book is the Latin principle, res ipsa loquitur (the facts speak for themselves). That is, the thematic practices of 5,000 years of warfare should allow the reader to make up 3   Carman, J and Harding, A (2009) Ancient Warfare (The History Press, Glocestershire) 56–58; Wong, K (2010) ‘Twilight of the Neanderthals’ in Selections on Evolution (NYC, Scientific American) 23–29; Keegan, J (1993) A History of Warfare (London, Hutchinson) 116–22.

Facts 3

their own minds on whether there has been success, or failure, in some of these areas. My interpretations at the end are only the way that I see the evidence. I have no doubt that others will see it differently. Before I go on, it is necessary to underline two points about ‘the facts’. The first concerns the question of numbers. All numbers in this book should be treated with caution. I have tried at all points to give the best figures that are possible, often after looking at examples from multiples sources. Nevertheless, historians and commenta­ tors make mistakes for all sorts of reasons, which appear to range from simple mistakes to pure political manipulation. Even with contemporary wars, such as the conflict in Iraq in the twenty-first century, there are large debates about the numbers of civilians being killed.4 More often than not, numbers are manipulated for political reasons. In this regard, the importance of a free and independent reporting of military conflicts must always be highlighted. Although all governments at times of conflict despise this principle, I can think of few times more important for citizens to be able to obtain full and frank information of all acts done to, and by, their military forces and civilians. This is necessary, as all too often, the first casualty in times of war is truth.5 The second point on ‘facts’ relates to the sources that are used in this book. The methodology of this book is somewhat complicated. The skeleton on which it is built is treaties. I place a great weight on the bilateral and international instruments of each age, as despite all of the difficulties of different languages and different ages, treaties and/or agreements reflect in the clearest way possible how different nations see a shared problem and shared solution. As the reader will see, I also try to directly quote the applicable law in each instance. For the purpose of this study it is important to show that the governing rules are often much easier to understand (even if unpaleta­ ble) than many commentators pretend them to be. As such, at each point, the law on the question has been set out as simply as possible. In places where there were no treaties, the bones are taken from the practice of key players of the period, which often became custom. In each epoch I have attempted to read and quote the original sources. These have often been supplemented by the best monographs I can find on each epoch. After the Enlightenment, the modern literature is much more plentiful and it is much easier to identify and trace important inter­ national events in treaties, custom and literature. This is especially so with events since the beginning of the twentieth century, and more so, since the Second World War. With regard to the later epoch, I have been able to find, read and incorporate, inter alia, every Security Council resolution which is related to the topics at hand. I have done this because the Security Council, in the absence of clear international rules or rulings by the International Court of Justice, is the next best source for obtaining a definitive interpretation on an area. 4  Otterman, M (2010) Erasing Iraq: The Human Costs of Carnage (London, Pluto) 7–13; Anon (2009) ‘Iraq Casualty Row’ New Scientist (Feb 14) 6; Biever, C (2007) ‘Winning the War for Iraq’s Dead’ New Scientist (21 April) 44–45; Osborne, B (2007) ‘Wartime Estimates of Iraqi Civilian Casualties’ 868 International Review of the Red Cross. 5   Knightley, P (1975) The First Casualty (London, Pan) 269; Eilders, C (2005) ‘Media Under Fire: Fact and fiction in conditions of war’ 860 IRRC 34–56; Majid, A (2007) ‘The Crisis of Professional Responsibility in Iraqi Journalism’ 868 IRRC 893–913; Boegli, U (1998) ‘A Few Thoughts On the Relationship Between Humanitarian Agencies and the Media’ 325 IRRC 627–31; Gutman, R (1998) ‘Spotlight on Violations of International Humanitarian Law: The Role of the Media’ 325 IRRC 619–25; Balguy, A (2004) ‘The Protection of Journalists and News Media Personnel in Armed Conflict’ 853 IRRC 37–68.

4  Introduction

Although the information on conflicts of the twentieth century is in relative abun­ dance, the same cannot be said for many contemporary conflicts, where reliable sources can be quite patchy, and it is not until a few years have past, that good analysis of an area can be achieved. Of course, this is not always the case as in some instances, some non-governmental sectors provide excellent, up-to-date analysis on a number of contemporary issues. The source I have adopted most frequently in this regard for the conflicts since the 1990s has been Human Rights Watch, which I have found to be most reliable. 4.  Progress in the Area of Civilians in Times of War This book is not about the way the world should be, it is about the way the world has been, and how humans have responded to each other in times of warfare, over the last 5,000 years. For the purpose of this study, if progress is to be measured, the question is, are civilians safer now in times of war than earlier? To answer this question, the topic descends into four subsidiary questions. These are: Are civilians targeted less in times of war? I chose this question because I am of the belief that progress could be measured if civilians were targeted less during times of war. In terms of definitions for the purpose of this book, the topic of targeting is about aiming at, or near, civilians in times when they are not under a situation of occupation. As such, they are being targeted from ‘outside’ where they are based. The goal in this area is that civilians should not be intentionlly targeted and collateral damage, if any, is kept to an absolute minimum. Is starvation a restricted method of warfare? This question is important because the starva­ tion of civilians is one of the most common results of warfare. In terms of definition, the pattern of starvation is usually another type of warfare where the non-combatants are not under occupation. Starvation is a particularly unique topic as unlike many other acts of warfare, hunger and/or dehydration is something which every human understands. Every day at some point during a 24-hour cycle, the vast majority of us are either hungry or thirsty. If the period between having food is too long, starvation will result. Starvation is the severe reduction in vitamin, nutrient and energy intake. It is the most extreme form of malnutrition. In humans, prolonged starvation can cause permanent organ damage and, eventually, death. Dehydration is defined as an exces­ sive loss of body fluid. It is literally the removal of water from an object. In physiologi­ cal terms, it entails a deficiency and not complete removal, of fluid within an organism. While the human body can survive without food for about five weeks, the body cannot survive without water for longer than three days.6 These physiological facts have not changed over millions of years of evolution. They are, without doubt, part of what makes humanity relatively weak as a species. They are also a pressure point that has been long known in warfare between humans. Despite such practices, it is rare that warfare alone causes starvation. More often than not, it is when war intersects with other pestilences, such as ecological and/or economic scarcity, coupled with disease, that the impacts are greatest. Ecological scarcity, when linked to the practices of   See Russell, S (2006) Hunger: An Unnatural History (NYC, Basic) 1–16.

6

Progress in the Area of Civilians in Times of War 5

warfare, is about destroying the environment or the physical basis upon which human populations depend. This dependence may range from food sources to fresh water. Targeting and controlling access to these resources, in either a raw or processed form, is a pattern of warfare which also goes back thousands of years and is also known as ‘scorched earth’. Are the practices in times of occupation, with particular regard to genocide, reprisals and rape better or worse than in the past? The third theme in this book is about particular types of acts which directly target non-combatants in times of occupation. The goal in this area is that if civilians are under the occupation of a military force, they should not be killed en-masse (or individually), raped, be held as hostages or be the subject of reprisals. The difficulty is that such acts are part and parcel of 5,000 years of recorded warfare, in which there have been clear intentions to target civilians. All of the acts occur when the victims are within the physical control of the aggressors. As such, they are all acts committed in times of occupation. This is unlike the type of warfare where civilians are the targets but their territory is not occupied, or victims of starvation, where there is usually no physical control or occupation, as such, of their territory. This chapter will show that the most obvious atrocities under situations of occupation are the sub­ jecting of defeated populations whose defensive walls had been breached to the unre­ strained will of the victor after earlier terms to surrender have been offered to the besieged – but rejected. This is one of the longest standing rules of warfare. This chapter will also discuss the practices of genocide, rape and reprisals against civil­ ians. The crime of genocide is found in acting, conspiring, being complicit in or inciting another to ‘destroy, in whole or in part, a national, ethnical, racial or religious group’.7 The specific components may involve killing or causing serious bodily or mental harm to members of the targeted group. Alternately, it may involve deliberately inflicting conditions of life calculated to bring about the physical destruction, in whole or in part, of the group, and/or imposing measures intended to prevent births within the group or forcibly transferring children of the group to another group. Such acts are genocidal whether committed in war or peace. The key to this crime is the organised and system­ atic intention to destroy the targeted group. Genocide cannot be committed in an ad hoc manner or without explicit intention. Rape describes the non-consensual penetra­ tion of the body of a victim with a sexual organ, or of the mouth, anal or genital open­ ing of the victim with any object or any other part of the body, committed by soldiers, other combatants or civilians during times associated with armed conflict. Reprisal is a Latin word, meaning retaliation. In the context of the laws of warfare, reprisals, apper­ taining to a limited and deliberate violation of the laws of war to punish an enemy which has already broken the rules, are also long-standing. Although reprisals can also be against combatants, for the purpose of this chapter they are about civilians. The problem is that throughout history, reprisals are often impossible to distinguish from retaliation, retribution, revenge and uncontrolled hatred. The people who are normally the ones who have reprisals pressed upon them are held as hostages. Broadly, hostages are non-combatants who are liable to be brought to account for the acts of others.8   Convention on the Prevention and Punishment of the Crime of Genocide 1948, Arts 2 and 3.   There is no agreed international definition of ‘hostage’. The only guidance that can be obtained in inter­ national law comes from the International Convention Against the Taking of Hostages 1979, and even this only went so far as to define hostage-takers (‘person who seizes or detains and threatens to kill, to injure or to 7 8

6  Introduction

Is property safe from pillage and unnecessary destruction? The final chapter of substance in this book is about the theft and destruction of the property of civilians. This property is usually valuable in financial and/or cultural terms. The goal in this area is that the the personal or collective property of civilians is not unnecessarily stolen or destroyed dur­ ing times of conflict. This goal always has to be tempered by the realisation that prop­ erty is destroyed in times of warfare. The question is whether such destruction is necessary or not. In terms of human history, this is a relatively modern question. More often than not the theft and/or destruction of the property of the vanquished have gone hand in hand, being within the prerogative of the victor. As such, victors have been allowed to steal what is economically valuable and/or destroy that which is threatening to the victorious ideology. The theft of property in times of conflict is often known as ‘spoils of war’. ‘Spoils’ comes from the Latin word spolium, which translated, means the ‘hide of the animal’. It later came to be associated with the arms or armour stripped from an enemy, hence booty, prey or spoil. In time, anything taken from a country after a war was known as spoil. The use of the word spoil can be traced to the year 1300 AD. The key to the thinking about this term, for this chapter, is that it is about the property of other peo­ ple taken during times of war. Roughly, this may be divided into plundered goods, plundered people and plundered countries. This chapter is not about the acquisition of lands as such or the taking of peoples as slaves or soldiers for ransom. However, this chapter does include discussions of tribute as a type of spoil. That is, tribute as in material given in accordance with a treaty whereby kingdoms retain parts of their independence – but at an economic cost, or in accordance with the terms of surrender. Although tribute via a treaty is not acquired as pillage during or immediately after conflict, the result – namely the transfer of property of an artistic or economic value to a victor or more powerful opponent, has exactly the same result; namely, one side loses something of economic and/or cultural value because of the war or the threat of it. The other theme in this last chapter of substance pertains to the destruction of the property of civilians, especially so called ‘cultural property’9 when it is not justified by military necessity. There is both a horror at, and a fascination for, the intentional destruction of human monuments. This is especially so when the destruction encom­ passes cultural property which is intimately connected to the history of a people. Often it is hard to specifically find such intention as the practices of sack and destruction are indiscriminate in what gets swept before them. However, often this is not the case and belligerents go out of their way to destroy – as opposed to steal – inanimate objects. They do this because the destruction of cultural property is different to other forms of continue to detain another person in order to compel a third party to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage’) – not hostages – involved in acts of international terrorism. That is, this definition did not deal with hostage taking in times of conventional conflicts. 9   By definition of Art 1 of the Convention for the Protection of Cultural Property in Times of Armed Conflict 1954, cultural property may include monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which are, as a whole, of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; buildings whose main and effective purpose is to preserve or exhibit the movable cultural property such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, movable cultural property; and centers containing a large amount of cultural property as defined above, to be known as ‘centers containing monuments’.

Progress in the Area of Civilians in Times of War 7

warfare, for in intentionally targeting the inanimate, acts of domination, terror and eradication can be forced on the defeated that cannot be achieved with the killing of the living. This is because the target may represent historical memory which is far beyond its weight in mortar, stone or money. That is, a library, a mosque or a monument are the physical reminders of a people and their collective memory. The significance of the destruction of such memory via the eradication of the structures that encompass it, for both the victor and the loser, cannot be underestimated. This is especially so when dealing with nationalist, ethnic or fundamentalist ideologies who wish for a clean slate without the depth of backgrounds created by previous and current generations.

I Targets 1.  Projectiles, Fire and Defended Areas

T

he ability to throw, to commit violence at a distance with rock, spear, javelin, dart and/or arrows, transformed hominids from prey to predator and made them the first creatures of any size who could effect change from afar. When this was ability was combined with the control of fire, humanity had become truly dangerous. Fire is the rapid oxidation of a combustible material releasing heat, light and various reaction products such as carbon dioxide and water. If hot enough, the gases may become ionised to produce plasma. Fire in its most common form can result in conflagration, which has the potential to cause physical damage through burning. The fossil record of fire first appears with the establishment of a land-based flora about 470 million years ago, some 400 million years before humans evolved as a separate genus on Earth. However, the quickly evolving species, was fast to recognise the utility of fire. The ability to control fire was a major change in the habits of early humans. Evidence of cooked food is found from 1.9 million years ago, although fire was probably not used in a controlled fashion until 400,000 years ago, of which evid­ ence becomes widespread around 50 to 100 thousand years ago. The use of fire in warfare also has a long history. Hunter-gatherer groups around the world have been noted as using grass and forest fires to injure their enemies and destroy their ability to find food, so it can be assumed that fire has been used in warfare for as long as humans have had the knowledge to control it. Experts suggest that by the end of the Pleistocene epoch, homo sapiens had mastered fire as a weapon to be attached to their arrows or spears,1 and had thus created the first incendiary weapons.2 1   Crosby, A (2002) Throwing Fire: Projectile Technology Through History (Cambridge, Cambridge University Press) 63. 2   An incendiary weapon is any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or a combination thereof, produced by a chemical reaction of a substance delivered on the target. Such weapons can take the form of, for example, flame-throwers, shells, rockets, grenades, mines, bombs and other containers of incendiary substances. See the Protocol on Prohibitions or Restriction on the Use of Incendiary Weapons (Protocol III to the Convention on Conventional Weapons), Art 1. Incendiary weapons do not include munitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems; or munitions designed to combine penetration, blast or fragmentation effects with an additional incendiary effect, such as armour-piercing projectiles, fragmentation shells, explosive bombs and similar combined-effects munitions in which the incendiary effect is not specifically designed to cause burn injury to persons, but to be used against military objectives, such as armoured vehicles, aircraft and installations or facilities. The unifying consideration of all of these examples is that they are all incendiary, in that they are designed to make objects, or people, catch fire. Humans caught in the open by modern napalm attacks have little defence. The jellied mixture sticks to virtually everything it touches and is virtually impossible to remove. Death occurs by burning and carbon monoxide poisoning.

10  Targets

Humans began using spears about 400,000 years ago. By 50,000 years ago, what we recognise as javelins were in clear existence, along with atlatls 17,500 years ago. These weapons could throw a dart more than 200 metres. Most experts date the earliest unambiguous evidence of bows and arrows at 10,000 to 12,000 years ago in the late Palaeolithic Age. Studies suggest these early projectiles had a range of about 25 metres.3 Against such technological advancements, the first fortifications were being built within the Neolithic Age. Stone walls 12 feet high and six feet wide with high towers were erected around 7500 BCE at Jericho near the Dead Sea. By 2500 BCE, and the clear settling in of the Bronze Age, fortifications were all around Sumner. The walls of Mesopotamian cities, such as Ur, measure 100 feet at the base and may have been 60 feet high. From these first fortified cities, humans found safety and protection.4 Whilst Plato (428–348 BCE) may have been correct that such fortifications were ‘unhealthy’ and the ideal city should have no walls at all5 – as the Spartans attempted to implement – the pragmatism of Aristotle (348–322 BCE), that walls were necessary and sometimes needed to hide behind, became the approach of most, if not all, human civilisations.6 This became necessary as the means to attack those seeking refuge behind the walls continued to increase. The Bible records that the towers and bastions of Jerusalem had engines placed upon them that could, ‘discharge arrows and large stones’.7 The first siege engines appeared around 460 BCE. Catapults appeared in 399 BCE. The trebuchet, which managed to smash walls or to throw projectiles over them, emerged in the middle of the first millennium AD.8 Humans used burning arrows, a nasty weapon in a world with wicker huts and thatched roofs, long before written records began. Records of such uses appear around the ninth century BCE when Assyrians were pitching firepots into the towns they were besieging. The use of incendiary arrows being fired into besieged towns can be traced to 1500 BCE at least. Within centuries, the vulnerability of wooden walled cities to flaming arrows, as Athens discovered in 480 BCE, was common knowledge. By 413 BCE, fire was recognised as a weapon which could cause terror, as Euripides (480–406 BCE) portrayed with his play Medea, when the central character could not escape her flaming dress. This play followed the systematic attempts to burn out defended areas which were full of both soldiers and civilians during the Archidamian war.9 3  Carman, J and Harding, A (2009) Ancient Warfare (Gloucestershire, The History Press) 108–12; O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 30–33, 75. 4   Dawson, D (2001) The First Armies (London, Cassel) 86; Keeley, L (1996) War Before Civilisation (Oxford, Oxford University Press) 55–58. Doyne, D (2001) The First Armies (London, Cassel) 17; Trigger, B (1999) Ancient Egypt: A Social History (Cambridge, Cambridge University Press) 50, 95, 104; Edwards, I (ed) (1971) The Cambridge Ancient History. Early History of the Middle East, 3rd edn, Vol 1(2) (Cambridge, Cambridge University Press) 214–18. 5   Plato in trans Pangle, TL (1988) Laws (Chicago, University of Chicago Press) 778–79a. 6  Aristotle in trans Everson, S (1996) Politics (Cambridge, Cambridge University Press) 1330b33– 1331a24; Ferrill, A (1988) The Origins of War (London, Thames & Hudson) 30, 145–46. 7   2 Chronicles 26:15. 8   Van Wees, H (2009) Greek Warfare: Myths and Realities (London, Duckworth) 140–43; Dawson, D (1996) The Origins of Western Warfare (NYC, Westview) 39; Crosby, A (2002) Throwing Fire: Projectile Technology Through History (Cambridge, Cambridge University Press) 85, 87. 9   Crosby, A (2002) Throwing Fire: Projectile Technology Through History (Cambridge, Cambridge University Press) 88; Snow, R (2005) Battle (London, DK) 17; Edwards, I (ed) (1973) The Cambridge Ancient History. History of the Middle East and Aegean Region 1800–1380 BCE, 3rd edn, Vol II(1) (Cambridge, Cambridge University Press) 4; Bury, J (ed) (1969) The Cambridge Ancient History. Athens, Vol 5 (Cambridge, Cambridge University Press) 212.

Projectiles, Fire and Defended Areas 11

Pitch, the flammable resin tapped from pine trees, changed the nature of warfare by fire. The Spartans added sulphur to the mix (which also created a poison gas), whilst others added bitumen and/or lime dust.10 Variations on the mix of different flammable liquid mixtures of other hydrocarbons, including petroleum and/or coal tar, produced naphtha. Naphtha is a broad term encompassing any volatile, flammable liquid hydrocarbon mixture. The word naphtha is an ancient Greek word that was used to refer to any sort of petroleum or pitch. The term napalm is derived from the first syllables of two of the fatty acids contained in coconut oil, naphthenate and palmitate, which were added to gasoline to produce an incendiary device. A similar product was also known to the Assyrians and Persians who used a type of liquid petroleum as a fire assault weapon. The Greek historian Thucydides (460–395 BCE) reported that flaming pitch (tar) and sulphur mixtures were employed during the Peloponnesian War, such as when fire via incendiary arrows, was used at the siege of Plataea in 429 BCE.11 Aristotle was credited with the creation of several naphtha fire weapons, and his student, Alexander the Great (356–323 BCE), utilised ‘burning sand’ against the fortifications in Tyre and Gaza in 332 BCE. Over 800 ‘flame carriers’ were fired into Rhodes, when it was besieged in 305 BCE. Whether Archimedes (287–213 BCE) invented a weapon that used mirrors and the rays of the sun to make enemy ships catch fire during the siege of Syracuse is a matter of conjecture, although the defence of their walls with a form of liquid fire was not. Likewise, the use of pigs, covered in pitch and then set alight to scare off attacking elephants was also a recognised form of defence.12 The Romans did not use naphtha for land-based military purposes, although Nero (37–68) did utilise it for his particularly evil ‘shirts of torture’.13 However, a refined product of tar, sulphur and pine resin was put to use against enemy warships as early as 360 BCE. Fire-boats were also part of some of the battle fleets, whereby blazing hulks would be released into opposing fleets. Fire was also a factor in the siege of Carthage, when Scipio Africanus (235–183 BCE) used fire as a way to finally end the vicious house-tohouse fighting inside Carthage once the walls had fallen, and also with the destruction of Jerusalem, when a small controlled fire got out of control. In 54 BCE, Britons were using hot clay balls in an attempt to fire Caesar’s camp and in 69 AD incendiary missiles of a sort were employed in the attack on Pacentia. Of course, the use of incendiary weapons was accompanied by a remarkable array of projectile throwers. Aside from what the individual archer could unleash was a collection of torsion catapults, onagers and ballistas. These large stone throwers, developed over hundreds of years, continued to improve in their ability. The counterweight-powered trebuchet evolved to being able to throw a rock of 300 pounds for distances of up to 300 yards. This not only allowed walls to be shattered and broken from a long range, it also meant that residences behind the walls could be subjected to crushing bombardment.14   Mayor, A (2003) Greek Fire, Poison Arrows and Scorpion Bombs (London, Duckworth) 211–40.   Thucydides in trans Warner, R (1972) History of the Peloponnesian War (London, Penguin) ii, 75. 12   Fuller, J (1945) Armaments and History (NYC, Scribner) 39, 44, 45; Goldsworthy, A (2003) The Fall of Carthage (London, Cassel) 263; Melegari, V (1981) Great Military Sieges (London, Ferndale) 38–39. 13   Mayor, A (2003) Greek Fire, Poison Arrows and Scorpion Bombs (London, Duckworth) 250. 14   Fuller, J (1945) Armaments and History (NYC, Scribner) 30; O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 96–97; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 167; Laing, J (2000) Warriors of the Dark Ages (London, Sutton) 71; Melegari, V (1981) Great Military Sieges (London, Ferndale) 48–49. 10 11

12  Targets

By the time the Roman Empire had become Christian, it was well recognised that the deliberate setting of fires in places near human habitation with the object of committing harm was a crime of extreme concern. Centuries later, the ‘most dreadful, devastating and malicious crime of incendiarism’ was deemed a ‘pernicious and inimical calamity [that] surpasses all other kinds of destruction’ by the Second Lateran Council in 1139. Therefore, the Council prohibited the use of fire for the purpose of ‘injuring the people of God’.15 However, this prohibition was only in cases of domestic crimes; that is, the burning of houses or towns of enemies was not a crime during times of war.16 This rule was fully consistent with the already established practice whereby the military forces of the various Christian empires were developing new weapons of terrifying proportions. By 688 the Byzantine Romans had developed a unique mix of hydrocarbons that were recorded as ‘Greek fire’. Greek fire consisted of sulphur, tartar, sarcocolla, pitch, boiled salt, petroleum oil and common oil. It was shot through a system of caldrons, siphons, tubes and pumps. This mixture was unique in that once it struck its target it was difficult to remove and/or extinguish. Their enemies, wrote the Byzantine chronicler Theophanes (758–818) ‘shivered in terror, recognising how strong the liquid fire was’.17 This was not surprising, given that this weapon was both impossible to extinguish and catastrophic to besieging fleets made of wooden boats, as the Muslim forces discovered in 717 and the Russians in 941 and 1043. Muslim forces appear to have utilised some form of incendiary weapons as early as 630 during one of the last campaigns of Muhammad (570–632). They were then used in 645 (Alexandria) and 683 (Medina and Mecca). Baghdad was destroyed in 1213 by a fire that was started by incendiary devices. By the time of the second crusade (1147– 49) Islamic forces had special military units in fire protective clothing who were specialists with incendiary weapons, as Richard the Lionheart (1157–99) learnt first-hand. After this point, the knowledge and utilisation of Greek fire spread throughout the known world and became so common that Henry V (1387–1422) would remark ‘war without fire is as worthless as sausages without mustard’.18 The only real differences between locations were with the mixtures involved. For example, the Mongols developed a type of naphtha with an additional mix of human fat.19 Around the year 960, gunpowder was invented in China. Within 100 years incendiary arrows were joined by exploding bombs which were being catapulted over enemy walls. The first type of explosives devised were soft-cased ‘thunderclap bombs’. These were followed by iron ‘thunder crash bombs’ or ‘heaven shaking thunder’ as they were known which killed people by the shattering of their metal cases and destroyed objects with the increased force of the explosion. Depictions from this period in 1207 empha15   Cf Prestwich, M (1995) Armies and Warfare in the Middle Ages (New Haven, Yale University Press) 291– 300. 16   Keen, M (1965) The Laws of War in the Late Middle Ages (London, Routledge) 65. 17   Noted in Partington, J (1960) A History of Greek Fire and Gunpowder (NYC, Heffner) 14; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 324. 18  Henry V, noted in Rogers, C (2002) ‘By Fire and Sword’ in Grimsley, M (ed) Civilians in the Path of War (NY, University of Nebraska Press) 38. 19   Fuller, J (1945) Armaments and History (NYC, Scribner) 70–71; Turnbull, S (2003) Genghis Khan and the Mongol Conquests (London, Osprey) 22, 33, 40; Mayor, A (2003) Greek Fire, Poison Arrows and Scorpion Bombs (London, Duckworth) 35, 236–37; Gillingham, J (1978) Richard the Lionheart (London, Weidenfeld) 173; Gravett, C (1990) Medieval Siege Warfare (London, Osprey) 29; France, J (1999) Western Warfare in the Age of the Crusades 1000–1300 (London, UCL Press) 117; Morillo, S (1994) Warfare Under the Anglo-Norman Kings (Suffolk, Boydell) 141.

Projectiles, Fire and Defended Areas 13

sise what would later be called the ‘morale effect’ or the ‘terror effect’ of such weapons. The Mongolians adopted the Chinese gunpowder technologies, and in turn, the Arabs acquired the knowledge around 1240. The English philosopher Roger Bacon (1214 –94) was recording recipes for the new powder by 1267, whilst the Muslims were mentioning ‘canons’ as the best method to deliver the impacts of the new technology around 1313. Although canons were not recorded in the European records of the same time, these weapons appear to have been used as early as the siege of Metz in 1323 and by Edward III (1312–77) in Scotland in 1327. Edward III also used early canons at his sieges along the coast of France, but they did not cause much damage because Edward’s gunpowder was weak and the projectiles were small.20 Nevertheless, their potential was obvious. The Italian poet Petrarch (1304–74) noted: These instruments which discharge balls of metal with most tremendous noise and flashes of fire were a few years ago very rare and were viewed with the greatest astonishment and admiration, but now they are become as common and familiar as any other kind of arms. So quick and ingenious are the minds of men, in learning the most pernicious arts.21

But by the end of fourteenth century, these weapons, which could fire stone balls weighing hundreds of pounds, had spread all over Europe. In the following century, the walls of Constantinople collapsed, and with them the Byzantine Empire in 1453, as a giant bombard with a barrel two feet and six inches in width repeatedly threw stone balls weighing more than half a ton from one mile away, six feet deep into the dirt or directly into the defences that had stood for nearly 1,000 years. Within two decades, these stone balls were replaced with first bronze and then iron balls – the latter being three times as dense as stone. Variations soon introduced what was known as fireballs, and then red-hot canon shot. These new technologies meant that not only could the walls of besieged cities be breached in rapid time, but the interior of cities could be destroyed massively in the process. When Charles VIII (1470–98) marched into Italy in 1494, he found that, with three dozen guns, he was able to breach fortress walls or gates in a matter of hours with shocking ease. The fortress at Monte San Giovanni, which stood in the way of Naples, and had once withstood a siege of seven years, was breached within eight hours. The days of sheltering behind old-fashioned castle walls had ended in a crash of shattered masonry.22 As Machiavelli (1469–1527) recognised: ‘no walls exist, however thick, that artillery cannot destroy in a few days’.23 From this point, the technology and its impact grew exponentially. The only remaining questions were how quick the attackers could shoot and how long the besieged could hold out. The defended areas on Malta which was besieged in 1565 were hit by some 70,000 canon shots which killed knights, women and children alike. When Nicosia was besieged by the Ottomans in 1570, the targets were the city’s walls, the city’s houses, and on Sundays, the churches. At the siege of Stralsund in 1628, some 20  Lindqvist, S (2001) A History of Bombing (London, Granta) 24; Turnbull, S (2003) Genghis Khan and the Mongol Conquests (London, Osprey) 18; Needham, J (1960) Science and Civilisation in China, Vol 5, Part 7 (Cambridge, Cambridge University Press) 111–17, 128, 132, 134; Kelly, J (2004) Gunpowder (London, Atlantic) 11, 22; Fuller, J (1945) Armaments and History (NYC, Scribner) 85. 21   Petrarch in Kelly, J (2004) Gunpowder (London, Atlantic) 45. 22   Kelly, J (2004) Gunpowder (London, Atlantic) 50; Fuller, J (1945) Armaments and History (NYC, Scribner) 31, 86; Runciman, S (1965) The Fall of Constantinople 1453 (Cambridge, Cambridge University Press) 96. 23   Machiavelli, noted in Crosby, A (2002) Throwing Fire: Projectile Technology Through History (Cambridge, Cambridge University Press) 124.

14  Targets

760 cannonballs, some of them being 50 kilogramme mortar shots, were discharged into the city on the first day. The Ottoman empire that besieged Vienna in 1683 made great use of incendiary bombs, whilst the Jacobite attack upon besieged Derry in 1689 was one where ‘the shrieks of women and children formed a terrific contrast with the thunder of the artillery and the crash of walls and houses brought down by artillery’. This was not surprising as during the day the gunners fired cannon balls at specific targets. At night they fired an overall total of some 590 bombs weighing up to 270 pounds each and packed with 15 pounds of gunpowder – anywhere – so long as they went over the wall.24 The French bombardments of Koblenz in 1688 and Liege in 1691 were extremely severe, while that of Brussels in 1695 was compared by the Duke of Berwick (1670–1734), one of the French commanders, to the burning of Troy by the Greeks. With the siege of Turin in 1706 it was recorded that some 8,000 projectiles fell on the city each day it was under siege. A few years later in 1728, a French naval force of nine vessels could throw 2,000 projectiles into Tripoli over a six-day period.25 Needless to say, such radical changes in technology caused many to question whether the laws governing such means of warfare were adequate. However, the renowned international law scholar Cornelius van Bynkershoek (1673–1743), writing in 1737, suggested that incendiary bombs were legitimate even if the enemy did not use them as ‘everything is legitimate against an enemy’.26 With such legal heavyweights in the background, Frederick the Great (1712–86), went on to use incendiary bombs to set fire to different sections of Prague in his unsuccessful siege of 1757. The British siege of Quebec in 1759 saw mortars sending their rounds high over the river and landing on, inter alia, houses, shops and even churches. At least 500 buildings were destroyed before they surrendered ‘the ruins’.27 Similarly, when George Washington (1731–99) besieged Boston in 1775 and began to bombard the town ‘the cries of poor women and children’ reached his ears.28 A little later the English used ‘red cannon balls’ in the siege of Gibraltar in 1779–83. This red-hot shot, which was the precursor to modern incendiary projectiles, destroyed the floating batteries of the Spanish fleet. It was at this siege that Lieutenant Henry Shrapnel (1761– 42) invented a spherical hollow shell filled with bullets and bursting charges that would go on to carry his name for hundreds of years to come.29 During the Napoleonic wars, bombardment was primarily accompanied by storm and sack. Thus, incidents like the English navy cruising off the French coast to bombard periodically unsuspecting French villages were relatively unusual, in terms of trying to destroy an area by projectile. The exception to this came with the advent of rockets. Following the developments of William Congreve (1772–1828), who, based 24   Gebler, C (2005) The Siege of Derry (London, Abacus) 184, 211, 218; Stoye, J (2000) The Siege of Vienna (Reading, Birlinn) 127. 25  Black, J (1994) European Warfare 1600–1815 (New Haven, Yale University Press) 58; Bradford, E (1962) The Great Siege (London, Reprint Society London) 179, 189; Capponi, N (2006) Victory of the West. The Battle of Lepanto (London, Macmillan) 141; Parker, G (1997) The Thirty Years’ War (London, Routledge) 177; Anderson, M (1998) War and Society in Europe of the Old Regime (London, Sutton) 139. 26  Bynkershoek, C (1737) Quaestionum Juris Publici Libri Duo (Oxford, Clarendon, 1930) 16. 27   Fowler, W (2005) Empires at War (NYC, Walker) 192–93, 215. 28   McCullough, D (2005) 1776: America and Britain at War (London, Penguin) 92. 29   Fuller, J (1945) Armaments and History (NYC, Scribner) 86, 101; Black, J (1994) European Warfare 1600– 1815 (New Haven, Yale University Press) 54; Melegari, V (1981) Great Military Sieges (London, Ferndale) 174–79.

Projectiles, Fire and Defended Areas 15

on the rockets he had seen fired in India, produced a new weapon with which he managed to set the entire city of Boulogne afire in 1806. Obviously proud of himself, he wrote: ‘The rocket is, in truth, an arm by which the whole system of military tactics is to change.’30 Soon afterwards, the British began to explore the possibilities of linking rocket attacks with bombardments. This was most obvious with the 1807 siege of Copenhagen, in which the British offered the Danes the chance to surrender. The Danes initially refused and 2,000 people died in the resultant bombardment, including many woman and children. In large part, this indiscriminate death toll may have been due to the first large-scale utilisation of war rockets. After this point, rockets were used as supplementary weapons in sieges involving Algiers in 1816, Burma in 1825, Ashante in 1826, Sierra Leone in 1831, Afghanistan in 1837–42, China in 1839–42 and 1856–60, Shimonoseki in 1864, Central America in 1867, Abyssinia in 1868, South Africa in 1879, Alexandria in 1882 and, inter alia, other parts of Central and West Africa between 1892 and 1894.31 At all points during the nineteenth century, the rocket was a supplementary weapon and secondary to traditional bombardment with canons. In this regard, in 1848, parts of Vienna, Milan and Venice were bombarded during the various uprisings. In the first and second instances, the cathedrals, churches and public buildings were spared, and the bombardments were only allowed to fall on private property. In the case of Venice, hospitals and other sections of civilian infrastructure were destroyed.32 A few years later in 1854 the American navy bombarded and destroyed the undefended city of San Juan del Norte in Nicaragua. It was claimed that the American ambassador had been insulted and abused. The population was warned in advance. After several hours of fire, the American captain sent in a detachment of marines, who completed its destruction by setting fire to the city. The British protested the bombardment of an undefended city as something ‘without precedent among civilized nations’.33 Two years later, the British navy burned down Canton in 10 days of firing, with no return fire from the Chinese. The British suggested they were only aiming at the wall, and they did not intend the city to catch fire. A similar process of bombing the walls of Kagoshima, Japan (following the murder of an Englishman, and the failure to obtain damages), also set fire to the city. During the American Civil War, the sieges of Fort Jackson and Atlanta saw artillery shells rain down on civilians and soldiers alike. At the siege of Vicksburg in 1863, it was estimated that 70,000 projectiles, some of which included incendiary materials, fell on the city in one 24-hour period.34 30   Noted in O’Connell, R (1989) Of Arms and Men: A History of War, Weapons and Aggression (Oxford, Oxford University Press) 187. 31   Rothenberg, G (1980) The Age of Warfare in the Age of Napoleon (Bloomington, Indiana University Press) 81, 218; Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 28–29; Lindqvist, S (2001) A History of Bombing (London, Granta) 52; Clayton, T (2004) Trafalgar: The Men, the Battle, the Storm (London, Hodder) 58–59; Pakenham, T (2003) The Scramble for Africa (London, Abacus) 193. 32   Keates, J (2006) The Siege of Vienna (London, Pimlico) 377; Rapport, M (2009) 1848: Year of Revolution (London, Abacus) 89, 286–87. 33  Lindqvist, S (2001) A History of Bombing (London, Granta) 39. 34   Melegari, V (1981) Great Military Sieges (London, Ferndale) 214, 216; Lindqvist, S (2001) A History of Bombing (London, Granta) 39; Boot, M (2006) War Made New. Technology, Warfare and the Course of History (NYC, Gotham) 180; Stout, H (2006) Upon the Altar of the Nation: A Moral History of the Civil War (NYC, Viking) 243, 368–72.

16  Targets

The Spanish bombardment with 2,600 shells on the undefended city of Valparaiso in 1866 caused a lot of international interest, as the attack happened to hit many British interests in the town, as well as some churches and the main hospital. A similar fate hit Rio de Janeiro and Niteroi during the Brazilian revolution of 1893, when the loyal navy decided to shell the urban rebels into submission.35 With the Franco-Prussian War, first Strasbourg and then Paris were bombarded. The attack on Paris began by trying not to target civilian areas. However, this quickly stopped in an attempt to break the morale of the civilian population. Some 300 to 400 shells fell on the city each day, of which 97 civilians would be killed, and 278 wounded. When hospitals were hit (and the Salpetriere hospital in particular, which had a large Red Cross painted on its roof, was repeatedly hit) public opinion in Europe swung towards the French.36 In 1882, Alexandria was bombarded by the British as part of putting down a nationalist uprising. Although the batteries on the waterfront were the target, stray shells burst all over the city hitting consulates, schools, convents, the synagogue and numerous private schools. Kagoshima, Fuchow and Bangkok were other rebellious cities outside of Europe subjected to naval bombardments, as was Tripoli. In the last instance, the Italian authorities were keen to reassure Italy’s friends that the bombardment must ‘be considered a most humane one’ as it sought to avoid mosques and hospitals and injured only seven civilians.37 The final development of note in this period was that of the air balloon. This invention gave belligerents the ability to release or fire their explosives in the air above the opposition. The Prussians were the first to foresee in 1783 that balloons ‘could rain down destruction on whole towns with catastrophic results for the inhabitants’.38 The idea also gripped the imagination of those in the French Revolution who proposed the destruction of the rebellious city of Toulon by having an enormous balloon carry a 30 ton explosive charge into the city. However, neither the Prussian nor the French plans came to fruition although in 1812, as Napoleon advanced on Moscow, some enterprising Russians tried to slow his advance with the aid of a balloon laden with explosives. Napoleon’s reaction was never recorded. Three and a half decades later during the Mexican War of 1846 to 1848, it was proposed to use balloons to drop explosives on the Mexican fort of San Juan de Ulloa. Balloons were also used for the provision of postal services during the siege of Paris in the 1870 Franco-Prussian war. Despite these other utilisations of balloons, it was in 1848, that the use of aerial bombardment really began, when the Austrian forces utilised ‘scores’ of small balloons which contained explosives that were operated by time fuses. A number of systematic attempts were made to float these over Venice and then detonate them, although the vast majority appear to have floated right over the city, while the citizens stood transfixed watching them float overhead onto the army that launched them, which was also situated on the opposite side of the area.39 35   Scheina, R (2003) Latin America’s Wars: The Age of the Caudillo, 1791–1899 (Washington, Brassey) 338– 39, 387, 407–408. 36  Howard, M (2002) The Franco-Prussian War (London, Routledge) 273–75, 354, 361–63; Horne, A (2004) The Terrible Year: The Paris Commune, 1871 (London, Phoenix) 52–54. 37   Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 125, 155; Pakenham, T (2003) The Scramble for Africa (London, Abacus) 134–35; Green, D (2008) Armies of God (London, Arrow) 134–36. 38   Rothenberg, G (1980) The Age of Warfare in the Age of Napoleon (Bloomington, Indiana University Press) 123. 39   Keates, J (2006) The Siege of Vienna (London, Pimlico) 385–86; Howard, M (2002) The Franco-Prussian War (London, Routledge) 326–27; Tucker, S (1996) The European Powers in the First World War (New York, Garland) 13.

International Law on Projectiles Prior to the First World War 17

2 .  International Law on Projectiles Prior to the First World War

The 1863 Lieber Instructions for the Government of Armies of the United States in the Field specified that ‘Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants and especially the women and children, may be removed before the bombardment commences’.40 Eleven years later, the 1874 Project of an International Declaration concerning the Laws and Customs of War clearly added the very important rule that ‘Fortified places are alone liable to be besieged. Open towns, agglomerations of dwellings, or villages which are not defended can neither be attacked nor bombarded.’41 In addition, even if a town or fortress was defended, before commencing a bombardment, except in assault, the officer in command of the attacking force was obliged to ‘do all in his power to warn the authorities’.42 Six years later, The Oxford Manual, when dealing with the topic of bombardment and ‘useless severity’ suggested that when dealing with fortresses and other places in which the enemy is entrenched: ‘Considerations of humanity require that this means of coercion be surrounded with certain modifying influences.’43 As such: ‘Before undertaking a bombardment, make every due effort to give notice thereof to the local authorities.’44 Although the 1874 Declaration did not enter into force, and the 1880 The Oxford Manual was only of soft influence, Article 25 of the Annex to the 1899 Convention (II) with Respect to the Laws and Customs of War on Land, reiterated the 1874 principle, namely: ‘The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.’45 A very similar rule was reiterated in the Convention Respecting the Laws and Customs of War in 1907, with the difference that the words ‘by whatever means’ were added. As such, the rule now read ‘the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited’. The words ‘by whatever means’ were added to make the prohibition apply to bombardment from the air. The 1907 Convention IX Concerning Bombardment by Naval Forces in Times of War was also driven ‘by the desire to serve the interests of humanity and to diminish the severity and disasters of war’.46 Accordingly, ‘the bombardment by naval forces of undefended ports, towns, villages, dwellings, or buildings is forbidden’. The exception to this was if the place held military works, military or naval establishments, depots of arms or war material, workshops or plant which could be utilised for the needs of the hostile fleet or army. The besieging commander was still obliged to issue a summons or ‘warn the authorities’ before commencing the bombardment, and then wait ‘a reasonable time’. If, due to military necessity, ‘no delay can be allowed’ they were still obliged ‘to take all due measures in order that the town may suffer as little harm as possible’.47 40   Art 19. Note ‘but it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity’. 41   Art 15. 42   Art 16. 43   Section 32(c). 44   Section 33. 45   Art 26 added, once more, ‘the officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities’. 46  Hague IX 1907, Preamble. 47   Art 6.

18  Targets

Even where bombardments were required, it was expected that certain areas, such as civilian hospitals, would be spared the onslaught. For example, Lieber’s Code suggested that hospitals must be ‘secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded’.48 A similar rule was contained in the 1899 and 1907 Hague documents,49 which stated: In sieges and bombardments all necessary steps should be taken to spare as far as possible [inter alia] . . . hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes.50

A noticeable addition from this point involved restrictions on methods of attack from hot air balloons. In 1899, the Parties to the Hague Convention Prohibited the Launching of Projectiles and Explosives from Balloons for a period of five years. Although the Declaration was clearly linked to balloons, the Parties stated that the prohibition was also for ‘other new methods of similar nature’. Although this Declaration was confirmed by the 1907 Conference (Declaration XIV) it was only timed to last until the Third Peace Conference, which never eventuated as the First World War intervened. This was not viewed as a bad thing by all military authorities, as some, like the English Commander, Lord Wolseley (1833–1913) had argued against a prohibition of dropping bombs from balloons. The basis of his argument was that restrictions on scientific inventions gave nations like Britain, which had a relatively small army, clear disadvantages as they would lose the ability to wage short wars. However, before belligerents could fully explore the possibilities of dropping bombs by balloons, the first bombs (four grenades) were dropped by an aeroplane on 1 November 1911 on an oasis outside Tripoli which contained rebels. The potential of such acts quickly became apparent and when it was proposed at the Aviation Conference in Paris the following year that such air bombardments should be banned in the future, the idea was completely rejected. The following year in 1913, Bulgarian forces besieging Adrianople dropped bombs from a plane (along with a large-scale indiscriminate bombardment from artillery) on a city full of soldiers and civilians.51 The indiscriminate attacking of cities in the First World War is notable at a few levels. This was despite the attempts of 1899 and 1907 to place restrictions in this area. In this regard, the War Book of German General Staff explained that, whilst notifications in advance to besieged areas were possible, they were by no means mandatory. Moreover: A prohibition by international law of the bombardment of open towns or villages which are not occupied by the enemy, or defended, was indeed put into the words of the Hague Regulations, but appears superfluous, since modern military history knows of hardly any such case.52

Whilst the Germans engaged in the bombing of at least five British coastal towns from some of their ocean vessels, the real developments in this area concerned the longrange German guns that appeared in March 1918. Germany’s ultimate bombard was  Lieber, Art 35.   Also Art 27, 1907, Land and Art 5, 1907, Maritime. 50  Hague 1899, Art 27. 51   Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 128; Lindqvist, S (2001) A History of Bombing (London, Granta) 4, 58; Hall, R (2000) The Balkan Wars 1912–1913 (London, Routledge) 86–89. 52   Grossgeneralstab (1915) in trans Morgan, T (2005) War Book of the German General Staff (Pennsylvania, Stackpole Books) 38. 48 49

International Law on Projectiles Prior to the First World War 19

a 42 centimetre howitizer. Named after the matriarch of the Krupp family, ‘Big Bertha’, this weapon fired an 820 kilogramme shell in an arc nearly five kilometres high and 14 kilometres in length. On 12 August 1918, the first of these shells fell on Belgian territory. The sound of the explosion was so loud that the Belgians thought an entire fort’s magazine had been destroyed. This was soon joined by a small number of similar weapons, which began to bombard Paris. Hitting Paris from 108 kilometres away (but with a smaller shell), the gunners were so far from their victims that the screams could only be imagined. Over the following six-month period a total of 303 shells were fired into the French capital. This weapon could only hit large areas and was well beyond any serious attempts at targeting. As such, the purpose of the weapon was the creation of terror. It achieved this via the killing of 256 people, with another 620 injured by this method. One shot alone, on Good Friday 1918, hit the arch of crowded church of St Gervais and killed over 88 people.53 The second level at which Germany was involved in the indiscriminate bombing of civilians was via their air force. In some ways, this was to be expected as when the First World War broke out all sides had air forces and bombers, and some theorists like Giulio Douhet (1869–1930), had been busy drafting plans for raids involving thousands of planes to bomb and obliterate enemy cities. He had warned after the First World War had ended, that: The character of future wars is going to be entirely different from the character of past wars . . . in order to conquer by air, it is necessary to destroy, to deprive the enemy of all means of flying, by striking at him in the air, at his bases of operation, or at his production centers – in short, wherever those means are to be found.54

However, Douhet’s thinking was for the future, as the aircraft of the First World War were weak in terms of the munitions they could carry and the distances they could penetrate. Even when the aircraft gathered greater range and capacity, some of the belligerents, such as the French, were loath to attack the Germans in occupied territory. Nevertheless, the Allies flew 2,800 bombing raids into Germany itself attempting to bomb armament factories in the industrial areas in the Lorraine, the Moselle and the Saar. At least 728 civilians were killed in these raids. Even in lesser actions, such as when two British planes bombed ‘places of military importance’ in Turkish Smyrna, at least 30 bombs fell on the residential district, hitting a hospital, a girls school and the local YMCA, killing dozens of civilians.55 Unlike the Allies, the Germans attempted to carry out the mass bombing of civilian populations. The general view, as expressed by Helmuth von Motlke (1848–1916), was that: ‘All of the resources of the enemy, country, finances, railways, means of subsistence, even the prestige of the enemy’s government ought to be attacked.’56 53   Tucker, S (1996) The European Powers in the First World War (New York, Garland) 540; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 271; Crosby, A (2002) Throwing Fire: Projectile Technology Through History (Cambridge, Cambridge University Press) 140–44; Best, G (1980) Humanity in Warfare (London, Weidenfeld) 201–202; Ireland, B (2002) War at Sea: 1914–45 (London, Cassel) 50, 52, 56. 54   Douhet in Chaliand, G (1994) (ed) The Art of War in World History (California, California University Press) 891, 895. 55   Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 41, 93; Milton, G (2008) Paradise Lost: Smyrna 1922 (London, Sceptre) 90–95. 56   Moltke in Grossgeneralstab (1915) in trans Morgan, T (2005) War Book of the German General Staff (Pennsylvania, Stackpole Books) xvii.

20  Targets

The upshot of this approach began during the battle of Marne in late 1914, when a lone German single-engine Taube monoplane dropped five small bombs on Paris, along with a note from the pilot demanding the immediate surrender of both the city and the nation. Before the front stabilised, another 50 bombs would be dropped by Taubes on Paris. The Austrian and German air forces also carried out 343 aerial bombing raids over Italy, causing the death of 984 people, in cities as far away as Naples.57 The targeting of Britain began in early 1915 when Zeppelins dropped bombs on the East Coast of England. This first raid killed or injured 20 people. A further 52 raids by Zeppelins dropped almost 6,000 bombs and caused an estimated 1,900 casualties. As the war progressed, the Zeppelin was phased out and replaced by the Gotha Bomber. This aeroplane with its enormous 24-metre wing span, terrified civilian populations as it flew above them dropping bombs indiscriminately. Gotha Bombers began to bomb the United Kingdom in May 1917. By June they were bombing London. The first daylight raid by 14 aircraft killed or injured 588 people. By the end of war, 52 such bombing raids by Gothas and 53 by Zeppelins had claimed some 1,400 killed and 3,400 injured, with a cost of some 280 tons of bombs. The two German lieutenants captured after their Gotha came down on the night of 5 to 6 December 1917 spoke for most night bombers when they told their interrogators that they were able to pick out their military targets such as the Admiralty building, War Office, London docks and so on. But they added that if the bombs went astray it was of no consequence as one of the objects in raiding England was to demoralise the civilian population.58 3 .  Between the Wars

After the First World War ended, the first question the victors faced was whether they were going to try the pilots and German authorities for the indiscriminate bombing of their cities. The British Air Ministry specifically rejected this idea, suggesting that ‘that sort of thing would place a noose round the necks of our own airmen in future wars’.59 Accordingly, as this topic was not dealt with as a war crime, it fell to the League of Nations and associated organisations to find ways to mitigate this practice in the future. In this regard, in 1921, the International Committee of the Red Cross (ICRC) called for limits on the use of bombardments to spare civilian populations and the following year a commission of international jurists met in The Hague to attempt to formulate new military laws for air warfare.60 The result of their work was the 1923 Hague Rules of Air Warfare. The Rules suggested that: ‘Aerial bombardment for the purpose of terrorising the civilian population, of destroying or damaging private property not of a military character, or of injuring non-combatants is prohibited.’61 57   Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 56; Tucker, S (1996) The European Powers in the First World War (New York, Garland) 14. 58   Faulkner, N ‘Death in the Skies’ BBC History (Sept 2006) 48–50; Tucker, S (1996) The European Powers in the First World War (New York, Garland) 15, 19; Neillands, R (2002) The Bomber War (London, Murray) 13; Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 126; Best, G (1980) Humanity in Warfare (London, Weidenfeld) 269. 59  Lindqvist, S (2001) A History of Bombing (London, Granta) 9. 60   Resolutions from the 1921 ICRC Conference in ICRC (1995) The Humanitarian Endeavour (Geneva, ICRC) 155. 61   Art XXII.

Between the Wars 21

It was further agreed that ‘aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent’.62 After defining what could be considered military targets, it was added that ‘the bombardment of cities, towns, villages, dwellings, or buildings not in the immediate neighborhood of the operations of land forces is prohibited’.63 In cases where the military targets ‘are so situated, that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment’.64 The only exception to this was: [I]n the immediate neighbourhood of the operations of land forces, the bombardment of cities, towns, villages, dwellings, or buildings is legitimate provided that there exists a reasonable presumption that the military concentration is sufficiently important to justify such bombardment, having regard to the danger thus caused to the civilian population.

The Rules added that hospitals and other places where the sick and wounded were collected must be spared ‘as far as possible’.65 The British and the French rejected the 1923 Hague Rules. This was unlike the Americans and the Japanese, who continued to promote the regime throughout the 1920s.66 Following their efforts, Germany took up the topic in 1932 through the League of Nations when they, who had lost their air force through the Treaty of Versailles, moved for a total prohibition of bombing, without exception. The following year Adolf Hitler (1889–1945) argued that all States should ‘acknowledge certain obligations in regard to the humane conduct of war and the non-employment of certain weapons against the civil population’.67 Italy and Japan supported this approach. As an alternative measure, Germany also supported an earlier American proposal to only allow bombing in combat areas. However, Switzerland, Holland and Belgium objected that their immunity under these circumstances would be nothing but a fiction, as they were so geographically small. At the same time, the British continued to argue that the rules should not apply to colonial contexts or, as Lloyd George (1863–1945) suggested, ‘we insisted on reserving the right to bomb niggers!’68 Before this matter could progress anywhere, Hitler walked out of the conference on disarmament and withdrew from the League of Nations. As such, these attempts to govern the laws of air warfare and limit the bombing of civilians collapsed.69 Despite leaving the League, Hitler continued to argue for a ‘complete international prohibition of bomb-dropping’ especially of ‘defenseless civilian populations’.70 He went on in 1936 to argue for an international   Art XXIV(1).  Bombardment ‘is legitimate only when directed exclusively at the following objectives: military forces; military works; military establishments or depots; factories constituting important and well-known centres engaged in the manufacture of arms, ammunition, or distinctively military supplies; lines of communication or transportation used for military purposes’. See Art XXVIV(2). 64   Art XXVIV(3). 65  Hague Rules of Air Warfare, Art XXV. 66  Lindqvist, S (2001) A History of Bombing (London, Granta) 115, 133. 67  See Hitler’s Memorandum Communicated to the French Ambassador in Keith, K (1938) (ed) International Affairs, 1918–1937, Vol I (Oxford, Oxford University Press) 285. 68   Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 200. 69  Lindqvist, S (2001) A History of Bombing (London, Granta) 140; Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 146–48. 70  Hitler’s Speech to the Reichstag, 1935 in Keith, K (1938) (ed) International Affairs, Vol II (Oxford, Oxford University Press) 33. 62 63

22  Targets

convention which prohibited the dropping of incendiary bombs, and the ‘prohibition of dropping bombs of any kind whatsoever on open localities outside the range of the medium artillery of the fighting fronts’.71 Moreover, as the Luftwaffe was being rebuilt and illicitly sent to train in the Spanish Civil War, their training manual stated clearly that ‘attacks on cities for the purpose of terrorising the civilian population are absolutely forbidden’.72 Despite the development of such soft codes of conduct, a number of theorists such as Basil Liddel Hart (1895–1970) and Hugh Trenchard (1873–1956) were confident that the future of warfare lay in the large-scale bombing of areas, in which civilians may become collateral damage. As Trenchard explained: As regards the question of legality, no authority would contend that it is unlawful to bomb military objectives, wherever situated. There is no written international law as yet upon this subject . . . Among military objectives must be included factories in which war material is made, the depots in which it is stored, the railway termini and docks at which it is loaded or troops entrain or embark . . . Such objectives may be situated in centres of population in which their destruction from the air will result in casualties also to the neighbouring civilian population . . . the fact that air attack may have that result is no reason for regarding the bombing as illegitimate provided all reasonable care is taken to confine the scope of the bombing to the military target . . . What is illegitimate, as being contrary to the dictates of humanity, is the indiscriminate bombing of a city for the sole purpose of terrorising the civilian population. [However] It is an entirely different matter to terrorise munition workers (men and women) into absenting themselves from work or stevedores into abandoning the loading of a ship with munitions through fear of air attack.73

Aside from such questions of warfare between conventional belligerents, it was commonly believed that such codes, as noted above, did not apply to domestic or colonial matters. For example, in 1920s and early 1930s, British airpower was used to crush rebellions in Somalia, Afghanistan, India, Sudan and Iraq. Spain did the same in Morocco as did the French in Syria.74 These ‘colonial’ bombing operations were relatively small compared to the inter-state warfare that broke out when Italy invaded Ethiopia (and unleashed some 7,500 tons of high explosives and poison gas) and the Japanese in China. Within this latter theatre of war, by the middle of 1945 Japanese aerial bombing, typically laced with incendiaries, may have killed up to 200,000 civilians. This is not a surprising figure, when it is realised that some cities, such as Chongqing, were bombed over 200 times during the course of the war. These actions were despite the pleading of the ICRC for both belligerents to exercise restraint in this area. In particular, in 1938, it called upon the Governments of China and Japan as follows: Among the evils which may strike the civilian population in time of war, the most terrible are surely those caused by aerial bombardment, the fatal ravages of which make so many innocent victims, especially among women and children . . . [we] urge the Chinese and Japanese 71   The Peace Plan of the German Government (1936) in Keith, K (ed) International Affairs, Vol II (Oxford, Oxford University Press) 143. 72   Neillands, R (2002) The Bomber War (London, Murray) 157. 73   Reprinted in Chaliand, G (1994) (ed) The Art of War in World History (California, California University Press) 908–909; Hart, B (1925) Paris, or the Future of War (London, Murray) 50, 56. Note, Hart later changed his mind, having seen the effects of the Blitz. 74  Baker, N (2008) Human Smoke (London, Simon & Schuster) 18, 20, 85; Lindqvist, S (2001) A History of Bombing (London, Granta) 118, 123, 146, 151; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 178.

Between the Wars 23 authorities to do all in their power to abstain from any air raids on places not strictly military targets. The International Committee hopes that this appeal will be received the more favorably since it expresses the substance of a clause included included in the Regulations annexed to the Fourth Hague Convention of 1907, to which China and Japan are parties. In effect, under the terms of Article 25 of the said Regulations, it is prohibited to attack or bombard, by whatever means, towns, villages, dwellings or buildings which are undefended.75

Despite the developments in Africa and Asia,76 it was not until the Spanish Civil War that the fears and practice of indiscriminate bombing of civilian populations really came to the attention of Western audiences. This process began in late 1936 when, despite pleas by the ICRC not to attack civilian centres, Madrid came under intense and relatively indiscriminate artillery and air attack. Vizcaya was next attacked via indiscriminate methods, during which some 250 non-combatants died. Although other cities, such as Barcelona, were also bombed during the civil war, the most famous incident involved Guernica. Guernica, which is a culturally symbolic city to the Basque people, was attacked on 26 April 1937 with 5,771 bombs which destroyed 70 per cent of the city. The survivors of the initial attack were then machine-gunned from the air. Between 300 and 1,654 people were killed and a further 800 or so were wounded. The arms-producing factories, the barracks and the town’s main bridge – the targets which justified the attack – were all left unscathed.77 Against such a background, once more the ICRC appealed for the creation of a possible new convention that would create safety zones from aerial bombing.78 This call overlapped with the 1938 Draft Convention for the Protection of Civilian Populations Against New Engines of War. This Convention attempted to restrain aerial bombards by two means. First, the 1938 Draft Convention intended to ban the use of incendiary weapons as the League of Nations had done with chemical and bacterial weapons.79 Second, it was proposed that ‘undefended towns’80 would not be bombarded by any means, and even with defended towns, bombardment ‘when objects of military character cannot be clearly recognized’ was prohibited, as was aerial bombardment for the 75  Durand, A (1984) A History of the International Committee of the Red Cross: From Sarajevo to Hiroshima. (Dunant Institute, Geneva) 382–83; Lary, D (2010) The Chinese People at War (Cambridge, Cambridge University Press) 22–24, 86–89; Lindqvist, S (2001) A History of Bombing (London, Granta) 147, 151; Baker, N (2008) Human Smoke (London, Simon & Schuster) 30–31, 72, 165. 76  Lary, D (2010) The Chinese People at War (Cambridge, Cambridge University Press) 22–24, 86–89; Lindqvist, S (2001) A History of Bombing (London, Granta) 147, 151; Baker, N (2008) Human Smoke (London, Simon & Schuster) 30–31, 72, 165. 77   Corum, J ‘The Persistent Myth of Guernica’ Military History Quarterly (Summer 2010) 16–23; Keeley, G ‘Memory of Guernica Lives on After 70 Years’ New Zealand Herald (27 Apr 2007) B3; Beevor, A (1982) The Spanish Civil War (Cassel, London) 200–202, 239, 243, 332; Knightley, P (1975) The First Casualty (London, Pan) 203–208. 78   Resolutions from the 1938 ICRC Conference in ICRC (1995) The Humanitarian Endeavour (Geneva, ICRC) 167. 79   Art 6. However, Art 8 spelt out that the prohibition was not meant to apply to the use of incendiary weapons specifically intended to cause fires except when used for defence against aircraft; projectiles specially constructed to give light or to be luminous; pyrotechnics not normally likely to cause fires; projectiles of all kinds which, though capable of producing incendiary effects accidentally, are not normally likely to produce such effects; incendiary projectiles designed specifically for defence against aircraft when used exclusively for that purpose; or appliances, such as flame-projectors, used to attack individual combatants by fire. 80   A town ‘shall be considered undefended provided that not only (a) no combatant troops, but also (b) no military, naval or air establishment, or barracks, arsenal, munition stores or factories, aerodromes or aeroplane workshops or ships of war, naval dockyards, forts, or fortifications for defensive or offensive purposes, or entrenchments exist within its boundaries or within a radius of “x” kilometres from such boundaries’. See Art 2.

24  Targets

purpose of causing terror in civilian populations.81 When military objectives were ‘so situated that they cannot be bombarded without the indiscriminate bombardment of the civilian population’, the bombardment was to be prohibited.82 The functional mechanism to achieve the goals of not bombing civilians from the air was the creation of ‘safety zones’ which were to be notified non-defended areas, occupied by non-­ combatants only,83 which enjoyed ‘immunity from attack or bombardment by whatsoever means . . . which shall not form the legitimate object of any act of war’.84 The Draft 1938 Convention, like its 1923 predecessor, was destined to never come into force. It fell to American President, Franklin D Roosevelt (1882–1945), in a last attempt to achieve restraint, on the first day of the Second World War, to appeal to the warring powers to show restraint with his Appeal to the Belligerents to Refrain from the Bombing of Open Towns. Although lengthy, the text of his appeal is worth repeating in full: The ruthless bombing from the air of civilians in unfortified centers of population during the course of hostilities which have ranged in various quarters of the earth in the past few years, which have resulted in the maiming and death of thousands of defenceless women and children, has profoundly shocked the conscience of humanity. If resort is had to this sort of inhuman barbarism during the period of tragic conflagration with which the world is now confronted, hundreds of thousands of innocent human beings, who have no responsibility for, and who are not even remotely participating in, the hostilities that have broken out, now will lose their lives. I am therefore addressing this urgent appeal to every government which may be engaged in hostilities to publically affirm its determination that its armed forces shall in no event and under no circumstances undertake bombardment from the air of civilian populations or unfortified cities, upon the understanding that the same rules of warfare will be scrupulously observed by all their opponents.85

The Germans, French and British all promised to follow this plea. Notably, the British Prime Minister Neville Chamberlain (1869–1940) could proclaim in 1939 that: ‘His Majesty’s government will never resort to the deliberate attack on women and children and other civilians for the purpose of mere terrorism.’86 This followed Chamberlain’s earlier instruction to Bomber Command in June 1938 that, ‘it is against international law to bomb civilians such as to make deliberate attacks on civilian populations . . . targets must be legitimate military objectives’.87 4 .  The Second World War

In some ways, the pleas of Roosevelt and the proposed 1938 Convention did have a moderating influence in the Second World War as the bombing of cities by air was not   Arts 3 and 4.   Art 5(2). 83   See Art 12, dealing with those over 60, under 15, and the sick and injured between 15 and 60. 84   Art 10. 85   Roosevelt in Birley, R (ed) (1944) Speeches and Documents in American History, Vol IV (Oxford, Oxford University Press) 288. 86   Chamberlain, noted in Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 149. 87   Chamberlain, noted in Burleigh, M (2010) Moral Combat. A History of World War II (London, Harper) 164. 81 82

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completely unrestrained. It remained an option during the Second World War to declare a city ‘open’ and thus to abandon all defensive efforts in or surrounding the city. Attacking forces of the opposing military were not expected to attack such places, but simply to march in and occupy them. This practice seems to have worked on a number of occasions, although this was not always the case. Thus, although Belgrade was declared an open city it was bombed for three days in April 1941. Despite this failure, many other famous cities managed to avoid destruction by declaring themselves open. For example, on 10 June 1940 Paris was declared an open city. One week later, the French added all communities of more than 20,000 souls as ‘open towns’ which were not to be defended. The Germans were amazed that the French kept to their word about there being no military defence of their capital and Hitler, who recognised it as an open city, was originally pleased not to have destroyed Paris (although he appears to have been quite willing to do so).88 Brussels was also declared an open city, as was Manila in 1942 by the retreating Americans. Unfortunately, three years later, during its recapture by American forces, bombs and shells would flatten much of Manila which the Japanese did not recognise as ‘open’.89 Other successes in this area can be seen with famous cities in Greece and Rome where, despite threats by Benito Mussolini (1883–1945) that he would ‘flatten Athens’ once the Nazis took charge of the campaign, Athens was clearly avoided, because as Josef Goebbels believed ‘the Fuhrer is a man totally attuned to Antiquity – Athens and Rome are his Meccas’.90 Winston Churchill (1874–1965), although agreeing not to target high-profile targets such as Rome in the first part of the war, was clear that if the methods of warfare escalated, he was prepared to give them ‘a good dose of where it will hurt them most’.91 Churchill went on publicly to warn the Axis on 18 April 1941 that if the Axis powers were to bomb Athens or Cairo ‘we should begin the systematic bombing of Rome’.92 However, when the outskirts of Cairo were bombed, Churchill showed restraint and did not bomb Rome. Moreover, this did not become necessary as when the German forces began retreating in 1943 they declared Rome to be an open city. In 1944, the Germans added Athens, Cheti and Florence to the list. Hitler had agreed that Florence was ‘too beautiful to destroy’ – although Florence was still damaged as the war in Italy moved around it and Hitler gave direct permission for a number of historic bridges to be destroyed.93 Despite the success of the few open cities noted above, the overwhelming majority of cities were defended and many came to feel the full brunt of the conflict that swirled around them. Thus, Heinrich Himmler (1900–45) could declare as the Allied forces were about to invade Germany: ‘No German city will be declared an open city. Every town and village will be defended at all costs.’94 88   Trevor-Roper, H (1964) Hitler’s War Directives 1939–45 (London, Pan) 72, Dir 15; Nicholas, L (1994) The Rape of Europa (Kent, Papermac) 115; Kershaw, I (2008) Hitler (London, Allen) 562; Vinen, R (2006) The Unfree French: Life Under the Occupation (London, Penguin) 30; Baker, N (2008) Human Smoke (London, Simon & Schuster) 202. 89  Baker, N (2008) Human Smoke (London, Simon & Schuster) 464. 90  Osborn, J ‘Greek Tragedy’ Quarterly Journal of Military History (Summer 2009) 76, 86. 91  Baker, N (2008) Human Smoke (London, Simon & Schuster) 290. 92   Baker, N (2008) Human Smoke (London, Simon & Schuster) at 310. Note, Churchill did say he would try to avoid hitting the Vatican if such events came to pass. 93  Holland, J (2008) Italy’s Sorrow: A Year of War, 1944–1945 (London, St Martin’s) 94; Nicholas, L (1995) The Rape of Europa (Kent, Papermac) 243; Baker, N (2008) Human Smoke (London, Simon & Schuster) 403. 94  Himmler, noted in Stafford, D (2007) Endgame 1945 (London, Abacus) 200.

26  Targets

The costs of such defence did not only fall on the defenders. With the air war during the entire conflict, nearly 80,000 Allied airmen aboard the bombers that would attack the defended places, would die in the process.95 Nevertheless, over a six-year period, the Royal Air Force and their American counterparts, the United States Army Air Forces (USAAF), would together drop 2,700,000 tons of munitions in Europe. Out of this total, 30.5 per cent fell on military targets, 13.5 per cent on industrial, 24 per cent on urban and 32 per cent on synthetic oil plants, railways and canals.96 Despite the intentions behind these targets, the munitions killed somewhere between 100,000 and 593,000 people, of which the majority were civilians. Perhaps a million would be wounded, whilst a further 7.5 million would lose their homes.97 In some instances, such as with Poland, this problem came quite quickly. Poland was, from the outset, unsatisfied with the efforts in the 1930s to restrict aerial bombardments to within a certain distance from the front line, because when war broke out the combat zone quickly came to encompass Polish – and not German – cities. Thus, whilst the Poles did not feel easy about striking German cities, it allowed Germany to bomb freely around the combat zones which encompassed large civilian areas in Poland. The justification for the bombing was also enhanced by the fact that Warsaw was declared a fortress by its defenders and not an open city, and was full of what the Nazi’s considered dual use military targets such as railways, highways and telephone lines. These targets were met with 500 tons of bombs and 72 tons of incendiaries munitions. During the bombings, 10 per cent of all of the buildings in Warsaw were destroyed and 40 per cent of the others were damaged. Hospitals, churches, cultural landmarks and multiple other targets with no military connection at all were destroyed, as were 60,000 citizens in what the ICRC delegate who was present described as ‘a city bombed as no city has ever been bombed before in history’.98 From such experiences, as he was planning his further conquests in Europe, Hitler had ordered that air attacks on industrial targets ‘or such as might highly endanger the civilian population, are forbidden in Belgium, Holland and Luxembourg’.99 However, by the end of November 1939, the prohibition had changed to allow the bombing of these ‘centres of population, and in particular large open cities’ if there was ‘compelling military necessity’.100 Within the margins of these directives, on 14 May of the following year, Hitler’s forces managed to destroy a good percentage of Rotterdam and 900 of its citizens, also a defended city, after the Luftwaffe failed to receive word that the people they were about to bomb had already agreed to negotiate their surrender.101 95   The Royal Air Force and its associated wings lost 8,953 bombers over the course of the war, over 400 in the last four months of 1945. For the figures, see Neillands, R (2002) The Bomber War (London, Murray) 378–79; Lambert, M (2005) Night After Night: New Zealanders in Bomber Command (Auckland, Harper) 34. 96   Fuller, J (1972) The Conduct of War, 1789–1961 (London, Methuen) 286. 97   Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 104; Neillands, R (2002) The Bomber War (London, Murray) 379; Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 77. 98   Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 377; Baker, N (2008) Human Smoke (London, Simon & Schuster) 148–49; Nicholas, L (1994) The Rape of Europa (Kent, Papermac) 61; Taylor, F (2005) Dresden: Tuesday 13 February 1945 (Edinburgh, Bloomsbury) 87; Olson, L (2003) Four Your Freedom and Ours (London, Heineman) 54–55, 68–69; Neillands, R (2002) The Bomber War (London, Murray) 35. 99   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 52, Dir 7. 100   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 55, Dir 8. 101   Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 35.

The Second World War 27

Although both Warsaw and Rotterdam had been devastated by aerial bombardment, both Germany and Britain were initially very restrained towards each other in regards to this matter. On September 3, 1939 Hitler authorised air attacks on English naval bases and on the high seas ‘and on definitely identified troop transports [but] only in the event of English air attacks on similar targets’.102 Britain responded in kind on the same day and bombed (but rarely hit) German naval vessels at sea. The RAF was anxious to avoid collateral damage by bombing land targets. However, despite the intentions of both sides, civilians began to be killed. The first British civilians to die in the Second World War in March 1940 were on the Orkney Islands from bombing raids which were aiming at warships. A reply in kind against Germany, to the applause of the House of Lords, was launched the next day. By this point, the British had abandoned attempts to bomb with precision during the daylight, because it was far too dangerous for the bomber crews as either the German fighters or anti-aircraft defences were quick to shoot them down. For example, at the end of December 1939, 24 Wellington bombers attacked Wilhelmshaven. Twelve of them were shot down by Luftwaffe fighters and three crash landed on their home run to England. This represented a casualty rate of 63 per cent. Unable to sustain such statistics, the British started to bomb at night and from great heights. The result was very inaccurate bombing. Even with navigation and target marking, bombing accuracy became more an issue of luck than judgment. As it was, studies were showing that only 30 per cent of RAF aircraft were within five miles of the target and many aircrews were just dropping their loads in open country occupied by the enemy. Due to such results, Germany issued three warnings to Britain, stating that the RAF bombings were indiscriminate in result and hitting undefended towns. They warned ‘bomb will be repaid with bomb if the British continue bombing non-military targets’.103 However, the British were undeterred and by May the RAF had begun to bomb oil and railway targets, which tended to be in the middle of cities, in the Ruhr. The British denied that they were targeting towns and the RAF air staff insisted in their Directive that: ‘In no circumstances should night bombing be allowed to degenerate into mere indiscriminate action, which is contrary to the policy of His Majesty’s Government.’104 Despite this initial approach, Churchill knew when he acceded to power on 10 May 1940 that the Germans did not want a bombing war, as the Luftwaffe, unlike the RAF, was not made for heavy bombing campaigns. This was unlike the fighter war that was raging over Britain which he was on the cusp of losing. As such, Churchill reasoned that if he could turn the war from one involving fighters to bombers, Britain had a chance of staying in the conflict. Accordingly, on 11 May, he approved 18 British bombers to fly to the countryside in Westphalia to destroy railway stations. By the middle of the month, raids were occurring on, inter alia, Cologne, Munster and Dusseldorf, and hitting targets of very limited or no military importance. Churchill went on bombing, hoping that reprisals would come back onto Britain and draw the heat off the RAF in the Battle of Britain. He was soon to get his wish. On 24 May 1940, Hitler issued a directive by which the Luftwaffe was ‘authorised to attack the English homeland in the fullest manner, as   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 41, Dir 2.  Baker, N (2008) Human Smoke (London, Simon & Schuster) 167, 172; Neillands, R (2002) The Bomber War (London, Murray) 15, 36, 42; Taylor, F (2005) Dresden: Tuesday 13 February 1945 (Edinburgh, Bloomsbury) 132. 104   Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 35–36. 102 103

28  Targets

soon as sufficient forces were available’. This was to be started with ‘an annihilating reprisal for the English attacks on the Ruhr’.105 So as to infuriate Hitler even further, on 20 June 1940, the definition of ‘military targets’ was expanded to encompass industrial targets which included workers’ homes next to such industries. This allowed the German population around the target zones ‘to feel the weight of the war’.106 It was at this point that the British did away with the fiction that they were only attacking military targets, and the new method was to be known as ‘area bombing’. More German cities of very limited military value, including Bremen, were hit in July. Soon afterwards, when a German aircrew which had been aiming for an aircraft factory at Rochester and the nearby oil storage tanks on the banks of the Thames bombed London in error on 24 August, Churchill ordered the 50 bombers to attack Berlin the following night in retaliation.107 This bombing of Berlin was aimed at causing the greatest possible disturbance and dislocation to both the industrial activities and the civil population in the area. This infuriated Hitler, and struck a chord in him, and on 4 September, he threatened to ‘wipe-out’ British cities if their indiscriminate attacks did not stop. He thundered: If they attack our cities, we will raze theirs to the ground . . . we will stop the handiwork of these air pirates, so help us God . . . When the British air force drops two or three thousand kilograms of bombs, then we will in one night drop 150,000, 250,000 or 400,000 kilograms. When they declare that they will increase the attacks on our cities, then we will raze theirs to the ground.108

After the war, Herman Goering (1893–1946) tried to insist that the bringing of the Blitz to London was the fault of the British, and given the fact that Churchill had consciously sacrificed London and other English cities for the sake of staying in the war, Goering was correct. Hitler had taken the bait that had been laid in what was possibly his worst decision of the war whereby in an attempt to draw the RAF fighters to the defence of the British capital, he had London attacked as a ‘measure of reprisal’ for the attack on Berlin. The Blitz began on 7 September 1940. On 10 September, Berlin, and the Reichstag in particular, was hit again. At this point, the full weight of the Luftwaffe was placed on London and over the following three weeks some 7,000 civilians would die. By the middle of 1941, the civilian death toll was over 40,000 with another 60,000 seriously injured. Almost a quarter of a million homes were destroyed. Firestorms were not unknown. On the night of 29 December 1940, hundreds of incendiaries were dropped around St Paul’s Cathedral and started over 1,500 separate fires. General Alfred Jodl (1890–1946) believed that such raids would ‘paralyse the people’s will to resist’, but the converse happened and the Blitz actually galvanised the British will to resist.109 As Churchill explained: ‘The wanton, indiscriminate bombing   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 69, Dir 13.  Lindqvist, S (2001) A History of Bombing (London, Granta) 181. 107   Kalshoven, F (2005) Belligerent Reprisals (Leiden, Nijhoff) 161–67, 175–78; Baker, N (2008) Human Smoke (London, Simon & Schuster) 214, 216, 276. 108  Toland, J (1997) Adolf Hitler (Ware, Wordsworth) 629; Lambert, M (2005) Night After Night: New Zealanders in Bomber Command (Auckland, Harper) 77; Baker, N (2008) Human Smoke (London, Simon & Schuster) 226. Holland, J (2010) The Battle of Britain (London, St Martins) 427–31. 109   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 80, Dirs 1 and 17; Baker, N (2008) Human Smoke (London, Simon & Schuster) 183, 229; Lindqvist, S (2001) A History of Bombing (London, Granta) 10, 159, 179; Neillands, R (2002) The Bomber War (London, Murray) 45; Taylor, F (2005) Dresden: Tuesday 13 February 1945 (Edinburgh, Bloomsbury) 125; Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 42. 105 106

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of London . . . killing large numbers of civilians . . . little does [Hitler] know the spirit of the British nation, or the tough fibre of the Londoners . . . what he has done is kindle a fire in British hearts.’110 Even Hitler was forced to concede at the end of 1940 that ‘the least effect of all (as far as we can see) has been made upon the morale and will to resist of the English people’.111 He added that ‘no decisive success from terror attacks on residential areas . . . can be expected’.112 However, the policy of large-scale indiscriminate bombing continued. After the British attacked Munich just after Halloween in late 1940, Hitler called for attacks against the British cultural centres in reply. He stated: ‘[P]reference is to be given to those where attacks are likely to have the greatest possible effect on civilian life . . . terror attacks of a retaliatory nature are to be carried out against towns other than London.’113 The Germans answered these demands with a reprisal attack on Coventry. Coventry was not only a cathedral city, it was also an important centre for the British arms industry with two aircraft producing factories and 20 or so sub-contractors. Five hundred tons of bombs were dropped on the night of 14 November, killing 568 people and causing massive damage. A little over a month later on 16 December 1940, Mannheim was bombed as a reprisal for the destruction of Coventry. This was the first ‘area operation’ by 134 bombers in the Second World War. The bomber force aimed at the heart of a specific urban area rather than an individual factory, airfield or other milit­ ary installation. At least 115 civilians were killed in a raid that hit houses, hospitals and schools.114 The practice of indiscriminate bombardment, reprisal and counter-reprisal followed Hitler’s invasion of the Soviet Union in 1941. Within three weeks of this invasion Hitler ordered the Luftwaffe to attack Moscow as a reprisal for Russian attacks on Bucharest and Helsinki. In other instances, such as with the German attack on Kiev, he expressly ordered that the city should be destroyed by incendiary bombs; whilst when his forces surrounded Leningrad, his instruction was to have the city ‘wiped from the face of the earth’. His intention was ‘to close in on the city and blast it to the ground’ by artillery fire and air bombardment. He added ‘in this war for existence, we have no interest in keeping even part of this great city’s population’.115 Accordingly, Leningrad was bombed 23 times with 987 high explosive bombs and 15,100 incendiary munitions. This was in addition to some 5,364 shells fired from ground artillery into the city over the same month. This shelling was supplemented by accurate artillery grids which gave firing points for, inter alia, the Institute for Maternal Care, an infant school and civilian apartments.116 Although Hitler’s forces dished out this indiscriminate bombardment between Britain and the Soviet Union, it was clear by the middle of 1941 that, although the British knew that their bombing was not impacting upon German morale, any more   Churchill, W (1957) Great War Speeches (London, Transworld) 61.   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 102, Dir 23. 112   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 104, Dir 23. 113   Taylor, F (2005) Dresden: Tuesday 13 February 1945 (Edinburgh, Bloomsbury) 145. 114   Neillands, R (2002) The Bomber War (London, Murray) 48; Taylor, F (2005) Dresden: Tuesday 13 February 1945 (Edinburgh, Bloomsbury) 129; Baker, N (2008) Human Smoke (London, Simon & Schuster) 250; Lindqvist, S (2001) A History of Bombing (London, Granta) 182. 115   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 165. Note also Dirs 33 and 34 at 142 and 148. 116   Jones, M (2009) Leningrad: State of Siege (London, Murray) 106, 127, 131, 281. 110 111

30  Targets

than the Blitz was upon the Londoners, the British were willing to reply in kind to Germany. On 14 July 1941, Churchill warned: ‘It is time that the Germans should be made to suffer in their own homeland and cities something of the torment they have twice in our lifetime let loose upon their neighbours and upon the world.’117 To supplement this approach, on Valentine’s Day in 1942, Directive 22 of the RAF was issued. This stated that aerial attacks would focus: ‘[O]n the morale of enemy civilian populations, in particular, industrial workers . . . [the] aiming points [were] to be built up areas, not, for instance, the dockyards or aircraft factories . . . this must be quite clear if it is not already understood.’118 Directive 22 coincided with Sir Arthur Harris (1892–1984) being promoted to Air Marshall and Commander and Chief of the RAF. Harris was the living embodiment of the ‘bomber dream’ – that bombing could win wars without the need for land offensives by taking warfare to civilians, this making the price too high for the opposing side to continue. With such thinking, on 28 March, Harris launched his offensive against German ‘mixed’ areas. He ran a raid on Lubeck with incendiary bombs leaving 15,000 people homeless. On 18 April, he burned down Rostock. On 30 May, for the first time, he sent 1,047 bombers against Cologne, of which 890 reached their target and dropped 1,455 tons of bombs. Essen was bombed by just under 1,000 planes on 1 June – destroying over 45,000 houses and killing some 469 people. Soon afterwards, Bremen was bombed, resulting in the death of close to a further 500 people. Churchill’s advice to the German civilians at this point was for them to ‘abandon their work, and go out into the fields, and watch their home fires burning from a distance’.119 On 21 January 1943 the Casablanca Directive for the British and American air forces was issued. This stated clearly that the: [P]rimary object will be the progressive destruction and dislocation of the German military, industrial, and economic system, and the undermining of the morale of the German people to a point where their capacity for armed resistance is fatally weakened.120

Within this Directive the primary targets were submarine construction yards, the aircraft industry, transportation, oil plants and other targets in the enemy war industry. It was added that ‘other objectives of great importance either from the political or military point of view must be attacked’. Examples of these included ‘Berlin, which should be attacked when the conditions are suitable for the attainment of the specially valuable results unfavorable to the morale of the enemy’ and ‘to sustain continuous pressure on German morale’.121 The importance of this approach was that although the attack on morale was still important, targets other than cities were uppermost.122 A good example of this type of ‘other objective’ which was not a city but which contributed to the war effort, and also involved large-scale collateral damage was the Dam Buster 117  Churchill, W (1957) Great War Speeches (London, Transworld) 114; Baker, N (2008) Human Smoke (London, Simon & Schuster) 430. 118  Lindqvist, S (2001) A History of Bombing (London, Granta) 194; Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 47. 119   Churchill, W (1957) Great War Speeches (London, Transworld) 155; Neillands, R (2002) The Bomber War (London, Murray) 53, 12–124, 299; Lindqvist, S (2001) A History of Bombing (London, Granta) 196, 200. 120   The Casablanca Directive, as in Neillands, R (2002) The Bomber War (London, Murray) 190. 121  United States Department of State / Foreign Relations of the United States. The Conferences at Washington, 1941–1942, and Casablanca, 1943 (1941–1943) III; The Casablanca Conference, [485]–849 ff. 122   Neillands, R (2002) The Bomber War (London, Murray) 202.

The Second World War 31

raids of 16 to 17 May 1943. In this instance, 19 aircraft set out to attack the Ruhr dams. They attacked five dams, breaching the Mohne and Eder dams and damaging two others. The floods spilled out across the Ruhr valley for 80 kilometres, extinguishing blast furnaces, flooding coal mines, swamping homes and killing 1,294 civilians. However, the largest single group killed in the raid was not Germans, but prisoners of war, who had been confined below the Mohne dam. The Allies later went on to consider repeating the same exercise in Italy, but rejected it because it might have killed ‘too many civilians’.123 Although this type of strategic approach was largely reiterated with the Pointblank Directive of June 14, 1943, the RAF continued bombing attacks around surrounding industrial areas at night. The best, or worst, example of this occurred on the night of 27 July 1943 when Hamburg was bombed with 1,200 tons of incendiary munitions dropped on residential areas which provided the labour for the war industries. Within 20 minutes, two thirds of the buildings within an area of 4.5 square miles were on fire. Twenty-four medical facilities were destroyed. Wind speeds grew to hurricane force and air temperatures reached 400 to 500 degrees Fahrenheit, as a firestorm was created. Between 46,000 and 100,000 people were killed in the attack. At the heart of the apocalyptic fire there were no survivors found, none at all. The Germans were, as Churchill suggested ‘reaping the whirlwind [having] sowed the wind’.124 As for international law in the context of the bombing of Hamburg, Harris merely remarked that this ‘can always be argued pro and con, but in this matter of the use of aircraft in war there is, it so happens, no international law at all’.125 This approach of the RAF needs to be viewed against the practices of the other major air force bombing occupied Europe, namely the USAAF. In Europe, unlike the British and associated forces, the Americans bombed by day. They also used high explosive and not incendiary munitions and emphasised precision bombing using the Norden bombsight. Fundamentally, the United States believed that, in Europe, area bombing was unethical (it was ‘contrary to our national ideals to make war on civilians’),126 and achieved very little, and that only the precision bombing of military and industrial targets vital to the enemies’ war effort would achieve the goals of winning the war. The primary targets were ball-bearing works, aluminum smelters and most crucially, as Albert Speer (1905–81) later conceded, oil plants, as this ended up cutting German fuel production by 90 per cent.127 Despite the fact that targeting such key points did actually contribute directly to winning the war, the leaders in the RAF, such as Harris, considered attacks on oil installations a hindrance to his primary goal of attacking cities. Accordingly, the RAF, despite developing remarkable accuracy with some of their pathfinders, continued to ramp up their broad policy of area bombing and trying to break German morale.  Brickhill, P (1983) The Dam Busters (London, Pan) 101–105, 111, 112, 154–55.   Churchill, W (1957) Great War Speeches (London, Transworld) 195; Eden, L ‘City on Fire’ Bulletin of Atomic Scientists (Jan 2003) 33–38; Maier, C (2005) ‘Targeting the City: Debates and Silences About the Aerial Bombing of World War II’ International Review of the Red Cross (IRRC) 87(859), 429–43; Neillands, R (2002) The Bomber War (London, Murray) 239–42, 265; Lindqvist, S (2001) A History of Bombing (London, Granta) 202. 125  Harris, as noted in Burleigh, M (2010) Moral Combat. A History of World War II (London, Harper) 495. 126   Neillands, R (2002) The Bomber War (London, Murray) 156. 127   See Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 94, 484; Neillands, R (2002) The Bomber War (London, Murray) 156–60, 326. 123 124

32  Targets

Eighty per cent of all the bombs of the Second World War were dropped in the last 10 months of the war in Europe. Sixty-seven thousand tons were dropped in March alone. This was not only the greatest amount for any single month of the war, it also represented only slightly less than the entire tonnage dropped during the first three years of the war. Dozens of cities in Germany were hit in this period, including most notably Kassel, Stuttgart and Darmstadt. The 11 September 1944 raid on Darmstadt created a firestorm a mile high. Terrified by the roaring of the storm, people stayed in their shelters and mainly died of suffocation. Over 12,000 were killed. The Air Battle of Berlin from November 1943 to March 1944 was a series of 18 large raids which saw the city receive over thirty thousand tons of bombs. Although the city would be bombed a total of 363 times by the end of the war, the 1943–44 Air Battle was particularly significant; at least 10,300 people died in this campaign. In this instance, only 187 of the dead were service personnel. The others were all German civilians (9,390) or foreigners, who were mostly forced labour. Women and children made up the majority of the civilian deaths. Studies after the war showed that for every 100 male casualties there were 181 female casualties in Darmstadt, 160 in Hamburg, 136 in Kassel and 122 in Nuremberg. In all, around one fifth of those killed were children under the age of 16 years and another one fifth were over the age of 60.128 The Germans were not alone in being killed beneath the Allied bombs. Collateral damage was vast throughout Europe. For example, in France, over 70 per cent of Caen and over 800 civilians were destroyed by Allied bombing in an attempt to weaken the German defences during the D-Day offensive. These civilians were part of a larger subset of an estimated 15,000 French nationals who were killed by such bombing. They were joined by an additional 19,000 people who were killed during Operation Overlord. Attempts by the ICRC to limit these impacts via the creation of ‘zones of immunity’ in Europe, akin to the safety zones they had managed to create to shield civilians from Japanese soldiers in China, were rejected. The ICRC proposals for no-fly zones where both civilians and prisoners of war could be held, although accepted in principle by the German High Command, were rejected by the Allies as the Luftwaffe by this stage was a spent force and the Allies could not see what benefit they could get from such areas. However, it should not be assumed that the Allies were completely without restraint in this area. In some instances, factories of (‘non-vital’) importance to the German war effort were not struck because they were being staffed by French workers.129 Although the large-scale bombing capacity of the Luftwaffe had been greatly eroded by the middle of 1944, the Nazis continued to attempt to reply in kind. It was in the last 12 months of the war that they introduced what may have been the worst case of targeting with conventional weapons in the Second World War; the so-called ‘flying bombs’ which could hardly hit a particular city, let alone a specific point within them. They were, as Churchill recognised, ‘a weapon of gross inaccuracy . . . literally and 128   Taylor, F (2005) Dresden: Tuesday 13 February 1945 (Edinburgh, Bloomsbury) 216, 427; Lindqvist, S (2001) A History of Bombing (London, Granta) 213; Neillands, R (2002) The Bomber War (London, Murray) 285; Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 70; Hobbes, N (2003) Essential Militaria (London, Atlantic) 41; Middlebrook, M (1998) The Berlin Raids (London, Viking) 1–3, 140–50, 320–25; Bourke, J (2006) ‘Barbarisation vs Civilisation’ in Kassimeris, G (ed) (2006) The Barbarisation of Warfare (London, Hurst) 16, 22. 129   Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 366; Beevor, A (2009) D-Day. The Battle for Normandy (London, Viking) 147, 519; Nicholas, L (1995) The Rape of Europa (Kent, Papermac) 283; Brickhill, P (1983) The Dam Busters (London, Pan) 155–56.

The Second World War 33

essentially indiscriminate in its nature, purpose and effect’.130 Although the Americans operated the short-lived Operation Aphrodite (where planes were loaded with explosives and fuel, and the crews would bale out before leaving friendly airspace, leaving them on auto-pilot to fall, somewhere in Germany),131 and they had toyed with their own version of the flying bomb, it was the Germans who perfected this weapon. The German V-1 and V-2 attacks were designed to wreak terror, hence their ‘V’ designation, for ‘Vergeltung’ meaning reprisal or retaliation.132 The V-1 was the Luftwaffe’s solution to the problem of hitting the enemy far beyond the battlefront without losing the most expensive of all aviation components, namely the pilot. The V-1 was small and cheap, made mostly of sheet steel, with a simple magnetic and gyroscopic guidance system and a crude timing device to cut the engine over the target, sending the craft and its warhead plunging into the ground. The first V-1 hit England on 13 June 1944. An additional 5,282 followed it. These killed 6,184 people and seriously injured a further 17,981. An additional 2,754 people living in England were killed by V-2 rockets, with a further 6,523 seriously injured. These very expensive weapons also cost the lives of at least 10,000 slave labourers who were put to work in inhumane conditions to complete this project. About 4,000 V-2s were launched, but only about 3,000 of them came back to earth as at least 25 per cent of them disintegrated in mid-air. They were too late to alter the course of the war, but they were the platform for the coming nuclear arms race. The British initially thought of retaliating against the rocket attacks with the use of poison gas. However, this was dismissed, despite suggestions that the rocket attacks contravened the laws of war, as they knew their own bombing campaign was far from being beyond reproach. The last V-2 hit London on 27 March 1945. This weapon hit a block of flats in Whitechapel and killed 134 of the residents. Additional attacks with V weapons on, inter alia, Antwerp, Brussels, Liege and Remagen killed or wounded 2,856 military personnel and 11,902 civilians.133 The exemplar in Europe of all of the above considerations was the bombing of Dresden. Dresden was the Florence of Germany. It was an old, cultural, Baroque capital, full of art treasures and architectural masterpieces that had been left untouched for most of the war. The city was also full of refugees and relatively undefended, as most of its anti-aircraft defences had been removed to the Eastern front. The Allies did not know that it was undefended. It was not an open city. In fact, unknown to the people of Dresden, their city had been classified by the Nazi military as a ‘defensive area’. Dresden was also ranked high among the Reich’s wartime industrial centres. The city contained the Zeiss-Ikon optical factory and the Siemens glass factory. In the suburbs, the authorities manufactured radar and electronic components for anti-aircraft shells, as well as gas masks, engines for aircraft and cockpit parts for fighters. Despite these industries, the goal of targeting Dresden was to stop German troop transports to the Eastern Front. This could have been achieved if the Allied bombers had hit the railway bridge over the   Churchill, W (1957) Great War Speeches (London, Transworld) 236.   Neillands, R (2002) The Bomber War (London, Murray) 342. 132   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 239, Dir 55; Irons, R (2003) Hitler’s Terror Weapons (London, Collins) 165. 133   Irons, R (2003) Hitler’s Terror Weapons (London, Collins) 82, 114–19, 195; Maier, C (2005) ‘Targeting the City: Debates and Silences About the Aerial Bombing of World War II’ IRRC 87(859), 429–43; Taylor, F (2005) Dresden: Tuesday 13 February 1945 (Edinburgh, Bloomsbury) 194, 429; Grayling, A (2006) Among the Dead Cities (London, Bloomsbury)154; Crosby, A (2002) Throwing Fire: Projectile Technology Through History (Cambridge, Cambridge University Press) 153–67. 130 131

34  Targets

river Elbe, yet ironically this was one of the few things left standing after 2,660 tons of bombs made up of a mixture of explosives and incendiaries created a massive firestorm which swallowed large parts of the city. The following day the USAAF dropped a further 771 tons on the marshalling yards and railway stations. This was followed by fighter aircraft machine-gunning people and traffic in the streets and other ‘targets of opportunity’.134 The targets of opportunity included the largest hospital in the city, which contained 45 expectant mothers who were all killed when the building was hit by a blockbuster bomb in the first attack. The building was then hit by a number of explosive and incendiary bombs in the second strike. Finally, the remnants of the hospital were machine-gunned by American Mustangs in the third attack. Estimates of how many were killed in the bombing of Dresden range from 25,000 to 135,000. The 25,000 figure followed a review by a special commission in 2007.135 Following Dresden, an RAF officer told a press briefing that they were employing a strategy of ‘deliberate terror bombing of German population centres as a ruthless expedient to hasten Hitler’s doom’.136 Hitler was so furious over Dresden that he seriously considered executing as many prisoners as civilians had died, and it was only after the direct objections of the rest of the Nazi hierarchy that such an act would not only destroy the Geneva Conventions but escalate the terror, that Hitler backed down.137 At the same time, a number of Allied leaders began to question the utility of such approaches. On 6 March 1945, Churchill, wrote to his Chief of Staff stating that he felt: [T]he need for more precise concentration upon military objectives such as oil and communications behind the immediate battle zone, rather than on mere acts of terror and wanton destruction, however impressive.138

Area bombing virtually ceased after Churchill sent this note. The last raid by RAF bombers on Europe was on 25 April 1945. By that point, after five years of escalating bombardment on a wide range of targets, German morale did appear to break. This break was also due to imposed hardships, a realisation that they were going to lose the war, and a near pathological fear of the invading Soviet army.139 The Second World War in the Pacific also saw a remarkable degree of indiscriminate bombing methods. The best example of such indiscriminate practices from the Japanese perspective involved their release of some 9,300 paper balloons that drifted with the trade winds across the Pacific to bomb the United States. The balloons, the first inter-continental weapons, were 38 feet in diameter and each carried an anti-­ personnel bomb weighing 35 pounds. These landed as far apart as Alaska and Mexico and a few even reached Iowa. They were, however, a complete failure in terms of impact, killing only six people.140 134   Taylor, F (2005) Dresden: Tuesday 13 February 1945 (Edinburgh, Bloomsbury) 168–89, 258; Neillands, R (2002) The Bomber War (London, Murray) 352. 135   AP ‘Commission Lays Ghosts of Dresden Bombing to Rest’ New Zealand Herald (3 Oct 2008) A17; Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 72; Neillands, R (2002) The Bomber War (London, Murray) 366. 136   The words reached front pages in the United States, but were censored in the UK. Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 72. 137  Beevor, A (2002) Berlin: The Downfall 1945 (London, Penguin) 83. 138  Lindqvist, S (2001) A History of Bombing (London, Granta) 218; Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 82. 139   Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 103. 140   Knightley, P (1975) The First Casualty (London, Pan) 297.

The Second World War 35

The Japanese failure to achieve large-scale indiscriminate bombing of American civilians was unlike the American bombardment of Japan which killed between 300,000 and 900,000 people and destroyed nearly 50 per cent of the built up areas of 66 Japanese cities before the atomic bombs fell. In one of the largest contradictions of the Second World War, whilst the American air force in Europe was renowned for its attempts to hit only military targets, with some American commanders like General Douglas MacArthur (1880–1964) strongly attempting to avoid indiscriminate bombardments in some of the occupied territories, the American air force in the Pacific became known for its intentional destruction of Japanese cities. Although the Americans maintained the rhetoric that they were not practising indiscriminate bombing of civilian populations and their object was to destroy industrial and strategic targets in urban areas, the reality for those in the path of the storm was very different. Whilst some prominent Americans like Henry Stimson (1867–1950) strongly objected to the targeting of city centres in Japan, arguing it would give the United States ‘a reputation for outdoing Hitler in atrocities’,141 his voice was a rarity. The American campaign began with the Doolittle raid over Tokyo. Although the Doolittle targets were war-related industries, less than 2 per cent of the attacking aircraft dropped their ordnance within a thousand feet of the aiming point and civilian areas caught the brunt of the attack. At the end of November in 1944, 111 American bombers overflew Tokyo. These were the first bombers to overfly Tokyo since the Doolittle raid. In 10 days nearly half of the destruction that had rained on Germany over the whole of the war was dumped on Tokyo, Osaka, Nagoya and Kobe. The difference from the bombing of Germany was that 14,000 tons of napalm was also dropped liberally. The six-pound M-69 incendiary bomb, dropped in clusters packed into cylinders primed to burst at predetermined heights, contained slow burning napalm designed to spread on impact. It proved to be one of the most deadly weapons of the Second World War. Regarding such weapons, General Curtis LeMay (1906–1990) laconically described his policy of targeting in Japan as ‘bomb and burn ’em till they quit’. At the end of May 1945, 1,600 tons of napalm were dropped on undamaged parts of Tokyo, causing greater damage than any single air attack in history. Between 83,000 and 120,000 people perished, as the entire working residential area, 63 per cent of the commercial area and 18 per cent of the industrial area, burnt to the ground. LeMay later recorded, ‘There are no innocent civilians . . . The entire population got into the act and worked to make those aeroplanes and munitions . . . men, women, and children’.142 On 11 March a further 3,000 people died as Osaka was bombed. On 16 March Kobe was hit and another 8,000 people were killed.143 The final attacks of note on Japan, where any pretense of discriminate warfare was irradiated within the flash beneath the mushroom, were those where nuclear weapons were dropped on Hiroshima and Nagasaki. These attacks are discussed in the second chapter of the third volume of this collection, The Customs and Laws of War with Regards to Arms Control.  Hastings, M (2008) Nemesis: The Battle for Japan (London, Harper) 329.  Le May, in Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 142. Also, Maguire, P (2001) Law and War: An American Story (NYC, Columbia University Press) 101–102. 143  Hastings, M (2008) Nemesis: The Battle for Japan (London, Harper) 256, 311, 320–22, 329–30; Lindqvist, S (2001) A History of Bombing (London, Granta) 228; Neillands, R (2002) The Bomber War (London, Murray) 158, 380; Grayling, A (2006) Among the Dead Cities (London, Bloomsbury) 76, 77, 92; Boot, M (2006) War Made New. Technology, Warfare and the Course of History (NYC, Gotham) 289. 141 142

36  Targets

5 .  The Nuremberg Trials and the

1949

Geneva Conventions

It was envisaged that the ‘wanton destruction of cities, towns or villages, or devastation not justified by military necessity’144 would be examined at the Nuremberg trials as a potential war crime. However, none of the bombing campaigns of any of the belligerents were examined in the war crimes trials that followed the end of the Second World War. Perhaps aware of the extent of the Allied bombing campaigns and how the Germans had initially attempted to show some restraint in this area, Telford Taylor (1908–98) who was counsel for the prosecution, described Allied and German bombing practices as innocent because the bombing of cities and factories has become a recognised part of modern warfare, as practised by all nations, and was thus customary law. As a result, any of the nascent protections of the Fourth Hague Convention of 1907 were not applicable.145 As such, those responsible for the mass bombing of civilians were never examined according to the rules of war. Likewise, some of the key architects of the weapons that were to change the face of warfare, such as Wernher von Braun (1912–77) who masterminded the V-1 and V-2 campaign for Nazi Germany, avoided any critical examination or punishment for devising the ultimately indiscriminate weapon, and went on to carry on his work for his new American paymaster.146 As such nothing appeared in the Nuremberg or Tokyo judgments that could take the law regarding aerial bombardment an inch further than it had been when the Second World War started.147 This type of unwillingness to contemplate the intentional bombing of civilians as wrong was also replicated with the Geneva Conventions, where the debate about the protection of civilians proved very controversial, with the British opposing rules that restricted freedom to carry out operations, especially bombing. This was not surprising given that the French and the British were continuing to use bombing as a ‘policing measure’ in the troublesome colonies of Aden in 1947, and both Kenya and Madagascar in 1948. In the later conflict, the British dropped some 50,000 tons of bombs.148 Likewise, after negotiations had broken down with Ho Chi Minh in 1946, the French navy, army and air force opened fire on the Chinese and Vietnamese quarters of Haiphong, causing a ‘heavy’ death toll of ‘no more than 6,000’.149 With such a background, and a determination to ensure that their options were not restricted, the 1949 Geneva Conventions did not directly protect civilians from air attack or indiscriminate bombing. Whilst Article 33 of Geneva Convention IV explicitly prohibited collective penalties, reprisals and all measures of intimidation against civilians, the Convention failed to pick up on the earlier developments of defended and undefended cities. Rather, partly due to a fear by the Americans that the formalisation of such ideas could restrict nuclear warfare, the Geneva Convention on the Protection of Civilians focused at a much lower level and reworked the idea of sanctuaries or, in more modern language, neutral ‘safety zones’ and commitments that civilians must not be   Nuremberg Charter, Art 6(b).  Lindqvist, S (2001) A History of Bombing (London, Granta) 239. 146   Freedman, L (2001) The Cold War (London, Cassell) 52–54. 147  Best, G (2002) War and Law Since 1945 (Oxford, Oxford University Press) 205. 148  Lindqvist, S (2001) A History of Bombing (London, Granta) 282, 284. 149   Porter, G (1979) Vietnam: A History in Documents (NYC, Miridian) 51–52; Windrow, M (2005) The Last Valley (London, Cassel) 90. 144 145

Between 1949 and 1977 37

transferred to places which are military targets in an attempt to shield them.150 The location of these zones, which were strongly pushed by the ICRC, was to be communicated to the opposition in advance.151 These safety zones were meant to be for the wounded and sick, and the general civilian population who took no part in hostilities nor performed any work of a military character.152 Specific mention was made of not targeting (clearly marked) hospitals, medical stores or medical transports (which were to travel on pre-agreed routes and be available for inspection).153 The wounded, sick, aged, children under 15, expectant mothers and mothers of children under seven were made subject to special considerations of protection. In particular, ‘the wounded and sick, as well as the infirm, and expectant mothers, were agreed as being the object of particular protection and respect’.154 It was also agreed that the parties to conflicts would endeavour to conclude agreements for the removal from besieged or encircled areas civilians, whilst also allowing for the passage of humanitarian assistance into them.155 6 .  Between

1949

and

1977

The Korean War began the year after the Geneva Conventions were agreed. In this conflict, an estimated 167,100 tons of bombs and 42,000 tons of napalm were dropped by American-led United Nations forces. The targets included a number of North Korean centres and their power-plants including the major cities of P’yongyang, Rashin, Chongjin and Wonsan. One attack on Pyongyang on 11 July 1952 resulted in 1,400 tons of bombs and 23,000 gallons of napalm being delivered by 1,254 aircraft. Such incendiary raids were on a greater scale than those which had taken place over Japan seven years earlier.156 Some notable figures of the period agreed with Winston Churchill, who went on record as stating: ‘I do not like napalm bombing at all . . . noone [at the time of its invention] ever thought of splashing it about all over the civilian population.’157 However, the use of such weapons was not specifically prohibited in international law; and nor was the targeting of dams which the United Nations forces aimed for in 1953 as a way to force the Communists to the negotiating table. Although it was argued that military significance applied because troops surrounded them, when two dams were breached causing large-scale damage (the Toksan and Chasan), there was a great deal of condemnation.158 The bombing of Vietnam by the air forces of the United States and its allies was extraordinarily extensive. What began with the justification of reprisal just over the border with North Vietnam for attacks on American bases under operation Rolling   Geneva IV, Art 28.  Best, G (2002) War and Law Since 1945 (Oxford, Oxford University Press) 104, 106–14. 152   1949, Civilians, Art 15. 153   1949, Civilians, Arts 18, 19, 20, 21, 22, 23 (for general protections) and Arts 56 and 57. Note Annex I of the Draft Agreement Relating to Hospitals and Safety Zones. 154   1949, Civilians, Art 16. Note also Art 14. 155   1949, Civilians, Art 17. 156  Lindqvist, S (2001) A History of Bombing (London, Granta) 269. 157   Churchill, in Best, G (2002) War and Law Since 1945 (Oxford, Oxford University Press) 296–97. 158   Tucker, S (2002) The Korean War: A Political, Social and Military History (NYC, Checkmark) 25, 179, 473. Hastings, M (1987) The Korean War (London, Guild) 324–27. 150 151

38  Targets

Thunder (1965–68) ended up as the Linebacker Operations (1972). Linebacker II was geared towards inflicting civilian distress without excessive casualties. B-52s attacked railyards, storage areas, power plants, communication centres and airfields on Hanoi’s periphery. Over 20,000 tons of bombs were dropped in 10 days. Collectively these operations, when combined with all the others over the course of the war, saw some 15 million tons of explosives or 280 kilogrammes of dynamite for every person in the country, fired or dropped in anger. The American forces also made extensive use of ‘Napalm B’. This munition was composed of 50 per cent polystyrene thickener, 25 per cent benzene and 25 per cent gasoline. Napalm B burns hotter (about 850 degrees centigrade) and longer (up to 15 minutes) than ordinary napalm. Some 373,000 tons of this substance were also dropped on Indochina. This compared to 42,000 of napalm in Korea and 14,000 in the final years of the Second World War.159 It was with these weapons that General Curtis LeMay could declare his visions of: ‘bomb[ing] North Vietnam back to the Stone Age’. LeMay’s rhetoric was a clear reflection of that of President Richard Nixon (1913–94) who would regularly work himself into a frenzy over the bombing campaign, recording: we’re gonna blast the goddamn hell out of them . . . to hell with it! We’re gonna win. We’ve got to. I’ve got to. We’ve got some cards to play . . . we’re gonna level that goddamn country . . . we’re gonna hit ’em, bomb the livin’ bejesus out of ’em.160

Although North Vietnam was heavily bombed, it is worth noting that at least half of all of the above air-based munitions and almost all of the millions of tons of artillery shells fired by United States forces were expended over South, not North, Vietnam, with much of this being in ‘free fire zones’ where, after warnings to friendly inhabitants to leave, remaining civilians were at extreme risk. A United States Senate subcommittee released figures purporting to show 300,000 civilian casualties for such actions by 1968.161 Cambodia (2.7 million tons) and Laos (2 million tons) were also extensively bombed. Estimates put the number of civilians killed by American bombing in Laos at 350,000, and in Cambodia the estimates range from 100,000 to 600,000 as the bombs fells on targeted areas labeled ‘Breakfast, Lunch, Dinner, Dessert and Supper’.162 The American administration initially placed the most important targets off-limits. As such, President Lyndon Johnson (1908–1973) refused to strike Hanoi, Haiphong, the overland supply routes from China or the Red River dikes. However, some of these restraints were lifted in 1972 with the Linebacker II operation. Nevertheless, the 11-day bombing campaign of Hanoi and Haiphong still aimed at military supporting industries and the Americans were careful to avoid civilian targets. Despite such intentions, the results were often somewhat different. For example, in the case of 159   Tucker, S (1998) The Encyclopaedia of the Vietnam War (Oxford, Oxford University Press) 282; Lindqvist, S (2001) A History of Bombing (London, Granta) 344; Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 301, 312; Webster, D (1998) Aftermath: The Remnants of War (NY, Vintage) 166; Barnaby, F ‘Towards Environmental Warfare’ New Scientist (1 Jan 1976) 6–9; Monin, L (2002) The Devil’s Gardens: A History of Landmines (London, Pimlico) 71. 160   Nixon, noted in Greiner, B (2010) War Without Frontiers. The USA in Vietnam (NYC, Vintage) 51, 53. 161   Tucker, S (1998) The Encyclopaedia of the Vietnam War (Oxford, Oxford University Press) 140. 162   Kiernan, B (2002) The Pol Pot Regime (New Haven, Yale University Press) 19–23; Tucker, S (1998) The Encyclopaedia of the Vietnam War (Oxford, Oxford University Press) 359; Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 301; Hitchens, C (2001) The Trial of Henry Kissinger (Melbourne, Text) 35, 39–41; Lindqvist, S (2001) A History of Bombing (London, Granta) 346; Sheehan, N (1998) A Bright Shining Lie (London, Pimlico) 112–14.

The 1977 Additional Protocol 1 to the Geneva Conventions 39

Linebacker II, only 12 per cent of the attacks ended up hitting military targets. Nevertheless, these bombings appear to have helped induce North Vietnam to return to the negotiating table, and the 1973 Paris Peace Accords were the result.163 7.  The

1977

Additional Protocol 1 to the Geneva Conventions

The leap in terms of the legal constraints on indiscriminate targeting involving civilian populations, following prompting by the United Nations General Assembly in 1970 with their Basic Principles for the Protection of Civilian Populations in Armed Conflict,164 occurred in 1977 with the Protocol Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I). By 2010, this Protocol with 102 articles which dealt with everything from civilians to combatants had 170 State Parties. Although not as widely adhered to as the 1949 Conventions, the Protocol reflects a ‘trend towards a similarly wide acceptance’.165 The basic rule with regard to civilians in times of conflict, in all situations,166 was set down as: In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.167

The first basic obligation for those being attacked is to ensure that civilians are moved away from the vicinity of military objects and that military objects are not located within or near densely populated areas.168 With regards to those attacking, Article 51 stipulated that ‘the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations’.169 Accordingly ‘the civilian population as such, as well as individual civilians, shall not be the object of attack’170 and ‘in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects’.171 Moreover ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited’.172 As a sign of the seriousness of these rules, making civilians the object of attack; launching indiscriminate attacks affecting the civilian population or civilian objects in the knowledge that such attacks will cause excessive loss of life or damage; or making non-defended localities and demilitarised zones the object of attack, were all deemed to be grave breaches of Additional Protocol 1.173 163   Rochester, S (2007) Honor Bound. American Prisoners of War in Southeast Asia 1961–1973 (Annapolis, Naval Press) 192–93; Greiner, B (2010) War Without Frontiers. The USA in Vietnam (NYC, Vintage) 53–54; Lindqvist, S (2001) A History of Bombing (London, Granta) 346; Webster, D (1998) Aftermath: The Remnants of War (NYC, Vintage) 172. 164  UNGA Res 2765 (XXV) Basic Principles for the Protection of Civilian Populations in Armed Conflict (1970). See also UNGA Res 2444 (XXIII, Dec 19, 1968) and UNGA Res 3102 (XXVIII). 165   UNGA Res (2006) 61/30 Status of the Protocols Additional to the Geneva Conventions of 1949. 166   1977, Protocol 1, Art 49. 167   1977, Protocol 1, Art 48. 168   Art 58. 169   Art 51(1). 170   Art 51(2). 171   Art 57(1). 172   Art 51(2). 173   Art 85(3).

40  Targets

It was agreed that civilians were to be protected ‘unless and for such time as they take a direct part in hostilities’174 and ‘indiscriminate attacks’ were prohibited.175 Indiscriminate attacks are those which are not directed at a specific military objective, employ a method or means of combat which cannot be directed at a specific military objective, or employ a method or means of combat the effects of which cannot be limited. Examples of indiscriminate attacks include bombardments or similar which treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians or civilian objects. An indiscriminate attack can also be an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combin­ation thereof, which would be ‘excessive in relation to the concrete and direct military advantage anticipated’.176 These rules were not equated to mean that the presence, shielding or movements of civilians would render certain points or areas immune from military operations, and Parties to the Protocol were obliged not to direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.177 Nevertheless, the idea of proportionality was clearly added to the considerations.178 Attacks have to be strictly limited to military objectives. In so far as objects indispensable to civilian survival are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action, and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.179 In case of doubt about whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.180 In addition, works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations (which should be clearly marked) should not be made the object of attack or reprisal.181 This rule (which was not developed further, despite the recommendations of the United Nations General Assembly following the Israeli bombing of the Iraqi nuclear facilities in 1981)182 applies even where these objects are military objectives if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.183 The exception to this rule is if any of the three areas are working other than their normal functions and are providing regular, significant and direct support of military operations, and if such an attack is the only feasible way to terminate such support.184 If such an attack is neces  Art 51(3).   Art 51(4). 176   Art 51(5). 177   Art 51(7). 178  Best, G (2002) War and Law Since 1945 (Oxford, Oxford University Press) 280. 179   A number of states indicated on ratification of Protocol 1 that ‘the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack’. This is the UK Reservation to the Protocol. Germany has an identical reservation. 180   Art 52. 181   Art 56(7). 182   UNGA Res (1986) 41/12 Armed Israeli Aggression Against the Iraqi Nuclear Installation. 183   Art 56. 184   Art 56(2). 174 175

The 1977 Additional Protocol 1 to the Geneva Conventions 41

sary, it is still necessary to ensure that all practical precautions are taken to avoid the release of the dangerous forces. A number of precautions are obligatory with attacks that may involve civilians.185 Those who plan or decide upon an attack must ‘take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects’.186 They must do everything feasible to verify that the objectives to be attacked are neither civilians nor objects subject to special protection. They must take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects, and refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.187 Attacks should be cancelled or suspended if it becomes apparent that the objective is not a military one, if the object is subject to special protection, or if the attack may be expected to cause incidental loss of civilian life, injury, or damage which would be excessive in relation to the concrete and direct military advantage anticipated.188 Effective advance warning should be given of attacks which may affect the civilian population, unless circumstances do not permit this.189 Protocol I also prohibited attacks on non-defended localities, which must be declared and clearly marked. These areas must have no combatants, weapons systems, fixed military installations or establishments and no activities in support of military operations. In addition, Protocol I allowed for the creation of demilitarised zones, which are established by agreement of the belligerents and have the same rules for consideration as non-defended localities.190 If the zone becomes militarised, it may lose its protected status.191 Three years after the Additional Protocols were completed Protocol III to the Convention on Conventional Weapons was concluded. This instrument relates to Prohibitions or Restrictions on the Use of Incendiary Weapons. Work on this protocol began in the early 1970s when the United Nations General Assembly urged all states to refrain from the production, stockpiling and use of napalm. It called for the ICRC to transmit what information it had on these weapons to the Secretary General,192 and the following year, in 1975, they suggested that napalm and incendiary weapons be listed as a topic for consideration at the forthcoming Diplomatic Conference on International Humanitarian Law.193 The eventual result of this process was Protocol III to the 1980 Convention on Conventional Weapons. Under this agreement, the signatories ‘prohibited in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons’.194 It   Art 57.   Art 57(4). 187   Art 57(2)(a). See also Art 57(3) which stipulates that when a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that which may be expected to cause the least danger to civilian lives and objects. 188   Art 57(2)(b). 189   Art 57(2)(c). 190   Art 60, 60(3). 191   Art 60(7). 192   UNGA Res (1974) 3255 (XXIX), Napalm and Other Incendiary Weapons. 193   UNGA Res (1975) 3464 (XXX), Napalm and Other Incendiary Weapons. 194   Art 2(1). 185 186

42  Targets

was also ‘prohibited in all circumstances to make any military objective195 located within a concentration of civilians196 the object of attack by air-delivered incendiary weapons’.197 It was further prohibited to make any military objective located within a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians and all feasible precautions198 are taken with a view to limiting the incendiary effects to the military objective and to avoiding or minimising the incidental loss of civilian life or injury and damage to civilian objects.199 8. From

1980

to the New Century

Despite the relative progress with the Additional Protocol I to the Geneva Convention and Protocol III to the Convention on Conventional Weapons, it is debatable how much progress has been made in restraining the indiscriminate targeting of civilians in times of warfare. This problem became apparent as soon as the 1980s arrived. Indiscriminate bombing was an established practice of the Indonesian occupation of East Timor between 1975 and 1979.200 It was also notable in Latin America, such as when Anastasio Somoza (1925–80) used his air force in 1979 to bomb the poor suburbs in his own capital, Managua, killing thousands for supporting the Sandinista uprising.201 Nearby, indiscriminate bombardment by air and massive artillery attacks was given as a large part of the cause of the creation of around 500,000 displaced people in El Salvador.202 In the Middle East in 1981, following a two-week campaign of launching Katyusha rockets into Northern Israel, forcing thousands to flee, the Israeli air force was dispatched to bomb Beirut, where it killed 300 civilians (in addition to a number of insurgents) and injured a further 700, in the first run of attacks which went on for 10 weeks. The final death toll for civilians in this conflict was around 17,000 as the Israeli forces battled the insurgents amongst the infrastructure.203 Indiscriminate bombing from the air was also a feature of the Soviet-Afghanistan war. Sometimes this was deliberate, and other times, it was a result in the change of tactics. For example, in the first instance, following the death of a dozen Soviet advi195   ‘Military objective’ was defined to mean, so far as objects are concerned, any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. Art 1(3). 196   ‘Concentration of civilians’ was defined to mean any concentration of civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as in camps or columns of refugees or evacuees, or groups of nomads. See Art 1(2). 197   Art 2(2). 198   ‘Feasible precautions’ were defined as those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations. Art 1(4). 199   Art 2(3). 200   Commission for Reception, Truth and Reconciliation Timor-Leste (2005) Chega! (CRTP, Faber) 107– 12. 201   Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900–2001, Vol II (NYC, Brassey) 342. 202   Report of the United Nations Truth Commission on El Salvador, S/25500 (1 April 1993) 26–27, 32–33. 203  Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 185–90.

From 1980 to the New Century 43

sors and their families at the end of 1979, the Soviet air force was instructed to bomb Herat, where the death toll may have been as high as 20,000. By the mid 1980s, the indiscriminate bombing was due, in part, to the introduction of surface to air missiles which forced Soviet pilots to fly much higher to avoid being shot down. Moreover, the Mujhadeen deliberately mixed with the civilian populations and made little attempt to distinguish themselves from them; as such, the indiscriminate bombing of villages was not uncommon in areas where the insurgents were known to be operating. By the end of 1988, agricultural production had dropped by 50 per cent and livestock losses were, on average, over 50 per cent. As many as 5,000 of the nation’s 15,000 villages were destroyed or made unlivable. In addition, 70 per cent of the paved roads were destroyed.204 Exactly how many were killed in this way is a matter of speculation, but some estimates suggest ‘hundreds of thousands’.205 Unfortunately, when the Soviets left, the indiscriminate practices continued into their civil war for the coming decade, with all sides practising wildly inaccurate forms of targeting with, inter alia, rockets and scud missiles. In this regard, the 1993 fight for Kabul was extraordinary as artillery and missiles from multiple sides, aligned in a checkerboard of alliances, pounded the city and its inhabitants, killing about 10,000 civilians over the year, as part of a total of 40,000 civilian deaths in Kabul by 1996.206 With the Iran–Iraq War of 1980 to 1988, although both sides originally avoided targets of civilian and economic value in favour of attacks almost exclusively of milit­ ary importance, this soon degenerated and five, so-called, ‘wars of the cities’ erupted between 1983 and the end of the conflict.207 The first attack in 1983 involved five Iranian towns being hit by scud missiles. The scud missile is relatively inaccurate and possesses a less than 50 per cent chance of landing within one kilometre of its intended target. As such, large targets like cities are preferred as was evidenced by the 21 civilians who were killed in the first attack. By the end of the year, such attacks were claiming up to 900 casualties per week and were a cause of concern for the Security Council, who called for a ‘cessation of all military operations against civilian targets, including city and residential areas’.208 Despite a United Nations mediated agreement in early 1984, where both promised not to attack cities, the agreement broke down after Iraq bombed Iran’s unfinished nuclear power plant in Bushahr. The ‘war of the cities’ rapidly escalated, with both sides again firing scud missiles at each others’ population centres. Attacks in the middle of 1985 resulted in more than 1,450 deaths and 4,000 casualties in Iraq. In reply, consecutive attacks were launched against Iran’s population centres with housing blocks, not munitions factories, bearing the brunt. The Security Council continued to voice its concern, deploring ‘the escalation of the conflict, especially . . . the bombing of purely civilian population centers’.209 Nevertheless, the prac204   Feifer, G (2009) The Great Gamble, The Soviet War in Afghanistan (NYC, Harper) 102–104, 106–109, 127, 164–66; Human Rights Watch (1988) Violations of the Laws of War in Afghanistan By All Parties to the Conflict (NYC, HRW) 8–25. 205  Human Rights Watch (1991) The Forgotten War (NYC, HRW) 2; Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 368. 206   Filkins, D ( (2009) The Forever War (NYC, Vintage) 23; Coll, S (2005) Ghost Wars (London, Penguin) 262–63; Human Rights Watch (2001) Fuelling Afghanistan’s War (NYC, HRW) 5–7; Human Rights Watch (1991) The Forgotten War (NYC, HRW) 5. 207   Karsh, E (2002) The Iran-Iraq War (London, Osprey) 26, 29. 208   S/RES/ 540 (1983, Oct 31). 209   S/RES/ 582 (1986, Feb 24).

44  Targets

tice of indiscriminate targeting continued, with the last attacks in February 1988 seeing over 200 surface to surface missiles and numerous air raids targeting urban masses.210 The 1990s saw the use of indiscriminate air attack and ground bombardment in, inter alia, Burundi,211 Eastern Zaire,212 the Congo,213 Sudan,214 in the Georgia-South Ossetia conflict,215 the conflict between Armenia and Azerbaijan,216 within Yemen217 and during the so-called ‘First Chechen war’ which was a conflict between the Russian Federation and the Chechen Republic of Ichkeria from the end of 1994 until the middle of 1996. During the Russian attack on Grozny, somewhere between 25,000 and 50,000 non-combatants ended up dead.218 The 1990s also saw the first conflicts post-1977 which showed serious attempts to avoid indiscriminate damage; the 1991 Gulf War between the United Nations forces and Iraq, and the wars of the former Yugoslavia, including Kosovo, which involved forces from the United Nations and NATO. These conflicts were most notable because of the introduction of what was known as ‘zero casualty warfare’ or, at least, minimal civilian casualties. The backbone of this was laser-guided missiles which hit only the exact target. Smart bombs allow for precision accuracy in the engagement of a target so planes can fly less vulnerable attack profiles. Fewer sorties are required and logistical demands are reduced. They are also much more discerning and the civilian casualties are intended to be much lower than with conventional ‘dumb’ aerial bombardment. Of course, precision targeting is still dependent on accurate intelligence before releasing the weapon (and thus not hitting the Chinese embassy, Red Cross warehouses or wedding parties with precision weapons, as occurred in practice). Nevertheless, it is clear that a type of warfare is moving away from indiscriminate results of the poor targeting that occurred in the past.219 The technology for this evolved out of the Vietnam War, from which 26,690 smart weapons (less than 1 per cent of the total dropped) could claim a 48 per cent success rate for hitting their target, compared to 5.5 per cent for unguided bombs.220 By the time of first Gulf War in 1991 some 8.8 per

210   Karsh, E (2002) The Iran-Iraq War (London, Osprey) 41, 47, 57; Hiro, D (1991) The Longest War: The Iran-Iraq Military Conflict (London, Routledge) 91, 97, 102, 134–36; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 282, 302. 211  Human Rights Watch (1995) Proxy Targets: Civilian in the War in Burundi (NYC, HRW) 25–75, 96–105. 212  Human Rights Watch (1997) Attacked by All Sides: Civilians and the War in Eastern Zaire (NYC, HRW) 2–3, 18–20. 213  Human Rights Watch (1997) What Kabila is Hiding: Civilian Killing and Impunity in the Congo (NYC, HRW), section IV. 214  Human Rights Watch (1994) Civilian Devastation: Abuses By All Parties in the War in Southern Sudan (NYC, HRW) 29-35; Human Rights Watch (1993) War in South Sudan: The Civilian Toll (NYC, HRW) 2, 5, 6. 215  Human Rights Watch (1992) Violations of Humanitarian Law and Human Rights in the Georgia-South Ossetia Conflict (NYC, HRW) 3–4; Human Rights Watch (1992) Georgia/Abkhazia: Violations of the Laws of War (NYC, HRW) 11–12, 28–34. 216  Human Rights Watch (1993) Bloodshed in the Caucasus (NYC, HRW) 8–11. 217  Human Rights Watch (1994) Human Rights in Yemen During and After the 1994 War (NYC, HRW) 7–10. 218   Gilligan, E (2010) Terror in Chechnya (New Jersey, Princeton University Press) 45; Human Rights Watch (1995) Russia: Partisan War in Chechnya (NYC, HRW) 3, 9–18. 219  Rogers, A (2000) ‘Zero-Casualty Warfare’ IRRC 837, 165–81; Boot, M (2006) War Made New. Technology, Warfare and the Course of History (NYC, Gotham) 367. 220   Sample, I ‘US Gambles on a Smart War’ New Scientist (22 Mar 2003) 4–5; Boot, M (2006) War Made New. Technology, Warfare and the Course of History (NYC, Gotham) 327; Tucker, S (1998) The Encyclopaedia of the Vietnam War (Oxford, Oxford University Press) 44–45.

From 1980 to the New Century 45

cent of attacks (of the 88,000 tons of ordnance used) employed precision munitions.221 They were later used extensively in the Kosovo conflict, in which they were one third of the ordinance utilised.222 With the opening stages of the Afghanistan conflict, precision guided munitions represented 65 per cent of the total munitions used, and 90 per cent for the opening months of Operation Iraqi Freedom in 2003.223 The Smart Bombs of the forces engaged in these conflicts were in direct opposition to the Iraqi use of scud missiles against Israel and Saudi Arabia that were fired within 24 hours of the Coalition attack. Six missiles were released against cities in Israel, although they caused very few casualties. These missiles were very inaccurate and carried only small warheads. Of the 88 missiles launched overall, 40 were directed at Israel, as a result of which only two people were killed and 248 were wounded.224 At the time, the Americans considered these indiscriminate practices a possible war crime, but did not pursue the matter.225 Although the American led forces utilised precision guided weapons with an ever increasing frequency, at least 20 per cent of precision bombs dropped in the first Gulf War in 1991 did not hit their targets. That is, about 400 tons of bombs that were identified as ‘precision’ may have caused substantial collateral damage. Given that the total explosive damage fired by all of Iraq’s scud missiles was about 20 tons, it is possible to assume that many non-combatants may have died as a result. In addition, in 1991 and 2003 the American lead forces consistently targeted a number of ‘dual use targets’ such as roads, bridges, airports and, most notably, electrical power stations – the losses of which have with these have been linked to civilian suffering.226 The official Iraqi figure from such bombings was 2,300 civilian deaths as collateral damage.227 The American explanation of their approach to dual use targets in the 1991 conflict was unrepentant. Thus: In any modern society, many objects intended for civilian use may be used for military purposes. A bridge or a highway vital to daily community and business traffic can be equally crucial to military traffic, or support a nation’s war effort . . . Destruction of a bridge, airport or port facility, or interdiction of a highway can be . . . important in impeding an enemy’s war effort – the same is true with regard to major utilities [for example] microwave towers for everyday peacetime civilian communications can constitute a vital part of a military command and control system, while electric power grids can be used simultaneously for military and civilian purposes . . . When objects are used concurrently for civilian and milit­ ary purposes, they are liable to attack’.228 221   Marks, P ‘Recognising Friend From Foe’ New Scientist (5 Apr 2003) 4; Rogers, A (2000) ‘Zero-Casualty Warfare’. IRRC (837), 165–81; Bertell, R (2000) Planet Earth: The Latest Weapon of War (London, Women’s Press) 32. 222   Sample, I ‘US Gambles on a Smart War’ New Scientist (22 Mar 2003) 4–5. 223   Walker, M ‘Truth and Technology At War’ New Scientist (3 Jan 2004) 13; Schmitt, M (2005) ‘Precision Attack and International Humanitarian Law’ IRRC 87(859), 445, 453. 224  Bin, A (1998) Desert Storm. A Forgotten War (Westport, Prager) 101; Human Rights Watch (1991) Needless Deaths in the Gulf War (NYC, HRW) 18–21. 225   See Department of Defence Report to Congress on the Conduct of the Persian Gulf War, 31 ILM (1992) 612, 635. 226  Human Rights Watch (2003) Off Target: The Conduct of the War and Civilian Casualties in Iraq (NYC, HRW) 7, 15. 227  Bin, A (1998) Desert Storm. A Forgotten War (Westport, Prager) 111. 228   Department of Defence Report to Congress on the Conduct of the Persian Gulf War, 31 ILM (1992) 623.

46  Targets

Some of the civilian deaths in the 1991 conflict were controversial, such as with the attack on the Ameriyya Air Raid Shelter on 13 February 1991 in which 47 civilians died and a further 102 were wounded. Although it was known to be an air-raid shelter in the Iran–Iraq War, the United Nations forces took it to be a military command-andcontrol centre, due to its hardened exterior, the presence of troops, the location of camouflage paint, and a barbed wire perimeter. As such, the Americans took the view that the responsibility for the civilian deaths was that of the Iraqi authorities, who had attempted to use civilians to shield a legitimate object from attack. Nevertheless, in their subsequent conflict in Iraq, the Americans adopted the practice of using special aircraft to communicate, via radio transmissions with the Iraqi population at large and with Iraqi military, warnings about some forthcoming attacks, as an incentive for the civilians to leave the area. This was the antithesis of the approach of a number of the insurgents they have fought against, who have actively chosen civilians as the primary targets.229 Nevertheless, the use by the United States of phosphorus weapons in builtup areas in both 2003 and 2005 within Iraq has been an equal cause of concern.230 The American led coalition in Afghanistan, from the point of their invasion throughout the first decade of the twenty-first century, have adopted a similar approach to that taken in Iraq, attempting to minimise the numbers of civilians killed as collateral damage due to aerial bombardment. Nevertheless, deaths have still occurred. For example, in 2006, 116 Afghan civilians were killed as a result of 13 bombings. In 2007 the figure was 321 civilians, and in the first eight months of 2008, a further 119 civilians were killed by airstrikes. Further deaths occurred in 2009 when two stolen petrol tankers were hit, and around 40 civilians were killed as collateral damage (in addition to a possible equal number of insurgents).231 In most of these incidents the military conducted official investigations to see if the rules of engagement had been complied with, and in some instances, personnel were found to have failed to follow rules designed to prevent civilian casualties, such as reconfirming that the zone was free from civilians after circling. In another case, although militants were firing from a civilian compound, it should not have been hit, as the high density area was off limits. These rules, despite being breached on a number of occasions, have consistently confirmed the American concern about minimising civilian casualties. This concern extended to the late 1990s, when a number of options arose when Osama Bin Laden (1957–2011) could have been killed. However, these were not followed through because of concerns about the potentially disproportionate civilian casualties in the killing.232 Such efforts have been of such a standard that the Security Council recognised the: 229   Department of Defence Report to Congress on the Conduct of the Persian Gulf War, 31 ILM (1992) 612, 625; Human Rights Watch (1991) Needless Deaths in the Gulf War (NYC, HRW) 1–7; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 772; Human Rights Watch (2004) International Humanitarian Law Issues in a Potential War in Iraq (NYC, HRW) 7; Slim, K (2008) Killing Civilians (NYC, Columbia University Press) 145–46. 230   Independent ‘Pilots Confirm US Dropped Napalm in Baghdad Advance’ New Zealand Herald (11 Aug 2003); Buncombe, A ‘US Used Illegal Bombs On Iraqis’ New Zealand Herald (10 Nov 2005) B2; Reuters ‘US Confirms Phosphorous Bombs Used to Kill Enemy’ New Zealand Herald (17 Nov 2005) B1. 231  Human Rights Watch (2008) Airstrikes and Civilian Deaths in Afghanistan (NYC, HRW) 1, 7–12; Anon ‘A Deadly Airstrike Hits Home’ TIME (21 Sept 2009) 6; AP ‘Probe into Use of Chemical In Battle’ New Zealand Herald (12 May 2009) A10. 232   Coll, S (2005) Ghost Wars (London, Penguin) 422–27, 535–36; Schmitt, E ‘US Inquiry Faults Afghan Airstrikes’ Herald Tribune (3 June 2009) A1.

From 1980 to the New Century 47 [R]obust efforts taken by the International Security Force Assistance in Afghanistan to minimize the risk of civilian casualties, notably the continuous review of tactics and procedures and the conduct of after-action reviews in cooperation with the Afghan Government in cases where civilian casualties have been reported.233

United Nations and NATO forces were also directly critiqued for their bombing operations in both the former Yugoslavia and Kosovo. In both instances, these forces continued to target ‘dual use’ targets such as power stations, bridges and roads. With regards to Kosovo alone there were 90 separate incidents related to such operations which involved civilian deaths during the 78-day bombing campaign which killed an estimated 500 civilians.234 In both conflicts, investigations into such deaths as possible war crimes by the International Criminal Tribunal for the former Yugoslavia, which was given jurisdiction over violations of the laws or customs of war, including wanton destruction of cities, towns or villages not justified by military necessity (especially undefended areas),235 were discounted. This was because the targets selected were always military in nature and care was taken to consider the legal rules applicable.236 The approach of United Nations forces in the former Yugoslavia was unlike that practised by some of the primary belligerents where besieged areas with civilians within them were targeted by indiscriminate methods and then overrun by military forces with little regard to the laws of war. Due to such problems, in 1993 the Security Council created six so called ‘safe areas’ around Bihac, Gorazde, Sarajevo, Srebrenica, Tuzla and Zepa, and also considered Maglaj, before it was overrun by Bosnian Serb forces (who had not consented to such areas, which were neither fully disarmed in terms of the Muslim forces within them, nor fully defended by the United Nations forces surrounding them).237 The Council emphasised that the areas they designated ‘safe’ were to be defended by United Nations forces and free from armed attacks and from other hostile acts which endangered the well-being and the safety of the inhabitants. As such, the Bosnian Serb military was obliged to remove their military units ‘to a distance wherefrom they cease to constitute a menace to their security and that of the inhabitants to be monitored by UN military observers’.238 They were also to allow people to return to their homes in peace.239 However, the Bosnian Serbs attacked the safe areas of Sarajevo, Gorzade and, most notably, overran the safe area of Srebrenica, much to the anger of the Security Council as the grave violations of international humanitarian law quickly became known.240   S/RES/1776 (2007, Sept 19); S/RES/1806 (2008, Mar 20).  Human Rights Watch (2000) Civilian Deaths in the NATO Air Campaign (NYC, HRW) 2–3; Human Rights Watch (2004) International Humanitarian Law Issues in a Potential War in Iraq (NYC, HRW) 9. 235   See Art 2(d) of the Statute of the International Criminal Tribunal for the Former Yugoslavia; See also Art 3(b) and (c). 236  Burger, J (2000) ‘International Humanitarian Law and the Kosovo Crisis’ IRRC (837), 129–45. See also the ICTY Press Statement of December 30, 1999; Rowe, P (2000) ‘Kosovo 1999: The Air CampaignHave the Provisions of Additional Protocol 1 Withstood the Test?’ IRRC (837) 147–64; cf Del Ponte, C (2008) Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (NYC, Other Press) 59–61. 237   S/RES/819 (1993, Apr 16); S/RES/824 (1993, May 6); S/RES/36 (1993, May 6); S/RES/959 (1994, Nov 19); S/RES/908 (1994, Mar 31); S/RES/941 (1994, Sept 23); Finlan, A (2004) The Collapse of Yugoslavia 1991–1999 (London, Osprey) 48–49; Honig, J (1997) Srebrebuca: Record of a War Crime (London, Penguin) 99–117. 238   S/RES/824 (1993, May 6); S/RES/836 (1993, June 4). 239   S/RES/836 (1993, June 4); S/RES/998 (1995, June 16). 240   S/RES/1034 (1995, Dec 21); S/RES/1004 (1995, July 12); S/RES/1016 (1995, Sept 21); S/ RES/787 (1992, Nov 16); S/RES/802 (1993, Jan 25). 233 234

48  Targets

Before such safe areas were overrun, they were targeted via indiscriminate bombardments. In this regard, the most notorious example from this conflict came from the siege of Sarajevo which involved light and heavy artillery which was used to terrorise the civilian population with intentional attacks. Recordings at the trial of Radovan Karadzic (1945–) in 2009 had him saying at the time of the siege ‘Sarajevo will be a black caldron where 300,000 Muslims will die’.241 Among many horrors in 1992, three stood out. The first involved shells aimed at a maternity clinic and setting fire to it with 70 pregnant women and 173 babies inside. A second instance involved a mortar attack on a bread queue killing about 20 people and injuring 160. Soon afterwards, a busload of children was fired on, killing one three-year old and another child of 14 months. Finally, the funeral of the children involved in the second instance was the target of a mortar attack, as were a series of civilian markets. The eventual siege, which continued for 44 months, killed about 11,000 people, including 1,200 children.242 Major General Stanislav Galic (b 1943) who oversaw this siege of Sarajevo was subsequently prosecuted and found guilty at The Hague for violation of the laws of war for causing terror upon civilians, and murder and inhumane acts such as directly sniping and shelling civilians, in direct contravention of Article 51 of the 1977 Additional Protocol I.243 The other conflicts of note in this area during the 1990s involved Israel and its operations in Lebanon in 1993 and again in 1995. In these conflicts Israel, with its allied Lebanese groups, went to war with insurgents associated with Hezbollah and a number of related Palestinian factions. Both sides exhibited a disregard for the laws of war, lobbing shells and rockets at the civilian populations of the other.244 With the Operation Grapes of Wrath which followed in 1996 and further indiscriminate attacks against North Israel, Israeli Defence Forces were much clearer, warning the occupants of 40 villages and Tyre that if they did not leave the area within a set time period, they would be in grave danger, and would become, in essence, military targets. The 600 air raids and 25,000 shells that followed killed at least 154 civilians who chose to remain, but did little to weaken the will of Hezbollah who managed to launch some 639 crossborder rockets into Northern Israel before a ceasefire was agreed.245 After consultations between the United States, Israel, Lebanon and Syria, it was agreed that: 1. Armed groups in Lebanon will not carry out attacks by Katyusha rockets or by any kind of weapon into Israel. 2. Israel and those cooperating with it will not fire any kind of weapon at civilians or civilian targets in Lebanon. 3. Beyond this, the two parties commit to ensuring that under no circumstances will civilians be the target of attack and that civilian populated areas and industrial and electrical installations will not be used as launching grounds for attacks.   Soares, C ‘Karadzic Wiretaps’ New Zealand Herald (29 Oct 2009) A14.  Human Rights Watch (1994) Bosnia-Hercegovina: Sarajevo (NYC, HRW) 4–6; Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 127; Stephen, C (2004) Judgement Day. The Trial of Slobodan Milosevic (London, Atlantic) 69, 120. 243   Prosecutor v Galic 43 ILM (2004) 789. Note also the case of Dorde Dukic, who died before judgment could be reached, IT–96–20. And Dragomir Milosevic, IT–98–29/1. 244  Human Rights Watch (1996) Civilian Pawns: Laws of War Violations and the Use of Weapons on the IsraelLebanon Border (NYC, HRW). 245  Human Rights Watch (1997) Israel/Lebanon: Operation Grapes of Wrath (NYC, HRW) 16–19. 241 242

From 1980 to the New Century 49

At the end of the twentieth century the international community attempted to solidify this area with the creation of the International Criminal Court. The statute of the Court specified that it was a war crime, in grave breach of the 1949 Geneva Conventions, to direct attacks intentionally against civilians not taking direct part in hostilities or civilian objects which are not military objectives. It was a similar crime to launch an attack intentionally in the knowledge that such attack will cause incidental loss of life or injury to civilians that would clearly be excessive in relation to the concrete and direct overall military advantage anticipated. It was also deemed to be a war crime to attack or bombard, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.246 Intentionally directing attacks against civilians not taking a direct part in the hostilities was also recognised as war crime in both international and internal conflicts.247 The converse rule was also applied. Namely, it was also recognised as a war crime to utilise the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.248 The following year in 1999249 and then again in the year 2000 the Security Council repeatedly noted that: The deliberate targeting of civilian populations or other protected persons and the committing of systematic, flagrant and widespread violations of international humanitarian law and human rights law in situations of armed conflict may constitute a threat to international peace and security.250

At the same point, the Security Council indicated its willingness to consider the appropriateness and feasibility of: ‘Temporary security zones and safe corridors for the protection of civilians and the delivery of assistance in situations characterized by the threat of genocide, crimes against humanity and war crimes against the civilian population.’251 Despite these clear iterations by the Security Council, indiscriminate targeting continued to be a notable problem in the Second Chechen war (1999–2000) (by both the Russians and the Chechen insurgents), in which an estimated 6,500 to 10,000 civilians died in Grozny alone;252 and in the war in South Ossetia, between Georgia and Russia, in which both the Georgians and the Russians utilised indiscriminate and disproportionate force in their assaults surrounding civilian areas.253 The same problem has also repeated itself in the Congo254 and once more in the Sudan, although at this point the main belligerents both promised not to attack or target civilian objects in the war in the South. This followed the practice of the Sudanese air force rolling large bombs made in 200-litre petrol barrels out of the back of its transport planes onto villages in South

  International Criminal Court, Art 8.   International Criminal Court, Art 8(e). 248   International Criminal Court, Art 8 (xxiii). 249   S/RES/1265 (1999, Sept 17); S/RES/1296 (2000, Apr 19). 250   S/RES/1296 (2000, Apr 19); S/RES/1314 (2000, Aug 11). 251   S/RES/1296 (2000, Apr 19); Also, Oswald, B ‘The Creation and Control of Places of Protection During UN Peace Operations’ IRRC (2001) 83; (844) 1013–41. 252   Gilligan, E (2010) Terror in Chechnya (New Jersey, Princeton University Press) 31, 38–39, 45. 253  Human Rights Watch (2009) Up in Flames: Humanitarian Law Violations in the Conflict Over South Ossetia (NYC, HRW) 3–5, 20–50. 254  Human Rights Watch (2002) Attacks on Civilians in Ugandan Occupied Areas in Northeast Congo (NYC, HRW). 246 247

50  Targets

Sudan and Dafur.255 From such and similar practices, the International Criminal Court came to indict Ahmad Harun (1964–), the former minister of the Interior of the Government of Sudan, and Ali Muhammad Ali Abd-Al-Rahman (1943–), alleged leader of the Militia/Janjaweed.256 Likewise, Joseph Kony (1961–), Vincent Otti (1946–2007), Okot Odhiambo (1952–) and Dominic Ongwen (unknown date of birth), all leaders within the Lord’s Resistance Army,257 have been indicted for, inter alia, directing attacks against civilian populations. From the Congo, Germain Katanga (1978–) and Mathieu Ngudjolo Chui (1970–)258 face the same charges. Finally, and most notably, the conflicts involving Israel came to the fore with the 2006 Lebanon War against Hezbollah et al, and its 2009 conflict against Hamas et al in the Gaza Strip. Before these wars, Israel was the victim of an ongoing campaign of violence aimed against their citizens. For example, between the years 2000 and 2002 at least 350 civilians in Israeli were killed in over 128 attacks involving bomb and bullet by Palestinian armed groups or individuals. These methods were supplemented in the following years until the end of the decade by rocket attacks. Then, in 2006, after Hezbollah attacked, killed and kept the bodies of a handful of Israeli soldiers, Israel responded with massive airstrikes and artillery fire on targets in Lebanon that damaged Lebanese civilian infrastructure, including Beirut’s main airport. Israel also launched a ground invasion of southern Lebanon and engaged Hezbollah as the latter began to start launching rockets, once more, into northern Israel, killing 43 civilians and 12 soldiers. The civilians were killed when the rockets struck three different hospitals, a post office and an elementary school. The conflict killed at least 1,500 people, mostly Lebanese civilians, severely damaged Lebanese civil infrastructure and displaced approximately one million Lebanese and between 300,000 and 500,000 Israelis, although most of the latter were able to return to their homes. Both sides were, once more, accused of violating principles of distinction and either actively or recklessly targeting civilians.256 The run-up to the 2009 conflict in the Gaza Strip saw the indiscriminate use of rockets and artillery exchanges between the Israeli Defence Forces and Palestinian armed groups, of which Hamas was most notable. Indeed, between the middle of 2005 and the middle of 2007, almost 2,700 rockets were fired into Israel. A further 1,500 were fired in 2008. Although only 15 civilians died because of these rockets, at least 800,000 Israeli citizens were at risk.257 Accordingly, Israel launched Operation ‘Cast Iron’ at the very end of 2008. This 22-day offensive resulted in the deaths of at least 1,400 people. Whilst Israel contended that over two thirds of these people were combatants, others have suggested that at least two thirds of these people were noncombatants. Following the conflict, the President of the United Nations Human Rights Counsel established the United Nations Fact Finding Mission on the Gaza Conflict to investigate alleged violations of international humanitarian law. This Mission was headed by Justice Richard Goldstone (b 1938), former judge of the Constitutional 255   Slim, H (2008) Killing Civilians (NYC, Columbia University Press) 58. Also, Human Rights Watch (2002) Backgrounder to the Danforth Report (NYC, HRW). 256  Human Rights Watch (2007) Civilians Under Assault (NYC, HRW) 2–5, 8–14, 18–25; Human Rights Watch (2006) Fatal Strikes: Israel’s Indiscriminate Attacks Against Civilians in Lebanon (NYC, HRW) 3–10; Erlanger, S ‘The Use of Force: Ruthless or Required?’ New York Times (19 July 2006) A1. 257  Human Rights Watch (2009) Rockets From Gaza (NYC, HRW) 7–19, 34–38; Human Rights Watch (2007) Indiscriminate Fire (NYC, HRW) 3–8, 34–43, 56–71.

From 1980 to the New Century 51

Court of South Africa and former Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. The Goldstone Report concluded that the Israeli use of force had been excessive in a number of areas. In particular, although they had taken some precautions to warn the civilian populations, these warnings were not always adequate. The attacks on hospital facilities and ambulances, although possibly used by Palestinian armed groups, were excessive as no evidence could be found suggesting these had lost their neutrality. Indiscriminate attacks by Israeli forces resulting in the loss of life and injury to civilians were noted with regards to the firing of a mortar at a place where armed resistance was occurring, located next to a school housing more than 1,300 civilians (of which at least 11 were killed). This attack was supplemented by a series of 10 deliberate attacks against the civilian population, of which the facts indicated no justifiable military objective, including one instance when a number of civilians were shot whilst trying to move under the cover of a white flag. Finally, white phosphorus weapons were, in the words of the report, used in a ‘systematically reckless’ way in built up areas, causing wounds upon civilians of a sometimes untreatable nature.258 Neither the Israeli side nor the side of Hamas prosecuted any of their combatants for violations of the rules of war after the conflict.259

258   The Goldstone Report, A/HCR.12/48. The quote is from para 48. Also, Human Rights Watch (2009) White Flag Deaths: Killings of Palestinian Civilians During Operation Cast Lead (NYC, HRW) 3–10, 14–19, 23, 28; Human Rights Watch (2009) Rain of Fire: Israel’s Unlawful Use of White Phosphorous (NYC, HRW) 1–7, 23–34, 38–42; Anon ‘Israel Gives Gaza Force a Legal Shield’ Herald Tribune (26 Jan 2009) A4. 259  Human Rights Watch (2010) Turning a Blind Eye (NYC, HRW) 7–18, 34, 36–49.

II Starvation 1 .  The Beginnings of Siege, Blockade and Scorched Earth

I

n this history of warfare, starvation or dehydration of the enemy has been achieved by one of two methods. First, surrounded areas have been cut off from supplies of sustenance. Second, the areas which populations or unwelcome armed forces rely upon for sustenance have been actively targeted in what have become known as ‘scorched earth’ campaigns. The reasons for the destruction of the sustenance of nature range from the military, as in slowing up the opponent by denying them a subsistence base, through to punitive, with the intention to enforce direct economic and environmental penalties upon the dependent populations. The defensive value of such acts have, for thousands of years, been highly valued as a method to undermine armies which are expected to live off the enemy’s land. The ideal of such self-destructive acts was to prevent instances like that of the army of Egypt’s King Thutmose III (reigned 1479–1425 BCE) in northern Syria, whom after victory, found fruit on the trees, grain on the threshing floors and vats overflowing with wine. His men then celebrated their victory by toasting the defeated with overflowing cups of wine for making their conquest so easy and so pleasant in reward.1 The enemies of Thutmose III promised themselves never to make the same mistake again. A siege is a military blockade of a defended area with the intention of conquering by attrition or assault. The word ‘siege’ derives from sedere, Latin for ‘to sit’. A siege occurs when an attacker encounters a city or fortress that cannot be taken easily by storm or stealth, and refuses to surrender. Sieges involve surrounding the target and blocking the reinforcement or escape of troops or provision of supplies (a tactic known as ‘investment’), typically coupled with attempts to reduce the fortifications by various military means such as artillery. Sieges of a much larger scale, where the target is an area or even a country are known as blockades. A blockade is an effort to cut off the resources of a particular area by force. Although originally seen as blockades via the control of access to the sea, blockades have come to encompass controlling access by land and air as well. The factor that puts scorched earth, sieges and blockades into the same paragraph, is their shared utilisation of starvation as a method of war. Sieges can be traced, probably, to the point in history when humans first developed walled settlements to defend themselves. As discussed in the last chapter, the oldest fortifications in the world are those of Jericho near the Dead Sea erected around 7500 BCE. By 2500 BCE, the walls of Mesopotamian cities, such as Ur, measure 100 feet at the base and may have been 60 feet high. Although not impossible, it was remarkably hard to storm 1

  Strauss, B (2006) The Trojan War (NYC, Schuster) 42.

Beginnings 53

such areas if they were defended, as siegecraft was relatively undeveloped until about 500 BCE. As such, the only really effective method was to ‘starve them out’. The practice of ‘scorched earth’, whereby the physical resources which provided sustenance to opposing forces including the civilians of those being attacked are destroyed, is one of the oldest, and most consistent within military history pre-dating written records.2 Despite such practices, by the time written records appear, so too did the questioning of the destruction of the agricultural resources of the enemy. The first ever instance of this appears to have occurred in Mesopotamia, when the harvest of a besieged city was burnt. Little is known about this conflict, but it appears that this may have been viewed as a type of ‘foul’ according to the rules of the time, due to the overt damage to an already fragile subsistence base.3 Nevertheless, this questioning stood against the clear practices of the time. Indeed, the control and cutting off of water supplies was one of the first acts of recorded history at Sumer, around 2540 BCE.4 Sargon (2334–2279 BCE) recorded blocking the enemy canals and turning them into a ‘morass’.5 The campaigns of Pepi I (2332–2283 BCE) involved ‘hack[ing] up the land of the sand-dwellers’ and ‘cut[ting] down [their] figs and vines’.6 The Sumerian king Shulgi (2029–1982 BCE) went onto destroy his enemies’ fields of barley, leaving nothing but weeds growing, cutting down trees and uprooting palms and fig-gardens, whilst also taking all the livestock from the area.7 Sesostris II (1906–1887 BCE) ‘went forth to their wells, smote their bulls, reaped their grain and set fire thereto’.8 Thutmose III left very similar records, with the notable addition that he was the first to mention that he forced his enemies, including women and children, to surrender ‘because of famine’.9 However, he was not the first to use this method. Describing the situation in Ur while besieged by the Elamites around 2100 BCE, a poet said that ‘hunger contorts [people’s] faces, it twists their muscles’.10 The Assyrians followed suit, all leaving records of their environmental destruction of enemy food and water sources. Sargon II (reigned 722–705 BCE) left the most descriptive records in this area from this epoch. He boasted: Their crops, their stubble I burned, their filled up granaries I opened and let my army devour the unmeasured grain. Like swarming locusts I turned the beasts of my camp into the meadows, and they tore up the vegetation on which it [the city] depended, they devastated its plain . . . cut down its splendid orchards, I cut down great quantities of vines

2   Ferrill, A (1988) The Origins of War (London, Thames & Hudson) 146, 185; Keeley, L (1996) War Before Civilisation (Oxford, Oxford University Press) 75, 107. 3   Postgate, J (1996) Early Mesopotamia: Society and Economy and the Dawn of History (London, Routledge) 250. 4   Kramer, S (1963) The Sumerians. Their History, Culture and Character (Chicago, University of Chicago Press) 56–58. 5   Luckenbill D (1989) Ancient Records of Asssyria and Babylonia, Vol II (London, Histories and Mysteries) 85, 87, 90–91. 6   Pepi I in Breasted, J (ed) Ancient Records of Egypt, 1988 edn, Vol 1 (London, Histories and Mysteries) 143. 7   Saggs, H (1989) Civilisation Before Greece and Rome (New Haven, Yale University Press) 177. 8   Sesostris II in Breasted, J (ed) Ancient Records of Egypt, 1988 edn, Vol 1 (London, Histories and Mysteries) 296. 9   Thutmose III in Breasted J (ed) Ancient Records of Egypt, 1988 edn, Vol II (London, Histories and Mysteries) 188, 196; Dawson, D (2001) The First Armies (London, Cassell) 86. 10   Strauss, B (2006) The Trojan War (NYC, Schuster) 142–43; Cotterell, A (2005) Chariot. The Rise and Fall of the World’s First War Machine (London, Pimlico) 20.

54  Starvation . . . the great forests, which were as dense as great reed [marshes] – their trees I cut down, and laid waste its plain . . . All of their tree trunks I gathered into heaps and set on fire.11

The Bible was compiled at a time when such unrestrained methods of warfare were commonplace. With particular regard to siege warfare, it records when starvation fell upon the Israelites, such as with Sennacherib (704–681 BCE) the son of Sargon II, threatening Jerusalem specifically and warning the besieged that they would ‘die of hunger and thirst’12 if they did not submit. Of course, the besieged were not immune to using similar tactics to try to defeat their enemies, and accordingly there are a number of instances within the Bible where the control of fresh water is clearly linked to defeating enemies.13 Thus, when Sennacherib threatened Jerusalem, King Hezekiah: [C]onsulted with his officials and military staff about blocking off the water from the springs outside the city, and they helped him. A large force of men assembled, and they blocked all the springs and the stream that flowed through the land. ‘Why should the kings of Assyria come and find plenty of water?’ they said.14

When the Israelites were besieged again in 586 BCE, the besieged were taunted that if they did not submit they were doomed to ‘eat their own dung, and drink their own piss’.15 Against such practices, the Bible came to reflect contradictory approaches to such methods of warfare. On the one hand, instructions were given for when fighting some enemies to, inter alia, fell trees, block wells and ‘mar every good piece of land with stones’ in attempts to make the land of certain enemies unproductive. Exhortations to ‘cut down their groves’ can be found repeatedly.16 Conversely, the book of Deuteronomy proscribed, and later scholars like Maimonides (1137–1204)17 built upon the principle that: When you besiege a city for a long time, making war against it in order to take it, you shall not destroy its trees by wielding an axe against them; for you may eat of them but you shall not cut them down. Are the trees in the field men that they should be besieged by you? Only the trees which you know are not trees for food you may destroy and cut down that you may build siege works against the city that makes war with you, until it falls.18

The first recorded attempts of diverting the flow of water to achieve a military advantage occurred with the damming of the Euphrates around ancient Babylon about 539 BCE by the Persian Cyrus the Great (600–530 BCE). This made the water run so shallow into the city that Cyrus’s troops could enter the city from the near empty river banks which ran through the middle of it. The Persian Empire also utilised starvation by siege, with which they took Babylon in 539 BCE; and scorched earth as a method of intimidation, which they applied to Greece. In the latter example, following their invasion in 480 BCE they were notable for their burning of 12 towns and destroying 11   Luckenbill, D (ed) (1989) Ancient Records of Asssyria and Babylonia, Vols I and II (London, Histories and Mysteries) 99, 230, 243, 279 and 85, 87, 90–91. The quote is at 85. 12   2 Chronicles 32. 13   See 2 Kings 3:19 and 2 Chronicles 32:30. 14   2 Chronicles 32:3–4. 15   2 Kings 18:27. Also Kelle, B (2007) Ancient Israel at War (Oxford, Osprey) 57. 16   See Exodus 34: 11–16; Deuteronomy 7:5 and 2 Kings 3:19 and 3.25. Also, Saggs, H (1989) Civilisation Before Greece and Rome (New Haven, Yale University Press) 191. 17  His proposition was that following a successful siege, the victors were prohibited from destroying sources of food or fresh water. See Maimonides, The Guide of the Perplexed in trans, Robin, C, (1995). (Hackett Publishing, Indiana) 27, 38, 43–47. 18   Deuteronomy, 20:19–20.

Beginnings 55

their surrounding environments by ‘root[ing] up the grass from the earth [and] choke[ing] the wells and springs’.19 In theory, the Greeks of antiquity did not indulge in such practices. This can be asserted because of two considerations. First, it is believed that the Delphic Amphictyony, or the Great Amphictyonic League as it was called, was set up in about 1100 BCE and, consisting of all the Greek tribes that surrounded the oracle of Delphi, contained the Delphic oath which included a promise from all the national signatories not to, inter alia, ‘cut off [any city of the amphictyony] from running water whether in peace or war’. The latter reappeared with the Athenian Ephebic oath and the oath of Plataea, from the mid fourth century BCE, from which the signatories swore when fighting fellow Greeks, ‘I shall not overlook those who are oppressed by hunger and I shall not keep them from running water, whether they are friends or enemies!’.20 Second, pivotal Greeks like Plato (428–348 BCE) argued that methods of warfare involving ‘the devastation of Hellenic territory or the burning of houses’ should be permissible only when fighting non-Greeks.21 However, in practice, it appears that most Greek cities adopted against fellow Greeks the practices of slashing and burning, trampling, cutting down and setting fire to crops, trees and even forests, in addition to destroying agricultural machinery such as olive presses, and destroying farm houses. The Greeks were also familiar with the use of destroying water resources by poisoning, typically by disposing of bodies in them. This method was used in the first Sacred War around 590 BCE and was used again by the Athenians as a scorched earth policy to slow the advancing Persians. Likewise, during the Peloponnesian War, after the sack of Sybaris, the site was flooded to make it uninhabitable for the following two generations. With such precedents, by 350 BCE, the utilisation of water appears to have been recognised as a legitimate means of warfare, as was ‘destroying the crops’ and ‘rustling cattle and horses’, which were also archetypal acts of warfare to Homer, Herodotus (484–425 BCE) and Thucydides (460–395 BCE).22 In addition to the devastation of areas, cities were felled by starvation and/or lack of water, including, inter alia, Potidaea, Plataea, Athens and almost Syracuse. Syracuse did, however, fall to starvation and lack of water in 212 BCE. Alexander the Great (356–323 BCE) would come to master such practices, which were intrinsic to the Greek way of warfare.23 However, from Alexander’s conquests it became clear that such practices were not universal. For example, the Greek historian Megasthenes (350–290), who visited India soon after the conquest by Alexander noted:   The History of Herodotus, Vol II in trans, Rawlson, J (1909) (London, Dent) Book 7:247 and 8:32.   The Athenian Ephebic oath. Reprinted in Rhodes, P (ed) (2003) Greek Historical Inscriptions 404–323BC (Oxford, Oxford University Press) 443. Aeschines Against Timarchos in trans Fisher, N (2001) (Oxford, Oxford University Press) 2.115. 21  Plato The Republic in Jowett, B(ed) The Dialogues of Plato, 1931 edn, Vol III (Oxford, Oxford University Press) 166. 22  Homer The Iliad trans Rieu, EV (1993) (London, Penguin) 1.154–6; The History of Herodotus, Vol I in trans, Rawlson, J (1909) (London, Dent) 1:19, 4:119 and for Thucydides Thucydides The History of the Peloponnesian War: Revised Edition trans Warner, R (1999) (London, Penguin) 1.82.3, 1.96.1 and 5.14.13. Note also Kagan, D (2003) The Peloponnesian War (NYC, Harper) 52, 59, 76, 85, 284, 319–21; Mayor, A (2003) Greek Fire, Poison Arrows and Scorpion Bombs (London, Duckworth) 101, 105. 23   For general commentary in this area, see Van Wees, H (2009) Greek Warfare: Myths and Realities (London, Duckworth) 28, 122–23; Hansen, V (1983) Warfare and Agriculture in Classical Greece (Pisa) 33–35; Foxhall (1995) ‘Farming and Fighting in Ancient Greece’ in Rich, J and Shipley, G (eds) War and Society in the Greek World (London, Routledge) 134–45; Kagan, D (2003) The Peloponnesian War (NYC, Harper ) 284, 319–21. 19 20

56  Starvation Whereas among all nations at war, it is the custom to ravage the soil and reduce it to unciv­ ilised waste, among the Indians, among whom the husbandman is regarded as a class sacred and inviolable . . . the tillers of the soil are undisturbed by any sense of danger . . . they neither ravage the enemies’ town with fire, nor do they cut down trees.24

The Persians also, at times, refused to utilise practices of scorched earth for defensive purposes. This was most notable when Alexander invaded Persia, and the recommendations to destroy the natural resources of the areas that Alexander was going to advance over, were rejected. They were rejected because of concerns for their own, resident, Persian subjects who also would have been impacted upon by the destruction of the natural environment. Specifically, the governor or the area ‘would not consent to the destruction by fire of a single house belonging to any of his subjects’.25 By the time of the rise of Rome, the deprivation of food and/or water to an enemy as a method to achieve victory was a recognised and legitimate military strategy. Although the Senate occasionally decreed that certain fertile environments were to be protected so ‘the tillers of the land might have some dwelling place’26 and some scholars such as Philo (20 BCE–50 AD) questioned military practices whereby anger is ‘vent[ed] on inanimate things, which are themselves kindly, and bring forth fruit’,27 the practice of starvation or dehydration (but not via poisoning the water) by either siege or scorched earth was deeply entrenched. This policy known as ‘kicking them in the stomach’28 was later advocated by Vegetius (c 450 AD) who stipulated ‘[t]o distress the enemy more by famine than the sword is a mark of consummate skill’.29 With such logic, the Roman practice of environmental destruction of the enemy’s food supply can be seen from the relatively early years of the Roman Republic, dating back to the fourth century BCE. It was carried through with their wars with Carthage, which ended most spectacularly; whereby not only was the city destroyed but the site was ploughed over with salt, allegedly to render it infertile for future generations. The Romans took both Numantia in 134 BCE and Athens in 86 BCE by starvation before confronting scorched earth policies in Gaul as a method of both attack and defence. Vercingaetorix (82–46 BCE), in his attempt to deny supplies to the advancing Romans, burnt everything he could not bring with his forces into the walled towns. Julius Caesar (100–44 BCE) would adopt similar tactics with his conquest of Gaul by destroying the subsistence base of his enemies by the burning of their crops and food supplies. In some instances of siege, the Romans added to the misery of this type of approach, by not allowing those seeking to escape surrounded areas suffering from starvation to leave the city or area. Thus, with Alesia, which was besieged by Caesar in 52 BCE, some 80,000 soldiers and the local population were crowded inside the plateau competing for too little food. In this situation it was decided to expel the women and children from the enclosed area, hoping to save food for the fighters and that Caesar would   This quote is noted in Bentwich, N (1934) Philo-Judaeus of Alexandria (London, Hall) 183–84.  Noted in Ferrill, A (1988) The Origins of War (London, Thames & Hudson) 195. Also, Lendon, J (2005) Soldiers and Ghosts, A History of Battle in Classical Antiquity (NYC, Yale University Press) 118. 26  Livy The History of Rome Books XXVI.XVI.5–13, XXXIV trans, McDonald, A (1946) (London, Penguin). 27   Philo, noted in Grotius, H (1904) The Rights of War and Peace (London, Dunne) 325. 28  Livy The War with Hannibal in trans De Sekincourt (1972) (London, Penguin Classics) Book XXII (106). 29   Flavius Vegetius Renatus The Military Institutions of the Romans (Westport, Greenwood Press Westport, Greenwood Press) 111. 24 25

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open a breach to let them go. Vercingetorix appealed to Caesar to ‘have pity on the women and children’ but Caesar, who had earlier directed food supplies to be provided to these groups whilst they wandered through Gaul, replied ‘pity is a word I do not know’. Accordingly, the women and children were left to starve in the no man’s land between the city walls and the circumvallation. This was in full accordance with other practices of war which Caesar adopted, burning all the arable lands and food resources around hostile tribes.30 Jerusalem fell in 70 AD, in part, due to the siege that began with the destruction of all surrounding trees and the tight control of the food supply into the city, and allowing people to enter, but not leave the city. In years to come, when Hadrian (76–138) gave orders to crush a Jewish guerrilla uprising, rather than risk a frontal assault, he had them picked them off in small groups and deprived them of food by which he was able to control the problem. The Romans used the same tactics in Spain, where the uprising was finally put down not by open combat but by cutting the insurgents off from their water supplies and ‘by that invincible enemy, hunger’.31 These tactics were also to be utilised in the campaigns against Persia.32 Because the Barbarians who came to bring down Rome often lacked siege equipment, they were commonly of the view that it was ‘better to make peace with the city walls, and make war on farmers’.33 Accordingly, in addition to situations where cities were starved into submission, such as Byzantium in 197 (after a three-year siege) it was also common to see denuded landscapes and the removal or denial of drinkable water before set piece battles such as that of Adrianople in 378, or besieged cities such as, inter alia, Rome in 409, Naples in 544 and Pavia in 773, submit to the ravages of hunger and/or dehydration. In other instances, such as with the siege of Nisbis in 338, the Persians diverted a river, allowed it to build up, and then broke the dike, to smash the walls to pieces. The Persians were also masters of destroying all of the natural resources that may have been of benefit to their enemies when they were invaded and needed to retreat. Such practices, whereby the forces of nature were utilised for military purposes, continued in the centuries that followed. When Islamic forces ran into Spain, every year, after 753, the Christian territories which were not wholly conquered were devastated, crops burnt, fruit trees cut down, buildings razed, and livestock (and people) driven off. This approach was consistent with some of the early Muslim scholars, such as Abu Hanifa (699–765) who laid down the rule that everything the Jihadists could not bring under their control must be destroyed, including the houses, churches, trees, flocks and herds of the enemy.34 30   Caesar’s War Commentaries in trans Warrington, J (1955) (London, Dent) 14, 62–63, 70, 79, 152, 170; Goldsworthy, A (2003) The Fall of Carthage (London, Cassell) 78–79, 193, 227, 235; Goldsworthy, A (1998) The Roman Army at War 100 BC-AD 200 (Oxford, Oxford University Press) 98–99, 101–103; Elton, H (1997) Warfare in Roman Europe (Oxford, Oxford University Press) 54, 84, 223–24. For the starvation in Athens, see Appian, Mithridatic Wars in The Civil Wars trans Carter, J (1996) (London, Penguin) 38; Also, ‘Sulla’ in Plutarch Plutarch’s Lives trans Atlas, J (2001) (NYC, Random House) 14.10. 31  Appian The Wars In Spain, 1912 edn in trans White, H (London, Heinmann) 293; Plutarch’s Lives, Vol 2 In trans, Clough, C (Dent, Benediction Classics) 317. 32  Gwatkin, H (1957) The Cambridge Medieval History. The Christian Roman Empire, Vol I (Cambridge, Cambridge University Press,) 69. 33   Barbero, A (2005) The Day of the Barbarians (London, Atlantic) 37, 57. 34   Khadduri, M (1955) War and Peace in the Law of Islam (Baltimore, John Hopkins Press) 103, 106; Laing, J (2000) Warriors of the Dark Ages (London, Sutton) 13–14; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 98–99, 134, 218, 238, Gibbon, E The Decline and Fall of the Roman Empire, Vol 2 (London, Methuen, (1926) 242-243, 284; Griffith, P (1995) The Viking Art of War (London, Greenhill) 115–17; Seward,

58  Starvation

Unsurprisingly, these practices then pushed back into the Middle East, as the Crusaders and those defending the areas of interest in the Middle East both used the devastation of the environment and the onset of scarcity of food or lack of water as popular methods of warfare. It was by no means predetermined to be this way, as some of the earliest Islamic scholars, such as Abou Bekr (953–1059), had strongly disapproved of such tactics. Indeed, when he sent out bands of the faithful to avenge attacks which Syrians had made on their caravans, he directed them to, inter alia: ‘Injure not the date palms, neither burn them with fire, and cut not down any trees wherein is food for man or beast. Slay not flocks, herds or camels needful for sustenance.’35 Such calls were quickly forgotten as the Crusades gathered pace. For example, areas surrounding Antioch were stripped of food by the defenders as soon as the Crusaders started to appear. Soon after its capture, the general Muslim retreat saw the devastation of the surrounding countryside so that the Crusaders would not be able to find supplies en route. Thus, famine was not a problem with the early sieges of the First Crusade such as at Graus (1063) and Nicea (1097), but at Antioch (also 1097) famine fell upon the besiegers, killing both men and horses, with one in seven men dying of starvation and only 700 horses remaining before relief arrived. A similar situation occurred with the 1099 siege of Jerusalem, with the attackers, rather than the besieged, being closer to starvation and dehydration, since all of the food and fresh water sources outside of the walls had been destroyed in advance of the attack. The shortage of water was a key factor in forcing Tyre to surrender in 1124. The breaking of dikes in 1163 was a successful defensive mechanism as Crusader forces attempted to besiege Pelusium in Egypt, whilst in 1167, Cairo and its surrounding natural resources were voluntarily destroyed by the defenders before the Crusaders could enter it. This situation was not helped by the zealous nature of some of the Crusaders, who on their final marches towards Jerusalem ordered that all that they passed through, which had not been destroyed by the retreating Muslim armies, be burned as a symbol of the impossibility of retreat.36 Even the more practical Crusaders, such as Richard the Lionheart (1157–99), saw the destruction of enemies’ environmental resources as within the normal practice of warfare, as did his nemesis, Saladin (1138–93) who had used starvation through siege and scorched earth for both offence and defence. For example, in the first instance, the battle of Hattin in 1187, which ultimately sealed the fate of Jerusalem, was defined by the lack of water for the Christian forces. In a second instance, the great fortress of Kerak surrendered to Saladin in 1188, only after the last horse had been eaten. For a final example, Saladin had all the wells blocked up and all the harvests and fruit trees destroyed en route to Jerusalem, fearing Richard the Lionheart would march on the city. In 1221, with the fifth Crusade, the sluices were opened to keep the Crusaders at bay. His successors, when forced to fight the armies of Genghis Khan, were known to lay waste to all of their countryside to such an extent that, for six to eight kilometres in all directions, not only was all food and water either destroyed or moved, so too was every stone that could be used as ammunition for catapults. Such tactics rarely preD (1974) The Monks of War (Herts, Penguin) 139. 35  Reprinted in Toynbee, A.J (1927) ‘Islam and the League of Nations’ in The Muslim World, Vol 17 (London, Grotius Society Publication) 116–22. 36   Maalouf, A (2006) The Crusades Through Arab Eyes (Paris, Sagi) 6, 48, 65, 167–69.

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vented Khan from obtaining his goals, as he would either bring ammunition from elsewhere or find other methods, often involving the utilisation of the environment or the diversion of waterways, to break the defenders. Tamerlane (1336–1405) was a master of controlling food and water supplies to besieged areas, as were the Knights of Saint John who, when Malta was besieged, took to poisoning all of the water sources on the island outside of their fortresses.37 The practice of using starvation in situations of siege, including the option of refusal to allow ‘useless mouths’ to be ejected from defended areas, continued through the Middle Ages. The policy was deeply entrenched in this period because as the French chronicler and poet, William the Breton (1180–1225), observed ‘famine alone vanquishes the invincible and by itself can take cities’.38 Examples of using starvation and/or the destruction or control of fresh water sources as the principal methods of warfare of besieged areas from the twelfth to the seventeenth century, for both national and international conflicts, include, inter alia, England, Ireland, Italy, Spain, what became the Netherlands, and France. In the last instance alone, when Paris was besieged by Phillip II (1527–98) in 1590, some 13,000 people are believed to have starved to death.39 Starvation by siege was supplemented by the policies of scorched earth or, in the slightly more romantic way of saying it from the Middle Ages, chevauchee. This was despite the clear teachings and attempts of the Church to introduce some restraint in this area. This began in 989 when the Peace of God stipulated ‘[l]et no-one burn or destroy the dwellings of peasants and the clergy, the dove-cotes and the granaries . . . let not their ploughs, or their hoes or their olive fields be burned’.40 Following through, a few years later in 1016 at Verdun-sur-le-Doubs the nobility adhered to the 989 Peace, publicly agreeing not to raid the crops or take the animals of the peasants or the clerics.41 At the regional level, the 1054 Truce of God proclaimed that in times of conflict: Olive trees, which, we read, were used as a sign that peace had returned to the earth at the time of the flood, and from whose oil the holy chrism is made, shall be so strictly protected that no Christian shall dare to cut them down or injure them or seize their fruit.42 37   France, J (1999) Western Warfare In the Age of the Crusades (London, UCL Press) 10; Prestwich, M (1995) Armies and Warfare in the Middle Ages (New Haven, Yale University Press) 10–11; Runciman, S (1954) A History of the Crusades, Vols I, II and III (Cambridge, Cambridge University Press) 187, 279, 281, 283; at 22, 169, 367, 419, 457, 469; 68, 168, 423; Gravett, C (1990) Medieval Siege Warfare (London, Osprey ) 23; Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 62; Seward, D (1974) The Monks of War (Herts, Penguin) 95; Turnbull, S (2003) Genghis Khan and the Mongol Conquests (London, Osprey) 31, 108; Marozzi, J (2005) Turnbull, S (2003) Genghis Khan and the Mongol Conquests (London, Osprey) 14; Man, G (2004) Genghis Khan (London, Bantham) 132, 173; Marozzi, J Tamerlane: Sword of Islam, Conqueror of the World (London, Harper) 4, 331; Bradford, E (1962) The Great Siege (London, Reprint Society) 63. 38   Breton, noted in McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 149. 39  Rowdon, M (1974) The Spanish Terror (London, Constable) 293–94; Morillo, S (1994) Warfare Under the Anglo-Norman Kings (Suffolk, Boydell) 142; Gravett, C (1990) Medieval Siege Warfare (London, Osprey) 23; Melegari, V (1981) Great Military Sieges (London, Ferndale) 74, 76, 86. 40   ‘The Peace and Truce of God at the Council of Toulouges, 989’ in Herlihy, D (ed) (1970) The History of Feudalism (NYC, Harper ) 286–87. 41  Runciman, S (1954) A History of the Crusades, Vol 1 (Cambridge, Cambridge University Press) 85. 42   ‘The Truce of God’ 1054 in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 20. Note, other records suggest this prohibition was because of the economic value of these trees to some regions. See Gwatkin, H (ed) (1957) The Cambridge Medieval History. Germany and the Western Empire, Vol III (Cambridge, Cambridge University Press) 465.

60  Starvation

It would appear that most of the belligerents of this period of history were either not aware, or did not care, about trying to implement the spirit of the rules of 1054. ‘Laying waste’ to the economic and, most importantly, agricultural capacity of regions (including the destruction of forests in some instances, to deny cover for insurgents), allowing the impacts of the conflict to be felt by civilians and military alike, remained a preferred method of warfare. This was especially so when the margin between starvation and survival was often small and such actions could quickly decimate vulnerable communities. Within Britain, the practice was utilised by and against the Welsh, the Scottish and the Irish, as attempts to infect non-defended, but potentially sympathetic areas to the enemy with every sort of calamity were undertaken.43 The foremost example of this within Britain was probably when William the Conqueror (1027–87) carried out his infamous ‘harrying of the North’ in 1070 through which some eastern parts of the coast of England, around Yorkshire and Northumberland in particular, were scorched in anticipation of a possible Danish invasion. Records of his warfare in the North tell of ‘utterly laying waste to the shire’ as everything that was possible to eat or support human life was destroyed. It is said that in some places it took nearly a decade before cultivation could return. The resultant famine may have killed tens of thousands of innocent people in the process, but in doing so, not only did he deny his enemy sustenance, he also ensured there could be no physical support for any foreign invaders or domestic rebels against his new rule.44 Such practices were also standard in the civil and international wars in Europe. For example, between 1368 and 1369, in a war between Denmark and Norway over trading privileges, the Hanse sacked and burned Copenhagen and then starved Norway into submission by cutting off her grain supply, forcing Denmark to sue for peace. Scorched earth was also standard practice in the wars involving Italy, Germany and France.45 Elsewhere, during the Hundred Years War, Edward III (1312–77), despite his reputation for using policies of scorched earth selectively, could still boast of his destruction that ‘the country is clean laid waste, as of corn and other goods’. On the very day of his entry into France his chronicler recorded, Edward ‘[p]ut to flame the whole vicinity of Cambrai and for the whole succeeding week did not cease from burning everywhere those parts’.46 Soon after, Edward laid siege to Calais, which was reduced to extremity. They ate ‘toutes ordures par droit famine’ and resolved ‘to die honourably in their places, rather than to eat one another’.47 Starvation via siege was supplemented by the destruction of 43   Prestwich, M (1995) Armies and Warfare in the Middle Ages (New Haven, Yale University Press) 199; France, J (1999) Western Warfare in the Age of the Crusades 1000–1300 (London, UCL) 10–12; McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 210–16; Seward, D (2003) The Hundred Years War (London, Robinson) 27, 38, 58–59. 44   Wood, H (2008) The Battle of Hastings (London, Atlantic) 94–95, 116, 202; Morillo, S (1994) Warfare Under the Anglo-Norman Kings (Suffolk, Boydell) 98, 101; McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 203–206; Warner, P (2004) Sieges of the Middle Ages (Yorkshire, Pen and Sword) 56. 45   Tanner J (ed) (1957) The Cambridge Medieval History. Decline of Empire and Papacy, Vol VII (Cambridge, Cambridge University Press) 37–38, 115; Guilmartin, J (2002) Galleons and Galleys (London, Cassell) 24. 46  Chronicler of Edward in Cheyney, E (1962) The Dawn of a New Era 1250–1453 (NYC, Harper) 153. 47   This quote is from Tanner J (ed) (1957) The Cambridge Medieval History. Decline of Empire and Papacy, Vol VII (Cambridge, Cambridge University Press) 349.

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the sources of sustenance in the countryside. In the 1355 raid by Edward’s son, the Black Prince (1330–76), it was recorded that 11 cities, 3,700 villages and dozens of windmills, not to mention crops and vines, were all destroyed.48 Although the French would do the same against the English settlements in France, and cross-channel areas like Plymouth and Hastings, their acts were relatively small compared to those of the English. The English concluded this period with the actions of Henry V (1386–1422). Henry was also a master of using starvation in siege situations and destroying the sustenance base of populations in times of open warfare. With regards to siege, with the siege of Rouen in 1418–19, he refused to allow 12,000 women, children and old men to pass through his lines, and they had to live during the winter in the ditches on refuse and grass.49 Although Henry forbade any indiscriminate use of burning by his soldiers without permission, the cumulative result of his practices was that large sections of France ended up uncultivated, abandoned, squalid and empty of all people.50 Soon after, the French authorities would reply in kind, in attempting to create ‘economic warfare’ against their neighbours in times of conflict, attacking their crops and farmlands, the ships bringing in grains, and even foreign fishing vessels.51 Across the Atlantic in the coming century, the Conquistadors would use the destruction of the great aqueduct at Chapultepec, which thereby prevented all water from entering the Aztec metropolis of Tenochtitlan, as the key which let them win the battle and led directly to the downfall of an empire. This was clearly a learnt practice and one which was repeated many times over in the fourteenth and fifteenth centuries. For example, the dikes of the Po were broken by John Hawkwood (1320–94) against the forces of Charles IV (1316–78), flooding the fields that would have made a perfect battleground for German and Bohemian knights. Hawkwood did the same again in 1378. The dikes of the Aterno River were opened in 1424 to flood the countryside to prevent supplies from reaching the beleaguered city of L’Aquila. Sluice gates were opened in France in 1427 to sweep away English bridges. Dikes were broken at the battle of Hemmingstedt in 1500; and with the siege of Padua in 1509 an attempt to alter the course of the attached river to stop the supply of water into city was made. Altering the water flow of the Ticino helped secure the defence of Pavia in 1525 and 41 years later, Szigetvar (near Budapest) was successfully attacked after the waters of the Drava were diverted, allowing the swampy ground in front of the fortress to be drained and the moat weakened, thus allowing for full assaults.52

48   Barber, R (ed) The Life and Campaigns of the Black Prince: From Contemporary Accounts (London, Folio) 15–18, 21, 25, 28–29, 50, 53, 55, 62, 64, 65, 69, 93; Seward, D (2003) The Hundred Years War (London, Robinson) 84–85, 114. 49   Seward, D (2003) The Hundred Years War (London, Robinson) 161. 50   Meron, T (1993) Henry’s Wars and Shakespeare’s Laws (Oxford, Oxford University Press) 117–19, 147– 48, 150; Seward, D (2003) The Hundred Years War (London, Robinson) 109, 112, 177; Rogers, C (2002) ‘By Fire and Sword’ in Grimsley, M (ed) Civilians in the Path of War (NY, University of Nebraska) 33–35, 57; Tanner J (ed) The Cambridge Medieval History. Decline of Empire and Papacy, Vol VII (Cambridge, Cambridge University Press, 1957) 389–93. 51   Potter, G (ed) (1969) The New Cambridge Modern History. The Renaissance, Vol 1 (Cambridge, Cambridge University Press) 228. 52   Urban, W (2006) Medieval Mercenaries (London, Greenhill) 239, 243 and 266; Melegari, V (1981) Great Military Sieges (London, Ferndale) 80, 93, 94, 108, 110, 112, 114, 122, 126, 128, 140 and 141; Seward, D (1974) The Monks of War (Herts, Penguin) 185–88; Madaule, J (1967) The Albigensian Crusade (London, Burns) 89; Seward, D (2003) The Hundred Years War (London, Robinson) 208.

62  Starvation

Such practices of using or denying natural resources to the enemy were practices which Machiavelli (1469–1527) would come to recommend, as ‘it is better to conqueror an enemy with famine than iron’.53 The generalissimo of the Austrian armies, Riamondo De Montecuccoli (1608–81) would tell his troops that in order to be ‘master of the countryside’ they had to ‘[c]ut off [enemy] food supplies . . . burn his camp and munitions, lay waste to the countryside around the towns, pull down windmills, pollute the water’.54 This approach was despite pleas from some of the international law scholars of the time, such as Francisco de Vitoria (1492–1546) who argued that in time of occupation ‘enemy land should not be despoiled if possible’.55 Thomas More (1478–1535) broadly concurred with this approach of restraint of ‘trampling of the fields’ and burning of crops of unarmed civilians of opposing forces.56 Such teachings may have been influential on some of the belligerents of the time. Two examples can be proffered for this assertion. First, Phillip II of Spain (1527–98) stood against the option of scorched earth in attempting to control the rebellion in the Spanish Netherlands. Specifically, in 1574 Phillip rejected the advice of his commanders who were keen to point out recent precedents of the manipulation of water sources to achieve victory, to inundate the rebel provinces systematically by breaking the dikes and opening the sluices. The oppor­tunity was perfect given that Zeeland and most of Holland were below sea level. Furthermore, the rebels themselves had broken dams to blockade Spanish garrisons or impede their progress. That is, William of Orange (William the Silent) (1533–1584) had earlier ordered that the sea dikes be opened to flood the land around Alkmaar, rather than give up the town to the Spanish. On this occasion, the Spaniards lifted their siege before the land was totally drowned. Yet Orange’s desperation did not abate, and three years later, when the war seemed all but lost, he unveiled a scheme to flood the entire country and embark the population aboard ship in an attempt at transoceanic migration. The political situation improved, and the plan was never carried out. However, when faced with the same equation when the tables in the war turned, Phillip II forbade the operation on the grounds that it would destroy the province ‘forever’ and it would give the Spanish ‘a reputation for cruelty which would be better avoided’.57 The second example comes from Albrecht von Wallenstein (1583–1634) who, whilst going into the Thirty Years War, attempted to lessen the burden troops put upon occupants by restricting what requisitions could be taken from local communities. Requisitions are the authorised taking of goods and/or materials by occupying armed forces, and Wallenstein was unique in that he wanted to prevent his troops ‘living off the land’ of others, and thereby decimating it and the people it supported. In this way, the first steps to controlling the requisitions by troops in occupied territories were implemented.58   Machiavelli, N (1560) The Art of War (1990) (Connecticut, Eastern Press) 215, 223.   Montecuccoli in Chaliand, G (ed) (1994) The Art of War in World History (California, University of California Press). 55  Vitoria De Jure Belli Nos 52 and 68 in Pagden, A (ed) Vitoria: Political Writings (Cambridge, Cambridge University Press). 56   More, T in Logan, G (1975 edn) Utopia (Cambridge University Press, Cambridge) 217. 57   Parker, G (2002) Empire, War and Faith in Early Modern Europe (London, Penguin) 153. 58   Wallenstein’s contribution is reprinted in Reddaway, F (ed) (1930) Select Documents in European History, 53 54

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Despite such steps of progress, these developments need to be kept in perspective, and it should be recognised that such enlightened views were isolated. As such, when the full weight of the Thirty Years War saw the combination of ever-larger and unfed armies descending into foreign lands, overlaid with the practices of scorched earth for both defensive and offensive reasons being justified, the results for the locals were catastrophic. For example, although accurate estimates of the extent of ruin in Germany between 1618 and 1648 are difficult to obtain, probably, somewhere between one third and one half of the civilian population perished, in addition to an estimated 1,976 castles, 1,629 towns and 18,310 villages, as the land was stripped of all forms of sustenance.59 Although Hugo Grotius (1583–1645) would come to question the wisdom of destroying the natural environment when it was not necessary (akin to ‘brutal rage and madness [which] bespeaks a total disregard to the laws and ties of our common humanity’) he nevertheless conceded that in some situations, such as breaking a prolonged siege, starvation was a permissible method of warfare.60 The debate, as Charles I (1600–49) would find out as his trial, would turn on when such acts were necessary. That is, Charles lost his head for, inter alia, wrongfully ordering the starvation of the town of Hull and the unnecessary spoiling and desolation of parts of England during the English Civil War.61 The principle of controlling requisitions, as advanced by Wallenstein (above) were coming into vogue in this period, and clear attempts at restraint were made in a number of conflicts in the seventeenth and eighteenth centuries for both humanitarian and military reasons. That is, as Maurice De Saxe (1696–1750) recognised, an army which is supplied from its own magazines and is not reliant on the provision found in other countries is much more effective than one which is not. This was because magazines of supplies did away with the necessity of collecting food and provender before the beginning of each campaign and so made it easier for war to start earlier, and be much quicker in application. It also helped keep invading forces together, lessening the risks of scavenging soldiers deserting. It was also, of course, of great relief to the local communities that had previously been quartered upon.62 The humanitarian reasons were obvious in this region when French and Spanish delegates met in 1678 with the objective of making warfare less onerous on civilian populations. Although no formal document was concluded, they agreed that the total contributions levied from an area should not exceed the peacetime levy set for taxation for a given year (from before the conflict started). Should a region not be able to pay this sum, they were not to be burned. Rather, there was to be an orderly exchange of hostages, who would be returned once the sum had been paid. Soon after, bilateral agreements started to appear stipulating what could be fairly claimed by occupying forces,63 and by 1697, Vol II (London, Methuen) 1492–1715, 123. 59   The figures for the Thirty Years War are reprinted in Reddaway, F (ed) (1930) Select Documents in European History, Vol II (London, Methuen) 1492–1715, 129. See also, Anderson, M (1998) War and Society in Europe of the Old Regime (London, Sutton) 43, 67, 137i; Macartney, C (ed) (1970) The Habsburg and Hohenzollern Dynasties (NYC, Harper) 15. 60   Grotius, H (1904) The Rights of War and Peace (London, Dunne) 293, 365–68. 61  Robertson, J (2006) The Tyrannicide Brief (London, Vintage) 149, 174. 62  Bromley, J (1970) The New Cambridge Modern History. The Rise of Great Britain and Russia, Vol VI (Cambridge, Cambridge University Press) 230, 744–45. 63   See the works of Saxe in Symcox, G (1974) War, Diplomacy and Imperialism (NYC, Walker ) 181; Also, Lynn, J (2002) The French Wars 1667–1714 (London, Osprey) 81–82; Childs, J (2001) Warfare in the Seventeenth

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peace treaties such as that of the 1697 Treaty of Ryswick specifically agreed that some of the mechanisms that caused problems in this area had to end. Thus: ‘Contributions settled or demanded on either side, reprisals, demands of Forage, Corn, Wood, Cattle, utensils and other impositions on the countries of either of the two sovereign shall cease.’64 In other instances, such as with the Bill of Rights of the United States following their war of independence from the United Kingdom, their third right granted to citizens was: ‘No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner prescribed by law’.65 Such early precedents, although clearly starting to slow the impact of the military on civilian population, had limited impact on the warfare of the period as some of the core practices continued largely unabated. Scorched earth continued to be used in war, and especially for conflicts of a defensive nature. This approach was in complete accord with the teachings of Charles De Folard (1669–1752), who was one of the outstanding military theoreticians of the period. He advised generals when engaged in a defensive war: You may also be thinking of cutting off the enemy’s water, if possible . . . and especially forage, victuals and livestock; after that, you lay waste the length and bredth of the countryside, particularly the places where the enemy intends to go . . . deprive him of all means of subsistence . . . there is no better method to destroy an army without risking anything; it is the way of great captains.66

The implementation of such practices was clearly evident with the Dutch War (1672– 78) where the French laid waste to large parts of the Dutch Netherlands. Soon after, in 1688–89, the forces of Louis XIV (1638–1715) in the Palatinate aimed not only at destroying civilians, but also all their livestock, cultivated fields and farms. This was done as a method to allow the releasing of French troops in certain occupied areas, without creating the risk that the enemy would benefit from the evacuated areas. As such, before the troops were removed, an attempt was made to create ‘a dead zone’, that would not be difficult to cross or exist within. Accordingly, they began the systematic devastation of the Palatinate and the neighbouring districts, burning towns and villages and destroying all stores that could not be removed. Churches were not spared. Heidelberg and the three ecclesiastical capitals – Trier, Worms and Speyer – were all destroyed. The Austrians replied in kind, destroying everything (except the churches).67 Peter the Great of Russia (1672–1725) would adopt very similar policies, creating vast ‘dead zones’ to prevent his multiple enemies from gaining footholds in his country. His adoption of this policy in 1708–09 in the Great Northern War, was Century (London, Cassell) 161.   Treaty of Ryswick 1697, Art XVII.   The Bill of Rights, in Birley, R (ed) (1944) Speeches and Documents in American History, Vol I (Oxford, Oxford University Press) 1776–1815, 171. 66   Folard in Chaliand, G (ed) (1994) The Art of War in World History (California, University of California Press) 573, 574. 67  Ranum, P (ed) (1972) The Century of Louis XIV (NYC, Harper) 272–78; Lynn, J (2002) The French Wars 1667–1714 (London, Osprey) 30, 44, 57, 80–81; Childs, J (2001) Warfare in the Seventeenth Century (London, Cassell) 170–71, 181–82; Anderson, M (1998) War and Society in Europe of the Old Regime (London, Sutton) 138; Bromley, J (1970) The New Cambridge Modern History. The Rise of Great Britain and Russia, Vol VI (Cambridge, Cambridge University Press ) 233, 245. 64 65

The Enlightenment to the 20th Century 65

one of the first instances in which Russia would learn how to enervate the foreign Swedish army. In doing so, the Russians denied the invading forces subsistence, by systematically destroying crops and farms, not only on Lithuanian and Polish soil, but in Muscovy itself.68 The eighteenth century followed suit, with the notable addition of the practice of colonial authorities scorching the villages and food sources of dissident indigenous groups within the mushrooming European colonies. However, although these groups did not utilise methods of warfare that created starvation, they often adopted methods that involved the poisoning of water supplies. For example, in 1710, more than 1,000 French soldiers were weakened by illness after the Iroquois deliberately polluted their water with flayed animal skins.69 Such use of poison to destroy water supplies was frowned upon by the legal scholarship of the time, such as that by Emmerich de Vattel (1714–67), although the diversion of water supplies by less sneaky ways was deemed permissible. Similarly, ‘laying to waste of a country and destruction of food and provender’ was not recognised as a prohibited form of warfare, but Vattel did caution it should ‘only be used with moderation and only when necessary’.70 The difficulty was that most of the primary belligerents in this area had a liberal view of when such acts were necessary. This was repeatedly evident in the Seven Years War in attempts to weaken enemies. For example, when James Wolfe (1727–59) besieged Quebec, as part of his preliminary work he had over 20 small parishes burnt to the ground.71 Such practices spilled over into the American War of Independence, and although instances of scorched earth were not well recorded, the use of famine for siege purposes, such as the one that was forced upon the 4,000 civilians and British soldiers entrapped within Boston in 1775, was clear.72 2.  From The Enlightenment to the Twentieth Century

The beginning of the nineteenth century saw the controlling of food continuing as a primary method of warfare. Such a policy was, according to Carl von Clausewitz (1780– 1831), one of the primary ways to waste an enemy force . . . by ‘wearing out’ the enemy through a ‘gradual exhaustion of the physical powers and of the will by the long continuance of exertion’.73 In this regard, both the French Revolution and the Napoleonic period were notable, not so much for the use of starvation via sieges (with 68   Black, J (1994) European Warfare 1600–1815 (New Haven, Yale University Press) 123; Anderson, M (1998) War and Society in Europe of the Old Regime (London, Sutton) 45; Black, J (1999) Warfare in the Eighteenth Century (London, Cassell) 66–67, 85; Bromley, J (1970) The New Cambridge Modern History. The Rise of Great Britain and Russia, Vol VI (Cambridge, Cambridge University Press) 665–66, 754, 785. 69   Selesky, H (1990) War and Society in Colonial Connecticut (New Haven, Yale University Press) 3–11; Black, J (1994) European Warfare 1600–1815 (New Haven, Yale University Press) 17; Mayor, A (2003) Greek Fire, Poison Arrows and Scorpion Bombs (London, Duckworth) 107; Geissler, E (1999) Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945 (Oxford, Oxford University Press/Stockholm International Peace Research Institute) 27–28. 70   Vattel, E (1983) The Law of Nations or the Principles of Natural Law, Vol II (Oxford, Clarendon Press, Oxford Classics of International Law) 291, 292–93. 71   Fowler, W (2005) Empires at War (NYC, Walker) 171, 199–200, 218, 230–31 and 249. See also Luvaas, J (1999) Frederick the Great on the Art of War (NYC, De Capo) 17. 72   McCullough, D (2005) 1776. America and Britain at War (London, Penguin) 74. 73   Clausewitz, C On War, 1997 edn (London, Wordsworth) 30–31, 268–69.

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which Napoleon killed 7,000 in Mantua and 15,000 in Genoa) but for the use of scorched earth. In particular, scorched earth policies were directly applied by the French forces to rebels in both France and Spain. This was despite the warnings of those within the French administration such as Gerard de Rayneval (1729–90) who argued: It is sure to exasperate the enemy; it makes him thirst for revenge, and leads him to make reprisals if he gets onto your own territory. Therefore, only the most extreme necessity can make a general take upon himself the responsibility for ordering it.74

Nevertheless, without any pretence of restraint, the practice of scorched earth was adopted during the Revolution as a way of dealing with defiant communities who refused to accept the new administration, with the forests they hid in and the food sources they ate both being targeted. Napoleon I (1769–1821) utilised similar scorched earth processes in dealing with his guerrilla wars in Spain and Calabria, by which strict food supplies were adopted to try to prevent the insurgencies gaining access to food. However, the numbers who died from scorched earth policies in Spain were relatively small compared to what Napoleon lost with his invasion of Russia, when the retreating Russians burned everything behind them, depriving Napoleon’s army of practically all food and physical comfort before arriving on an already torched Moscow. This practice, combined with the Russian winter, poor planning – despite Napoleon’s goal to have good magazines to allow his army to keep moving without having to rely on food taken from occupied countries with all of the military and humanitarian difficulties this created – and continual skirmishing, meant that by the time Napoleon left Russia, his force of 449,000 troops had been whittled to 60,000.75 Although not as dramatic in terms of numbers of military deaths, the devastation by the Duke of Wellington (1769–1852) of as much of the territory of Portugal in front of his defensive perimeter of Torres Vedras as the Portuguese would permit, was equally destructive in terms of civilian deaths. That is, historians suggest that up to 50,000 civilians who did not retreat with Wellington’s forces may have died as a result of his tactic of agricultural destruction.76 Where the Napoleonic Wars were unique in regard to the question of the use of food as a weapon was with the practice of blockades by sea forces, because it was at this point that food became considered an item of contraband. It took over 150 years to arrive at this point. That is, after the Peace of Westphalia, it was common for commercial treaties within Europe to have a standard provision on blockade, listing free and non-contraband goods permitted for trade with enemy ports, except to those cities or places under siege of blockade. Thus, nations recognised blockade as a special circumstance in which all trade could be stopped. Early blockades such as those of the Anglo-Dutch war of 1652 to 1654 were designed to hurt the opposition economically. Later blockades, such as those applied by the British during the Seven Years War, were largely designed to keep the French from moving their troops around and reinforcing  Rayneval, noted in Best, G (1980) Humanity in Warfare (London, Weidenfeld) 66.   Griffith, P (1998) The Art of War of Revolutionary France: 1789–1902 (London, Greenhill) 54, 57; Luvaas, J (1999) Napoleon on the Art of War (NYC, Free Press) 116–17; Zamoyski, A (2004) 1812: Napoleon’s Fatal March on Moscow (London, HarperCollins) 161–63; Rothenberg, G (2000) The Napoleonic Wars (London, Cassell) 160. 76   Beckett, I (2001) Modern Insurgencies and Counter Insurgencies (London, Routledge ) 26–27; Webster, D (1998), Ellis, J (1995) From the Barrel of a Gun: A History of Guerrilla Warfare (London, Greenhill) 72; Best, G (1980) Humanity in Warfare (London, Weidenfeld) 206; Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 39, 557. 74 75

The Enlightenment to the 20th Century 67

their besieged areas. At this point it was accepted practice that any of the enemies’ merchant vessels which were caught could be stopped and seized, as could vessels from neutral countries if they were carrying ‘contraband’ which would support the war effort of the enemy. However, exactly what was contraband was always a source of heated debate. With Jay’s Treaty of 1794 for the Amity, Commerce and Navigation Between the United States and Great Britain, it was agreed that: In order to regulate what is in future to be esteemed contraband of war, it is agreed that under the said denomination shall be comprised all arms and implements serving for the purposes of war, by land or sea, such as cannon, muskets, mortars, petards, bombs, grenades, carcasses, saucisses, carriages for cannon, musket-rests, bandoliers, gunpowder, match, saltpetre, ball, pikes, swords, headpieces, cuirasses, halberts, lances, javelins, horsefurniture, holsters, belts, and generally all other implements of war, as also timber for shipbuilding, tar or rozin, copper in sheets, sails, hemp, and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted, and all the above articles are hereby declared to be just objects of confiscation whenever they are attempted to be carried to an enemy.

It was added that ‘Whereas the difficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise,’ that compensation be paid for ‘any such articles so becoming contraband, according to the existing laws of nations’.77 The difficulty of the ‘precise cases’ referred to was linked to the fact that the British came to take an increasingly broad view of what could be considered contraband. In particular, between 1750 and 1800, Britain came to argue that food could be contraband. This was an important distinction, as whilst most European countries were trying to shorten the list of contraband articles, the British were trying to widen it to include foodstuffs. This approach became most apparent during the French revolutionary wars in 1793 when the British (and the Russians) agreed not only to stop completely their own exports of foodstuffs to France, but also that of neutrals as well.78 Napoleon followed suit with his ‘Continental System’ by which he sought to stop the United Kingdom getting grain from Europe and exporting to the continent all of her goods and services. This system was entrenched with the Berlin Decree in 180679 and the Milan Decree of 180780 which created, in essence, a nationwide embargo allowing all vessels going to or coming from England to be targeted as lawful prize. Although food imports in Britain dropped, and the price of staple foods rose, there was never starvation as a result. Moreover, it appears that when Napoleon really had a chance to drive Britain into civil unrest due to food shortages in 1808–09 when the harvests failed, he actually sold them one and a half million quarters of wheat – but at high prices. What Napoleon’s Continental Blockade did achieve was to start nations thinking more clearly about what should, or should not be, considered contraband and able to be blocked from going into a country. Whilst there was never any dispute that ‘absolute   Art XVIII.   Best, G (1980) Humanity in Warfare (London, Weidenfeld ) 70, 99; Ireland, B (2002) War at Sea: 1914–45 (London, Cassell) 76; Lambert, A (2002) War at Sea in the Age of Sail (London, Cassell) 60–61; Marston, D (2001) The Seven Years’ War (London, Osprey) 30. 79   Art IV. 80   Art 3. 77 78

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contraband’ (such as weapons and ammunition) could be stopped, the key protagonists, namely the United States and the United Kingdom, took differing views. The Americans favoured a narrow definition, restricted to war material. The British favoured a wider definition, which could include food, naval stores, and even money. However, when it came to the Crimean War, the British adopted a more relaxed approach, largely due to the impossibility of a full blockade against Russia. Nevertheless, their blockade covered a long list of items such as iron, chemicals, coal and machinery and these restrictions appear to have had an impact on arms production in Russia. Following this conflict, the 1856 Declaration on Maritime Law which accompanied the Peace Treaty for the Crimean War, whilst continuing to allow blockades, was clear that they could only apply to ‘contraband of war’, although it failed to define what such contraband was.81 In one of the most remarkable developments of the nineteenth century, following the Texas War of Independence, the 1848 Treaty of Guadalupe Hidalgo between the United States and Mexico made two large steps towards civilising this area of warfare. First, it was agreed that if warfare ever broke out between them again, both sides would forbid the taking of requisitions from civilians without paying an equitable sum. Second, in times of such conflict, the houses, goods, cattle or fields of each other’s civilians would not be destroyed.82 Although the United States agreed to such restraints with its neighbours, it had difficulty with similar sentiments within its own borders, as was clearly evidenced with the American Civil War. Although this conflict saw only a few specific attempts at creating starvation, such as when Fort Jackson was forced to surrender, most of the time food and the practice of scorched earth were used in a somewhat larger way by the forces of Union. This is not to suggest that the Confederates were innocent in this regard, as records show that whilst in retreat, they were known to drive animals into fresh water sources, shoot them and leave them to rot. Conversely, the Union forces adopted a more industrial version of scorched earth as General William Sherman (1820–91) marched 62,000 troops on a 250-mile march, across a 60-mile wide front, through unoccupied enemy territory. In doing so, although his troops were meant to leave some provisions for the locals, they were authorised by Abraham Lincoln (1809–65) to ‘live off the land’ from which ‘all villages and neighborhoods through which they pass will be laid under contribution’.83 The requisitions were supplemented by a policy of the destruction of large amounts of private and public property in an attempt to ‘make Georgia howl’ under ‘the terrible hardships of war’.84 Jefferson Davis (1808–89) the future president of the Southern Confederacy added: ‘The torch and the sword can do their work with dreadful havoc, and starving millions would weep at the stupidity of those who precipitated them into so sad a policy’.85 81   See Declaration Respecting Maritime Law 1856, Arts 2 and 3. For the English positions, see Hickey, D (1995) The War of 1812 (Chicago, University Press Illinois) 12; Ponting, C (2005) The Crimean War: The Truth Behind the Myth (London, Pimlico) 222–24. 82   Treaty of Guadalupe Hidalgo 1848, Art XII. 83   General Order Number 5 in Stout, H (2006) Upon the Altar of the Nation: A Moral History of the Civil War (NYC, Viking) 141, 244; Glover, M (1982) The Velvet Glove. The Decline and Fall of Moderation in War (London, Hodder) 101. 84   Sherman noted in Carr, C (2002) The Lessons of Terror: A History of Warfare Against Civilians (NY, Little) 139. See, generally, Grimsley, M (1995) The Hard Hand of War: Union Military Policy Towards Civilian Populations (Cambridge, Cambridge University Press). 85   Davis, noted in Carr, C (2002) The Lessons of Terror: A History of Warfare Against Civilians (NY, Little) 137.

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The Americans were clear that such approaches were not contrary to the customs of war, and when they drafted their now famous Lieber Code they stipulated in Articles 17 and 18: War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy. When a commander of a besieged place expels the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender.

The destruction of food and sustenance resources continued with the United States in their attempts to subdue various Indian tribes (as had been a practised type of warfare against North American Indians for hundreds of years), and at the end of the nineteenth century with their incursion into Philippines, where all livestock and crops outside special protection zones were destroyed.86 The French attempted to scorch their own territory to slow the advancing Prussian forces in 1870, but had little success as they did not want to hurt their own communities which were left behind. Livestock, crops and populations remained, which the Prussian forces quickly utilised through a strict system of requisitions, as an approved method to help them ‘turn the screw’ on the French during the later stages of the war. These actions coincided with both Metz and Paris being besieged and threatened with shortages of such an extent that, in Paris, even the animals in the zoo were consumed as food.87 Hunger continued to be used as a weapon against besieged cities with Venice in 1848 and Puebla in 1863. It was the tool that broke the defenders of Khartoum after a siege of 300 days in 1884– 85 and, although being the desired goal of the attackers in the siege of Peking in 1900, the beleaguered Europeans were relieved before famine could bite.88 By the turn of the twentieth century, some European powers such as France, under the guidance of Joseph Gallieni (1849–1916) argued that it was necessary to treat the inhabitants of an occupied country decently and not burn their villages and crops as collective punishments – as this ‘can only increase the number of those who go and join the rebel bands’.89 However, such enlightened approaches were the exception, not the rule for most other European powers trying to subdue large parts of foreign lands. In this regard, the British utilised scorched earth policies in parts of Africa, India, New Zealand and Afghanistan during their various conflicts, repeatedly trying to punish or break the spirit of the locals by destroying their villages, food sources and/or water supplies. These approaches were in clear accordance with the principles of the age. 86   Stout, H (2006) Upon the Altar of the Nation: A Moral History of the Civil War (NYC, Viking) 25, 380–82, 460; Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 100, 115, 120, 124; Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 159; Carsten, F (ed) (1961) The New Cambridge Modern History. The Ascendancy of France, Vol V (Cambridge, Cambridge University Press) 367–68. 87  Horne, A (2004) The Terrible Year: The Paris Commune, 1871 (London, Phoenix) 46–49; Best, G (1980) Humanity in Warfare (London, Weidenfeld ) 190, 193; Howard, M (2002) The Franco-Prussian War (London, Routledge ) 255, 280–81, 327. 88   Preston, D (2000) The Boxer Rebellion (NYC, Berkeley Books) 214; Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 80–81; Green, D (2008) Armies of God (London, Arrow) 213–14, 216, 219–21; Keates, J (2006) The Siege of Vienna (London, Pimlico London, Pimlico ) 379, 399–401. 89   Gallieni in Chaliand, G (ed) The Art of War in World History (California, California University Press) 814.

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For example, in his 1896 treatise, Small Wars – Their Principles and Practice, Charles Callwell (1859–1928) wrote: [W]here there is no king to conquer, no capital to seize, no organized army to overthrow . . . the objective is not so easy to select. It is then that the regular troops are forced to resort to cattle lifting and village burning and that the war assumes an aspect which may shock the humanitarian.90

From such thinking, the last campaign of the British army in the nineteenth century, the Tirah campaign in 1897, ended with the systematic destruction of farms and homes. Entire hamlets were dynamited. Crops were destroyed, grain fields were trampled and the ground was laced with salt. Neville Chamberlain (1869–1940), the future Prime Minister of Britain who was present at the time explained: To have to carry destruction, if not desolation, into the homes of some hundreds of families is the great drawback of border warfare; but with savage tribes to whom there is no right but might and no law to govern them in their intercourses with the rest of mankind, save that which appeals to their own interests, the only course as regards humanity as well as policy is to make all suffer, and thereby for their own interests, enlist the great majority on the side of peace and safety.91

The British continued to follow this approach as they subdued the Boers in South Africa. Herbert Kitchener (1850–1916), in his desire to make the Boers stand and fight, developed a policy ‘to destroy or remove everything which may help the enemy or his horses or oxen to move’.92 Accordingly, whilst the Boers tried to cut off water supplies to besieged British areas, the British had the disputed areas swept bare of everything that could give sustenance to the guerrillas, with everything from the animals on the land to the civilians in the farms removed to concentration camps before buildings were burnt to the ground. Waterholes and dams that the Boers relied upon were often destroyed by the British forces throwing dead animals into them.93 Germany also used the destruction of water sources (sometimes with arsenic), food stores, domestic animals and planted food as a permissible method of warfare against ‘wild people and barbarians’. This was a particularly effective tool in the near genocidal attempts to destroy the Herero people in South West Africa.94 Against this background of events, from the second half of the nineteenth century until the First World War, international law started to attempt to deal with the question of controlling food supplies as a method of warfare. It attempted to do this with regard to situations of occupation via the debate about requisitions, and with regard to situations of siege via the debate about blockade.

90   Callwell, C (1896) Small Wars Their Principles and Practice (London, Hall) 40; Porch, D (2000) Wars of Empire (London, Cassell) 38–40, 71–74, 96–97, 147; Bellich, J (1986) The New Zealand Wars (Penguin, Auckland) 67–68, 105–106, 210, 213, 239. 91   Chamberlain in Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 439. See also, Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 58. 92  Order in Jackson, T (1999) The Boer War (London, Channel 4 Books) 131–32. 93   Pakenham, T (1991) The Boer War (London, Cardinal). 94  Hull, I (2005) Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca, Cornell University Press) 155, 183; Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 101; Totten, S (2004) Century of Genocide (London, Routledge) 25–28; Glover, M (1982) The Velvet Glove. The Decline and Fall of Moderation in War (London, Hodder) 101.

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The question of restraint with regard to what requisitions could be taken by an occupying force was a preoccupying one to many jurists of the later part of the nineteenth century. The solution to the question – as in only taking requisitions in an orderly way – began to appear in the Lieber Code.95 It was also broadly set out in the 1874 Project of an International Declaration Concerning the Laws and Customs of War96 and the 1880 Oxford Manual.97 It was eventually cemented in 1899 in international law when the importance of military necessity, orderly conduct and payment for requisitions was clearly set down.98 The custom of the period, as reflected in various treaties before the First World War, saw an increasing willingness by belligerents to rein in this area. For example, with the 1871 Treaty of Peace between France and Germany, the German troops agreed to abstain from levying contributions either in money or in kind on local communities, as the French authorities agreed to pay the costs of maintaining the remaining German troops directly.99 Conversely, with the 1913 peace treaty between Turkey and Bulgaria, Serbia, Greece and Montenegro, although it was agreed that the right of requisition for occupying armies remained, this could only be utilised ‘on condition of payment in coin’.100 The question of limits placed on the amounts that could be requisitioned was dealt with in Hague Convention IV respecting the Law and Custom of War on Land 1907. Here it was clearly stated that ‘requisitions shall be in proportion to the resources of the place’.101 Article 55 of Convention IV added: The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

Prior to the First World War, examples of how this rule was to be interpreted are few and far between. Nevertheless, it is notable that when the United States intervened in Mexico in 1915 the American forces were forbidden to take supplies from the locals.102 The matter of blockades and food was not resolved until the 1909 London Declaration Concerning the Laws of Naval War.103 The 1909 Declaration attempted to protect the rights of neutral parties continue to trade, within limits, to belligerent nations at war. It nevertheless reiterated the now established principles in terms of notification of the existence of a blockade, non-partisan inspections and the rule that ‘absolute’ contraband would be liable to capture.104 It added that ‘conditional’ contraband would also be captured unless it could be shown that it was not being used for the war effort. Moreover, without notice, a number of other articles ‘susceptible of use in   Lieber Code, Art 37.   See Arts 5, 6, 40 and 41. 97   See Arts 49–60. 98   See Arts 48, 49 and 55 of the 1899 Hague Convention (II). 99   Treaty of Peace Between France and Germany 1871, Art IV in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press). 100   Treaty of Peace Between Greece, Bulgaria, Montenegro, Serbia and Turkey, 1913 in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press) Art VII. 101   See Art 52. 102   Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 194. Best, G (1980) Humanity in Warfare (London, Weidenfeld) 188–89. 103   208 Consol, T.S. 338 (1909). 104   London Declaration 1909, Arts 5, 9–14, 17, 20–21, 30, 49–52. 95 96

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ar as well as for purposes of peace’ may, without notice, be treated as ‘conditional’ contraband of war. Amongst the mainly industrial goods liable to become conditional contraband was ‘foodstuffs’. This was reinforced with the list of articles which were primarily raw materials which could not be declared contraband. This list omitted all reference to foodstuffs other than ‘oil seeds and nuts’.105 However, despite the ability of blockaders still to achieve what they desired, the British refused to ratify the Declaration and until the major naval power ratified it, neither would the lesser powers. Accordingly, the Declaration was dead in the water by the time the First World War broke out.106 3 .  The First World War

Going into the First World War, the German armed forces were willing to use starvation or scarcity of food for civilians as a method of warfare. They also considered the primary question to do with requisitions to be one of issuing receipts for what was taken, not one of limits of how much could be taken. The War Book of the German General Staff recognised that the principle was that requisitions should ‘bear a direct relation to the capacity and resources of a country . . . it will scarcely ever be observed in practice . . . in cases of necessity the needs of the army will alone decide’.107 This problem became obvious immediately after the First World War had begun when Belgium, under German occupation, required large amounts of additional food to keep hunger at bay. The rapid German advance had seen the Germans overstretch their supply lines and their forces had to ‘live off the land’. At the same time, the most productive part of the German agricultural sector had been drafted into the armed forces and their own national production was below expectations. Also, Germany was now at war with several countries that used to supply her with grain. This combination of events meant that Germany started to make excessive demands in terms of requisitioned food from the counties she occupied. For example, four fifths of the grain harvest in occupied France went to Germany. In 1916 in Lithuania, 99.3 per cent of wheat, 99 per cent of rye, 100 per cent of oats, 99.5 per cent of potatoes, 87 per cent of butter and most of their meat were exported to Germany. Although all of these transactions were paid for, the chits were almost worthless and failure to accept the chits could be met with punishment. The result was that it was only due to the humanitarianism of some neutral countries like the United States and Spain that food supplies kept flowing into some of these areas to prevent mass starvation.108 It has been suggested that Germany was making excessive demands on the food sources of occupied countries because it own population was starving due to the Allied blockade. This situation occurred because although German farmers produced 90 per cent of their own food, they only did so with the help of two million tons of imported nitrogen and phosphate fertilisers, six million tons of fodder and over a million seasonal workers. Whilst the war at the front stopped the flow of seasonal workers, the   London Declaration, 1909 Arts 24(1), 27(2) and 33.   Best, G (1980) Humanity in Warfare (London, Weidenfeld ) 214, 215. 107   Grossgeneralstab (1915) War Book of the German General Staff in trans Morgan, T (2005) (Pennsylvania, Stackpole Books) 105. On the question of starving besieged areas, see 37. 108  Hull, I (2005) Absolute Destruction: Military Culture and the Practice of War in Imperial Germany (Ithaca, Cornell University Press) 230, 245, 252; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 154. 105 106

The First World War 73

war on the sea stopped the supply of the nutrients necessary for the German agricultural base. This blockade was, as Winston Churchill (1874–1965) suggested in 1914: ‘Treat[ing] the whole of Germany as if it were a beleaguered fortress, and avowedly sought to starve the whole population – men, women and children, young and old, wounded and sound – into submission.’109 Because of the way the blockade was organised, being out at sea and not on the coasts, Germany could not strike at the blockaders in traditional ways. Accordingly, in 1915, the German government announced it would destroy every enemy merchant ship, including those flying neutral flags, found within the war zone surrounding the British Isles. This was justified because the Germans believed the ‘English method of warfare which seeks to condemn the German people to death by starvation through the destruction of legitimate trade with foreign neutral countries’.110 This, in turn, led to the policy of first restricted, then unrestricted, submarine warfare whereby German submarines were allowed to attack all ships en route to the British Isles, with the view of trying to starve Britain into submission.111 Despite the reciprocal intentions of Germany, it was the British blockade which was the first to achieve its goals. According to German calculations, over 700,000 civilians died directly from malnutrition from the ‘hunger blockade’. The official British estimate was 800,000. Others place the figure at 420,000. The evidence would suggest that cattle in Austria and Hungary fell from 17,324,000 to 3,518,000, and numbers of pigs from 7,678,000 to 214,000. Collectively, from winter 1916–17 to summer 1917, and again in the winter of 1917– 18, average rations for civilians dropped below 1,000 calories per day. The German government later claimed that this was the worst atrocity of the war, because it directly caused women and children to starve to death. Moreover, it was alleged that the intentional starvation was continued because, despite a slow opening of the blockade (for fear Germany could fall to communism, not out of concern for the civilians) and some International Committee of the Red Cross (ICRC) food relief convoys being allowed into areas, pressure was necessary to force Germany to sign the Treaty of Versailles. Winston Churchill was later to justify this approach in the following terms: We are enforcing the blockade with rigour. It is repugnant to the British nation to use this weapon of starvation which falls mainly on the women and children, upon the old and the weak and the poor, after all the fighting has stopped, one moment longer than is necessary to secure the just terms for which we have fought.112

The senior German delegate at Versailles, Graf Ulrich von Brockdorff-Rantzau (1869–1928) replied: The hundreds of thousands of non-combatants who have perished since November 11 [the armistice] and the conclusion of Versailles because of the blockade were destroyed coolly

  Churchill, noted in Baker, N (2008) Human Smoke (London, Simon & Schuster) 2.   See Letter of German Foreign Office, Naval War College (1945) International Law Documents (Washington, Government Printer) 52. 111   Tucker, S (1996) The European Powers in the First World War (New York, Garland) 83, 133, 666; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 225; Harris, B (1997) The Navy Times Book of Submarines. A Political, Social and Military History (NYC, Berkley) 200–201. 112   Churchill, noted in Baker, N (2008) Human Smoke (London, Simon & Schuster) 6. 109 110

74  Starvation and deliberately, after our opponents won a certain and assured victory. Think of that when you speak of guilt and atonement.113

It was hoped at the time that such acts of enforced starvation via blockade would not happen again. This was inferred by Point 2 of President Woodrow Wilson’s (1856–1924) Fourteen Points unveiled in 1918 as the basis for the treaty that would mark the end of the war. Point 2 promised: ‘Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants.’ However, exactly what this point was, was never fully developed after the war, as the British were particularly nervous during the negotiations for Versailles that this would prevent them from using the naval blockade in the future as a weapon against their enemies.114 The final area of concern in the First World War was with the German practice of scorched earth. The Germans were not, however, the first to adopt this practice in this conflict. The Russians had earlier stripped their land bare in 1915 as they retreated from the advancing Germans. Two years later, the German armed forces implemented the same practices. Thus, whilst the Germans were alleging that the Allies had committed crimes against them via blockade, the Allies were retorting that the German retreats from 1917 onwards and their associated scorched earth policies were also offences. The German practice in this area appeared when Paul von Hindenberg (1847–1934) decided to start withdrawing German forces from part of France. In doing so, he cited the earlier scorched earth policies already used in the war. In particular, both the Belgians and the French had effectively hampered Germany’s advance in 1914 by blowing up transport and communications networks. The Belgian army had also opened the sea-dike sluices at Nieuport, flooding fields between them and the Germans, and France flooded two of its own mines. Accordingly, it was decreed by the German authorities that all the territory to be abandoned was to be wasted for defensive purposes. This was in accordance with the War Book of the German General Staff. This stated: Prohibited unconditionally are all aimless destructions, devastations, burnings and ravages of the enemy’s country. . . . Permissible on the other hand are all destructions and injuries dictated by military considerations . . . every kind of harm may be done, even the very utmost, which the conduct of war requires or which comes in the natural course of it.115

As such, large sections of northern France were devastated as all machinery was taken, food and livestock pillaged and 40 of the 111 coal mines flooded. Similarly, as the Germans prepared to give back what became Poland, they destroyed 7,500 bridges and blew up 940 railway stations before leaving the country in 1919.116 Although both 113   Von Brockdorff ‘Speech of the German Delegation, Versailles, May 7, 1919’ In Kaes, A (ed) The Weimar Republic Sourcebook (Berkeley, California University Press) 10. Note also, Hull, I (2005) Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca, Cornell University Press) 222, 320; Tucker, S (1996) The European Powers in the First World War (New York, Garland) 83, 133; Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 275; MacMillan, M (2002) Peacemakers: Six Months That Changed the World (London, Murray) 170. 114   MacMillan, M (2002) Peacemakers: Six Months That Changed the World (London, Murray) 27. 115   Grossgeneralstab (1915) War Book of the German General Staff in trans Morgan, T (2005) (Pennsylvania, Stackpole Books) 92. 116   Tucker, S (1996) The European Powers in the First World War (New York, Garland) 118; Hanson, N (2005) The Unknown Soldier (London, Doubleday) 16; Zamoyski, A (2007) Warsaw 1920 (London, Harper) 27.

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the French and the Americans warned Germany that they considered such acts of scorched earth to be potential war crimes, these acts were not pursued in the war crimes trials that followed the conclusion of the war.117 After the First World War, with regard to the practice of starvation, it was the Soviet Union that provided the clearest examples that the control of food would continue to be a weapon in political armouries. In the first instance, starvation followed the civil war that developed as Russia became the Soviet Union. Poor harvests and the calamities of civil war put tens of millions of people at risk of starvation. These problems were quickly accelerated with Vladimir Lenin (1870–1924), who as early as 1918 was using the strict control of food to make his opponents submit. By 1921, as these climatic and political problems continued there was a general famine across the region and Lenin decided to appeal to the international community, and the ICRC in particular, for assistance. The ICRC organised an international relief shipment, with strong support from the United States. By the end of 1921 over half a million railway wagons packed with food and medicine had reached the affected regions and, although five million people had starved to death, millions of other lives were saved in a somewhat odd situation of ideological competition, with the non-Communist countries trying to demonstrate the philanthropy and success of their systems. This situation was different to the starvation which began in 1930 and ended in 1933 when the State, under the directives of Joseph Stalin (1878–1953), forced through agricultural collectivisation on a nation of smallholders. Some two million peasants were deported of which tens, if not hundreds, of thousands died in the process of transportation. Behind them, between three and eight million died of hunger as the morality rate reached 10 per cent per year in some regions. This policy was particularly viscous in the Ukraine and the traditionally Cossack territories of the North Caucasus where the authorities seized people, foodstuffs and farming implements. Even the seed that had been put aside for future planting was taken. Millions tried to survive by eating field mice, insects, husks and dead humans. In the second famine, the Soviet authorities did not request assistance from the international community.118 4.  The Second World War

The direct lead-ins into the 1939 to 1945 conflicts were the wars that were occurring in Spain and China. In these areas, the practice of scorched earth was strongly reflected in both theatres, as all sides showed a willingness to use the forces of nature to damage the opposition. In the first instance, during the Spanish Civil War, the Nationalists opened the dams on the River Serge, and swept away the Republican opposition.119 In 117   Bass, G (2000) Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press) 64, 85–86; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 224, 274; Hull, I (2005) Absolute Destruction: Military Culture and the Practice of War in Imperial Germany (Ithaca, Cornell University Press) 257–60. 118   Courtois, S, et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 63, 67, 123–24, 146–52, 155, 159, 167; Baker, N (2008) Human Smoke (London, Simon & Schuster) 42; Totten, S (2004) Century of Genocide (London, Routledge) 93–124; Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 280–82; Amis, M (2003) Koba the Dread (London, Vintage) 30, 138–39. 119   Beevor, A (1982) The Spanish Civil War (London, Cassell) 349.

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the second instance with the war against Japan in China, the Nationalist forces were also destroying large swathes of assets to deprive the enemy of any benefits. General Xue Yue (1896–1998) explained this policy in the following terms: We have won the war in China, or rather we have prevented the Japanese from assuming complete political control over China, and we have done this simply by employing the policy of scorched earth. This has been our major strategy. We have destroyed China – removed every stone, burnt down every farm, torn up every railway track which we could lay our hands on and we have done this so successfully that the Japanese have already repented of their invasion. They are tired and weary of their invasion.120

Aside from the instance when the retreating Chinese forces fully torched their own city of Changsha in 1938, the most notable act in this process in China involved the dynamiting of the Yellow River dikes in two places in 1938. The river, the largest in North China, flooded across Honan’s plains, inundating three provinces and 44 counties. Between 4,000 and 5,000 villages and 11 large towns were flooded. Estimates suggest that some 893,000 people may have died as a result of this act.121 During the Second World War at least 20 million civilians died of starvation, malnutrition and associated diseases. This number is near equal to the 19.5 million military deaths. Japanese occupations in Burma, Vietnam (between one and two million civilians) and China (approximately three million civilians) resulted in mass death. In all instances, the disruption of traditional production patterns followed by large-scale requisitions saw millions of the local populace under occupation or formally dependent on food from the areas under occupation, starve to death. A further three million died in the Bengal famine of 1943, whilst India produced agricultural surplus for the Allies. In addition, whilst fighting within China, the Japanese military actively targeted fresh water sources and in 1939–40 alone, over 1,000 water wells were contaminated by Japanese forces with typhoid pathogens. Whilst the Allies did not utilise the poisoning of water (nor did the Germans, who continued to use the diversion and creation of scarcity via non-poisonous methods), they retained the option of pursuing starvation. This was particularly obvious in the war against Japan, where they tried to take direct advantage over the isolated position of Japan with its dependence on foreign food sources. Accordingly, because of the Allied blockade, the daily Japanese calorie intake, which was at 2,000 calories per person before the attack on Pearl Harbor, fell to 1,900 in 1944 and would descend to 1,680 in 1945. To put this into some kind of perspective, despite the German blockade around Britain, their average calorie intake of British civilians never fell below 2,800 per day, whilst the average American infantryman in the Pacific received 4,758 calories per day. Nevertheless, although the Japanese experienced scarcity during the conflict, they did not starve during the war (although at least 100,000 starved to death in the months after Japan surrendered). This was despite the best efforts of actions during the war such as ‘Operation Starvation’, whose purpose was axiomatic. However, this operation was to be conducted by siege, not by poisoning the food of the enemy. Nevertheless, it is useful to note that work had begun in late 1941 on two synthetic hormones – 2,4-D and 2,4,5,-T (a combination of which would become Agent Orange) with a view to developing a relatively simple means of destroy Yue, quote in Lary, D (2010) The Chinese People at War (Cambridge, Cambridge University Press) 60.   Lary, D (2010) The Chinese People at War (Cambridge, Cambridge University Press) 61–64, 124–26, 153–55. 120 121

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ing the rice crops of the enemy. However, these new chemicals were not utilised in the Second World War due to considerations of both cost and the war ending before it became possible. Full-scale production of chemicals such as the persistent organic pollutant, 2,4-D did not begin in the United States until 1946.122 In the war between Britain and Germany, food was a target of war almost immediately. The British instigated a food blockade soon after the conflict began. The imposition of this blockade was part of the justification for the launching of the Blitz on Britain. However, even before this point, Hitler was clear that his attack on the British economy, with a view to ‘annihilating it’, would include, inter alia, the destruction of domestic and imported foodstuffs. Accordingly, both the Luftwaffe and the navy were instructed to target food supplies. Moreover, by the end of 1940, in his attempts to strengthen his grip on England, he was declaring that it was more important to sink merchant vessels than enemy warships. This approach met with some success as food imports plummeted from 22 million tons per year before the war to below 12 million tons at the end of 1940, and although starvation did not result, scarcity did and had to be confronted with strict rationing. Hitler had greater sucess with the siege of Malta, where the calorie intake for adult civilians fell to between 1,100 and 1,500 calories per day at the height of the siege. However, the siege was broken and starvation did not occur.123 The British responded in kind, aiming for ‘widespread starvation in many of the industrial areas’.124 However, Germany had learnt from the First World War and drew in its resources from the considerable size of the occupied areas beneath its boot. These policies meant that many of the occupied areas faced clear problems in the adequate provision of food. Originally, Churchill wanted to apply the blockade to all areas under German occupation for fear that any relief would be appropriated by the German war machine. The Americans were particularly concerned by this policy, as it did not distinguish between occupied and unoccupied parts of countries. Thus, with France, they wanted ICRC access to feed children in unoccupied areas. However, Churchill refused to let the Red Cross send even small amounts of milk to children in France, ‘on the ground that it would be difficult to make a distinction between occupied and unoccupied territories’. He was clear, despite the requests from Roosevelt, that Germany had the responsibility of feeding the territories it had occupied. He argued ‘the only agencies which can create famine in any part of Europe . . . will be German extractions or German failure to distribute the supplies they command’.125 However, Churchill relented on this position in 1941 when he authorised one ICRC ship, under international monitoring, to distribute powdered milk and medicine in France. He next allowed over 750,000 tons of food and other supplies to be distributed by the ICRC in Greece after the Germans had largely stripped the food from the country for their armed forces in North Africa, causing the death by starvation of perhaps 122   Collingham, L (2011) The Taste of War: World War Two and the Battle for Food (London, Penguin) 1, 7–11, 228–316, 467. Hastings, M (2008) Nemesis: The Battle for Japan (London, Harper ) 13, 46, 63; Geissler, E (1999) Biological and Toxin Weapons: Research, Development and Use from the Middle Ages to 1945 (Oxford, Oxford University Press/SIPRI) 37, 99–101, 122, 164–67. 123   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 ) (London, Pan) 57, Directives 9, 17 and 23; White, D (2006) Bitter Ocean (London, Headline) 72; Hough, R (2003) The Longest Battle. The War at Sea 193 –45 (London, Cassell) 230–31. 124  Holland, J (2003) Fortress Malta: An Island Under Siege 1940–1943 (London, Phoenix) 315–19. Baker, N (2008) Human Smoke (London, Simon & Schuster) 160, 188, 223, 458. 125   Churchill, W (1957) Great War Speeches (London, Transworld) 51.

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some 500,000 people. Finally, in the winter of 1944 to 1945, he allowed the Swiss and Swedish Red Cross to provide food to the occupied Netherlands, thus saving them from a disastrous winter shortage which nevertheless claimed between 16,000 and 22,000 Dutch citizens.126 However, it is important to note that allowing such food supplies was done on a selective basis, and requests to allow food supplies into areas where people were starving were not always approved. For example, when the Allies invaded Italy, and the Italians changed sides, the food from occupied Europe with which the Germans had been subsidising the Italians came to a sudden stop, and the farms of Italy could not produce enough to feed the cities. Although large parts of Italy were close to starvation, Churchill, in an attempt to raise the pressure surrounding the German forces, took the view that ‘Rome must starve till freed’.127 The first obvious fact that needs to be stated with regard to the above examples is that starvation and/or scarcity in France, Greece, the Netherlands, Poland and the Soviet Union was directly related to the requisitions taken by the German forces. These takings were consistently, and in direct opposition to the 1907 rule from Convention IV on this area, that requisitions ‘be in proportion to the resources of the place’.128 In this regard, the Nazis were ruthless. For example, Hermann Goering (1893–1946), despite envisaging starvation in the Soviet Union of between 20 and 30 million people, instructed his officers in the Soviet Union: If anyone goes hungry, then it won’t be the Germans but others . . . it makes no difference to me if you say your people are collapsing from hunger. Let them do so as long as no German collapses . . . let us see what Russia can deliver . . . we should be able to get two million tons of cereals and fodder out of the whole of Russia.129

Alfred Rosenberg (1893–1946) concurred with regard to the Russian civilians under his administration stating ‘we see absolutely no reason for any obligation on our part to feed the Russian people with products of this surplus region’.130 With such policies, it was expected that tens of millions of Russians would starve to death. Although this figure was not achieved, between two and three million Russian civilians were killed by hunger. The famine induced by the Nazi rulers of Kharkov in 1942 to 1943 may have killed as many as 100,000 civilians. In this instance, not only did the army requisition huge amounts of food, they also sealed in the population as a security measure, preventing townspeople from bartering for food. Under these circumstances, cannibalism was not unknown.131 126   Baker, N (2008) Human Smoke (London, Simon & Schuster) 262, 173–275, 306; Osborn, J (2009) ‘Greek Tragedy’ Quarterly Journal of Military History Summer, 76, 86; Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 393–95; Viven, R (2006) The Unfree French: Life Under Occupation (London, Penguin ) 215–26; Bugnion, F (1997) ‘ICRC Action During WWII’ International Review of the Red Cross 317: 156–77; Anon ‘Dutch Population Faces Starvation’ BBC History (13 January 2005). 127  Holland, J (2008) Italy’s Sorrow: A Year of War, 1944–1945 (London, St Martin’s Press) 153, 193; Hapgood, D (1984) Monte Cassino (London, Augus) 27. 128   1907 Hague Convention IV, Art 52. Note also the UN War Crimes Commission, Law Reports of the Trials of War Criminals, The Trial of Joseph Buhler, Case No 34 (1948) (London, HMSO) Vol VI, 83. 129  Goering’s memos in Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 80–81; also, Kershaw, I (2008) Hitler (London, Allen) 634. 130   See Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 130. 131  Rees, L (1999) War of the Century: When Hitler Fought Stalin (London, BBC) 60, 96–97; Collingham, L (2011) The Taste of War: World War Two and the Battle for Food (London, Penguin) 11, 36–39, 166–79, 317–25; Megargee, G (2007) War of Annihilation: Combat and Genocide on the Eastern Front, 1941 (Boulder, Rowman) 34, 63,120, 143.

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The second point that needs to be made, which flows directly on from the first, is that the German forces often intended the people under occupation or siege to starve to death. The first example of this involves the active policy of starvation in many of the ghettos, where the strict control of food was used as one of the arms of their genocidal policies. For example, with the Warsaw ghetto, by the middle of 1941 up to 300 people were starving to death per week, with a final total of 100,000 people meeting their end because of starvation and disease. In the Lodz ghetto, the total was 40,000. These deaths were a direct result of the ration allowance which was 2,613 calories per day for Germans, 699 calories per day for Poles and 184 calories per day for Jews. Hans Frank (1900–46), the German commander in Poland would record ‘that we sentence one to two million Jews to die of hunger should be noted only marginally’.132 Similarly, although not under occupation, but under a heavy siege from 1941 to 1943, Hitler directly opted for the policy of starvation to achieve his military goals of making Leningrad ‘vanish from the earth’. In doing so, he did not wish to sacrifice his soldiers in street fighting and, accordingly, ordered the army to blockade the city into submission. Although not completely blockaded, somewhere between 600,000 and 1.2 million people died as a result of this siege. This figure was more than the combined dead from the infernos of Coventry, Dresden, Hamburg, Tokyo, Hiroshima and Nagasaki. This figure was reached because German Field Marshall Wilhelm Ritter von Leeb (1876– 1956) ordered German troops to turn back any Russian civilians attempting to leave the besieged city of Leningrad. General Georg von Küchler (1881–1968) went on to warn his soldiers that ‘feeding native inhabitants from army kitchens is a misguided humanitarian act’.133 As such any women, children or elderly persons who attempted to leave the city were shot at, forcing them to retreat back into the besieged area in an attempt ‘weaken [the city] by terror and growing starvation’. Hitler went so far as to suggest he would not even accept a surrender of this city as ‘we are not interested in preserving even a part of the population of this large city’.134 The situation became so extreme that within the besieged area, the Soviet authorities had to execute at least 300 people for cannibalism and imprison a further 1,400 people for cannibalism.135 The Second World War was also notable for the practice of scorched earth. The British utilised this policy in both offensive and defensive operations. The Dutch army utilised scorched earth for defensive purposes when it blew up bridges and opened floodgates in their retreat from the advancing German army. Churchill used scorched earth policies for both offensive and defensive purposes. For offence, Churchill ordered the repeated bombing of the Black Forest with incendiaries (‘crops will not burn, but forests will’), where storehouses may have been. The forest of Nieppe (in French Flanders) was also deemed worthy of what Churchill called ‘an experiment in forest burning’.136 Even greater experiments involved the so-called ‘dam-busters’ who sought to deprive the Ruhr industrial complex of water and power. However, despite the strong results such tactics came at a vast cost. For example, when the Mohne (135 million cubic 132   Frank, note in Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 439; Laqueur, W (ed) (2001) The Holocaust Encyclopaedia (New Haven, Yale University Press,) 259–61; Baker, N (2008) Human Smoke (London, Simon & Schuster) 289, 339, 350, 397, 411. The calorie figures are from Russell, S (2005) Hunger (NYC, Basic) 96. 133   Jones, M (2009) Leningrad: State of Siege (London, Murray) 128. 134   Jones, M (2009) Leningrad: State of Siege (London, Murray) 40–43, 161. 135   Jones, M (2009) Leningrad: State of Siege (London, Murray) xxi, 5, 37–38, 93, 105, 188, 193, 199, 293. 136   Baker, N (2008) Human Smoke (London, Simon & Schuster) 225, 228, 238, 262–63, 347, 368.

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metres of water) and Eder (202 million cubic metres of water) dams were destroyed in 1943, water and energy supplies were cut off to more than four million Germans in the region. In addition, more than 1,300 civilians were killed.137 Scorched earth for defensive purposes was utilised by the British forces in their retreat from advancing Japanese forces in Malaysia in 1941. Originally, the policy involved the destruction of railways, bridges, electricity stations, reservoirs and food storehouses. However, after exchanges between Singapore and London, the order was curtailed so as not to apply to foodstuffs already issued to the civilian population, to water supplies, or to power-plants.138 The Soviets, despite fighting on their own territory, did not show such restraint. Thus, towards the end of 1941, Stalin ordered Red Army partisan units ‘to destroy and burn to ashes’ all houses and farms for up to 40 miles behind the German lines to deny them shelter and other resources. All supplies which could not be removed were destroyed, and fresh water sources were polluted.139 The German forces followed the ruthless approach of the Soviets. This was most evident in their retreat from Russia, of which Hitler ordered on 7 September 1943: 1. All agricultural products, means of production and machinery . . . serving the agriculture and food industry are to be removed. 2. The factories serving the food economy . . . production and processing . . . are to be destroyed. 3. The basis of agricultural production . . . records, storage plants, the organization responsible for the food economy are to be destroyed. 4. The population engaged in the agricultural and food economy is to be transported . . . west of the fixed line. 5. Every place of inhabitation must be burnt down and destroyed without consideration for the population.140

By the time the Germans began their retreat, they had razed 28,000 villages, and 714 cities or towns, leaving at least 10 million people homeless. Everything that could not be taken back to Germany was destroyed. In the Ukraine alone, they moved six million cattle, 550 large factories, thousands of small factories, 300,000 tractors and the countries entire rolling stock, whilst destroying most of the infrastructure and resources that remained, including nearly one million tons of grain. They also destroyed some dams in their retreat from Russia, such as that of the Zaporozhe in 1943.141 Very similar policies designed to slow the advance of the enemy were implemented in other occupied countries, with Norway and Italy being notable, with power plants, dams or dikes and food sources all being destroyed.142 Hitler, in an act of near national (and in his mind, justified) suicide then applied the same rule for Germany with the so-called Nero Decree. He ordered: 137  See Schmitt, M (1997) ‘Green War: An Assessment of the Environmental Law of International Armed Conflict’ Journal of International Law, 22, 1-110. 138  Owen, F (1960) The Fall of Singapore (London, Penguin) 65, 69–70. 139   Beevor, A(1998) Stalingrad (London, Penguin) 45, 87. 140   Scorched Earth Order in Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 82. Note, point 5 was added at a later date. See Rees, L (1999) War of the Century: When Hitler Fought Stalin (London, BBC) 99. 141   Megargee, G (2007) War of Annihilation: Combat and Genocide on the Eastern Front, 1941 (Boulder, Rowman) 115–16; Merridale, C (2005) Ivan’s War: The Red Army 1939–45 (London, Faber) 180, 201; Woodhead, H (1985) Scorched Earth (NY, Timelife Books) 5, 68; Hobbes, N (2004) Essential Militaria (London, Atlantic) 123. 142   Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 104, 354; Holland, J (2008) Italy’s Sorrow: A Year of War, 1944–1945 (London, St Martin’s) 207.

After 1945 81 All military, transportation, communications, industrial and food supplies facilities, as well as all resources within the Reich which the enemy might use either immediately or in the foreseeable future for continuing the war, are to be destroyed.143

5 .  After

1945

At the trials that followed the Second World War, the question of starvation of civilian populations under occupation was dealt with as a subset of broader crimes against humanity, and genocide. The question of scorched earth was also discussed at length in the so-called Hostages Case, and in an unexpected outcome, it was clearly held that the policy was permissible if the defendant believed it to be justified by military necessity during their retreat.144 Although such an approach may have been a defining factor in the defence of General Lothar Rendulic (1887–1971) and a notable fact in the case of Arthur Seyss-Inquart (1892–1946),145 it was the decision by the Tribunal in the case of Albert Speer (1905–81) where the debate of scorched earth was most notable. That is, it was his rejection of Hitler’s Nero Decree in this area that was probably the defining consideration that allowed Speer to survive the trials. Indeed, he was tireless and successful in protecting the infrastructure and resources of both occupied countries and Germany from unnecessary destruction. No one, he wrote to Hitler, had the right to order the destruction of the means of survival of the nation: We must do everything to maintain, even if perhaps in a most primitive manner, a basis of existence for the nation to last . . . No one may take the position that the fate of the German people is bound to his own . . . we have no right at this stage of the war to carry out destructions which would strike at the life of the nation. . . . we have the obligation of leaving to this nation everything possible that in the remote future might be able to insure it a reconstruction.146

This issue was only approached in passing when the international community gathered soon after to reconsider the laws of war. In a reflection of the Nuremberg decisions, it was declared in Article 53 of Geneva Convention IV that: Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organisations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

143   Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 294 Directive 72. See also, Edsel, R (2009) Monuments Men (London Preface) 251; Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 488. 144   The correct name of the Hostages Case was, United States of America v Wilhelm List, et al. The original is found in the United Nations War Crimes Commission (1949) Law Reports of Trials of War Criminals (London) Volume VIII, 1–143. See also Pictet, J (ed) Commentary on Geneva Convention IV (Geneva, ICRC) 302; Schmitt, M (2002) ‘War and the Environment: Fault Lines in the Prescriptive Landscape’ in Austin, J (ed) The Environmental Consequences of War (Cambridge, Cambridge University Press) 87, 99. 145   Seyss as a proconsul for Holland rebelled against Hitler’s scorched earth policy, as he wished the Dutch no ill will which would be caused with senseless destruction. As such he refused to order the flooding of the polders and agreed with Speer that the demolitions must be kept to a minimum. See Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 460. 146   Speer Letter in Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 486–87. See also Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 281–82; Kershaw, I (2008) Hitler (London, Allen) 665.

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Whilst the importance of the provision of food in times of peace was well recognised in the formation of the food and agriculture organisation of the United Nations in 1945, the question of the provision of food in times of war was much more complicated. The discussion began with the formation of the United Nations Charter, of which Article 42 recognised that the Security Council could adopt what measures were necessary to restore international peace and security including, inter alia, ‘blockade’. However, the question of whether such blockades could cover foodstuffs was not set out.147 The matter was given a little more attention in the fourth Geneva Convention of 1949 for the Protection of Civilian Persons in Time of War. As a first step, it was agreed that in times of siege, although the mandatory allowance of food into such areas was not noted, the parties to conflicts would endeavour to conclude local agreements for the removal from besieged or encircled areas of wounded, sick, infirm, and aged persons, children and maternity cases, whilst also allowing for the passage of medical teams and religious personnel into those areas.148 In terms of populations under occupation, it was agreed that: To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.149

Thus, the Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account. If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power must agree to relief schemes, in terms of food, medicine or clothing, on behalf of the said population. They must also facilitate, in conjunction with organisations such as the ICRC, the distribution of such consignments. Such consignments are to be protected and given free passage, and subject to security concerns, distributed to the individuals in need.150 It was also recognised that the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under 15, expectant mothers and maternity cases was to be allowed. However, the provision of such goods may be prevented under Article 23(c) if it is feared that: A definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.151

The growing recognition that food sources could not be manipulated without restraint in war was supplemented by the body of human rights law that evolved out of the same period. That is, Article 25 of the 1948 Universal Declaration on Human Rights stipulated ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food’. In coming decades this was   Best, G (2002) War and Law Since 1945 (Oxford, Oxford University Press) 122–23, 283.   Civilians 1949, Art 17. 149   Civilians 1949, Art 55. 150   Civilians 1949, Arts 59–63. 151   Civilians 1949, Art 23(c). 147 148

After 1945 83

supplemented by the 1966 International Covenant on Civil and Political Rights152 and the 1966 International Covenant on Economic, Social and Cultural Rights153 which stipulated in their first articles ‘in no case may a people be deprived of its own means of subsistence’. The latter went on to stipulate that ‘all persons have a right to “adequate food” and to be “free from hunger” ’.154 Although there has been ongoing political debate over how to implement these rights, at the very least, these rights suggest that intentional attempts at starvation were, and remain, prohibited.155 This problem was that the famines which followed in the years to come were not intentional. That is, the starvation that resulted was not intentional. This was most evident with the greatest famine in history which occurred in Communist China between 1959 and 1961. Undoubtedly, it was not Mao’s intention to kill between 20 million and 43 million of his compatriots in his ‘Great Leap Forward’. However, trying to force political ideology upon nature, such as killing off sparrows because they ate too much rice, or planting grains together which should grow ‘collectively’ was near lunacy. When poor climatic conditions overlapped with exponential population growth, the results were catastrophic.156 Nevertheless, despite the cruelty of the results, these acts were not the by-product of a military campaign. In fact, after 1945 and before 1977, such intentions in times of warfare appear to have been relatively scarce. This is not to suggest that the control of food and/or water with the creation of scarcity was not a driving factor in a number of campaigns to crush insurgents in Kenya, Aden and Malaysia.157 In the last instance, it is important to note that this was the first time that some 35,000 tons of defoliants were dropped on the areas occupied by Malaysian insurgents to destroy both their food sources and the places of natural vegetation they sought refuge in or attacked from.158 However, in the war in Cambodia, the degree of food scarcity, which was tightly linked to the achievement of political goals, was of an even greater intensity – after victory had been achieved by the Kymer Rouge.159 The exception to this approach, where the control of food and the creation of starvation became a central feature of the conflict during a civil war, involved Biafra, whereby insurgents attempted to carve an independent State from northern Nigeria between 1967 and 1970. The problem for the insurgents was that they had no political support from the Western, Eastern or even African countries. However, when a strict blockade was placed upon the breakaway State, the world awoke to a media frenzy showing thousands of starving children. The Biafran leaders claimed that Nigeria was 152   GA Res 2200A (XXI) 21 UN GAOR Supp (No 16) at 52 UN Doc A/6316 (1966) 999 UNTS 171, Art 1(2). 153   GA Res 2200A (XXI) 21 UN GAOR Supp (No 16) at 49 UN Doc A/6316 (1966) 993 UNTS 3. Also, Art 1(2). 154   Art 11. 155   See Segall, A (1999) ‘Economic Sanctions: Legal and Policy Constraints’ IRRC 836, 763–84. 156   Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico ) 284–85; Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 489, 491, 495, 596. 157   Corbett, R (1986) Guerrilla Warfare ) (London, Orbis) 64, 136; Beckett, I (2001) Modern Insurgencies and Counter Insurgencies (London, Routledge) 103. 158  Connor, C ‘How Britain Sprayed Malaya With Dioxin’ New Scientist (19 Jan 1984) 6–7; Anon ‘Malaysia Probes Spraying of Agent Orange’ New Scientist (1 March 1984) 9. 159   Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 648–49.

84  Starvation

using hunger and genocide to win the war, and sought aid from the outside world. The intervention by the ICRC, which was originally consented to by the Nigerian government, allowed the ICRC to fly food into one carefully marked airstrip. This was the greatest airlift of food since the Berlin blockade of 1948–49. However, following potential abuse of this airstrip by the Biafran insurgents, by using it also for the supply of weapons, the strip was bombed, and soon afterwards, an ICRC plane was shot down. Flights were then suspended and, despite ICRC protests, the Nigerian government announced that it had decided to bring to an end the ICRC’s mandate to coordinate the relief operation. From this point, Medicins Sans Frontieres was born, as they would not sit back and wait for State consent whilst people starved. Nevertheless, Nigeria was acting in accordance with Article 23(c) of the Fourth Geneva Convention. By the end of the conflict, an estimated 180,000 civilians had starved to death within the blockaded area. The Nigerian government accused all of the donors of causing more lives to be lost by indirectly prolonging the war.160 The other great conflict of the period, namely the Vietnam War, saw a combination of developments in the area of scorched earth that led to multiple developments in international law. In some respects, the Americans operated an unusual restraint where, despite bombing most other things in Vietnam, they refused to bomb the enorm­ous and vulnerable dike system along the Red River, which – if hit – would have flooded and drowned hundreds of thousands of Vietnamese civilians. This was notably different to the approach of their British allies in the Second World War with their ‘Dam Buster’ raids, and their own actions in the Korean War, where five irrigation dams were targeted as a goal to impede rice production and force the North Koreans towards an armistice.161 The American restraints on bombing dams in enemy territory need to be juxtaposed against their practice of scorching the earth with their utilisation of millions of gallons of persistent organic pollutants known as Agent Orange. The estimated 90,000 tons of Agent Orange were supplemented by Agents Purple, Pink, Green and White, with some 9,000 gallons of Green, 123,000 of Pink, 145,000 gallons of Purple and 5.2 million gallons of White. In addition, 1.2 million gallons of Agent Blue, an arsenicbased insecticide developed to destroy food crops was also dropped over 40,000 acres of crop land, primarily in the northern and eastern provinces of Vietnam. The Americans were of the view that ‘anti-plant chemicals for defoliation or the destruction of crops’, provided that their use did not cause the food to be poisoned directly, were not illegal. This was especially so if the crops were also used by the combatants and a proportionate military advantage was gained in the action.162 At its peak, this operation involved 25 planes spraying defoliants. Initial results from defoliation missions were extremely positive. Field commanders surveyed in 1968 reported that horizontal visibility increased by up to 70 per cent and vertical visibility increased by up to 90 per cent. Such results increased the safety and efficiency of their operations, 160   Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 622; de Waal, A (1997) Famine Crimes: Politics & the Disaster Relief Industry in Africa (Johannesburg, African Rights and the International African Institute) 76–79; Forsythe, D (2005) The Humanitarians: The International Committee of the Red Cross (Cambridge, Cambridge University Press) 67–68. 161   Sears, D (2010) ‘Inventing on the Fly’ Military History Quarterly Summer. 36–43; Westing, A/SIPRI (1990) The Environmental Hazards of War (London, Sage) 6. 162   Department of Defence Position With Regard to the Destruction of Crops Through Chemicals 10 ILM (1971) 1300.

Two New Conventions and the Additional Protocols 85

although the legacy, for both humans and the environment, has been multi-­ generational.163 By the end of the conflict in South Vietnam, more than a third of the mangroves were dead and up to 10 per cent of the forests had been badly damaged. In terms of humans, the chemicals had poisoned both many of their own combatants (which most governments eventually compensated for) and also resident civilians (which most governments never compensated for). Forty years after the war ended, some Vietnamese people living in some parts of the countryside still produce dioxin readings in their blood which are 100 times above the amount of their counterparts in the cities. Such concentrations have overlapped with increased rates of cancer and congenital malformations in second and third generation citizens in dioxin hotspots. There are tens of thousands of Vietnamese citizens officially classified by the Vietnamese government as dioxin victims.164 The final area of note in this conflict was the American attempts, via hundreds of operations, to intensify the normal monsoon rainfall over the Ho Chi Minh trail by the seeding of clouds with silver and lead oxides. How much of a success this was is a matter of debate as natural variations can easily wipe out any anthropogenic changes. Nevertheless, the experiments gave considerable pause for thought about the way that the environment may be manipulated to achieve military advantage.165 6.  Two New Conventions and the Additional Protocols

The Vietnam War, coupled with strong ICRC lobbying, had a significant impact on the practice of scorched earth and the laws of war during the latter half of the 1970s and this evolved quickly in two clear steps.166 First, the United States renounced the use herbicides in war in 1975,167 and this renunciation later found its way into the 1993 Chemical Weapons Convention which agreed the prohibition ‘of herbicides as a method of warfare’168 (although the United States would continue to use defoliants in the following decades to help destroy drug crops in, inter alia, Afghanistan, Columbia 163   Anon (2003) ‘Dioxin In Vietnam’ New Scientist (19 April 2003) 4–6; Tucker, S (1998) The Encyclopaedia of the Vietnam War (Oxford, Oxford University Press) 95, 170–72; Hay, A et al ‘The Chemical Weapons’ New Scientist (11 March 1982) 630–34; Barnaby, F ‘Towards Environmental Warfare’ New Scientist (1 Jan 1976) 6–9; Greenfield, G ‘Agent Blue and the Business of Killing Rice’ Ecologist (9 July 2004); Anon ‘Fall-Out From Vietnam War’ New Scientist (24 Feb 1983) 506. 164   Isaacson, W ‘The Legacy of a Distant War’ TIME (22 March 2007) 17; Anon ‘No Dioxin Study’ New Scientist (19 March 2005) 7; Young, E ‘Foul Fare’ New Scientist (26 May 2001) 13; Pearce, F ‘Innocent Victims’ New Scientist (3 Oct 1998) 18–19; Joyce, C ‘American Government Knew About Dioxin In Herbicides’ New Scientist (18 August 1983) 45; Anon ‘Dioxin Poisons Vietnam Veterans’ New Scientist (13 April 1978) 69; Anon ‘Agent Orange Was Safe’ New Scientist (10 March 1983) 633; Newell, J ‘New Research Links Agent Orange With Cancers’ New Scientist (7 Feb 1985) 6; Anon ‘Fall-Out From Vietnam War Continues’ New Scientist (24 Feb 1983). 506; Westing, A (1976) The Ecological Consequences of the Second IndoChina War (Stockholm, Almqvist) 82. 165   Valery, N ‘The Shape of Wars To Come’ New Scientist (17 June 1976) 628; Barnaby, F ‘Towards Environmental Warfare’ New Scientist (1 Jan 1976) 6–9; Mullins, J ‘Raising A Storm’ New Scientist (27 July 2002) 27–33. 166   ICRC Conference Resolutions 1973 and 1977 in ICRC (1995) The Humanitarian Endeavour (Geneva, ICRC) 179, 181. 167   Statement by the President on the Geneva Protocol 1925, 14 ILM (1925) 299. Note the United States had the political clout to keep its extensive defoliation and crop and forest destruction off the agenda at the Stockholm Conference on the Human Environment 1972. 168   Chemical Weapons Convention, Preamble.

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and Peru).169 Second, the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) and the 1977 Additional Protocols to the Geneva Conventions were concluded. The ENMOD grew out of the interest of the United States and the United Nations General Assembly in having a dedicated convention which provided for the complete cessation of the use of any environmental modification techniques as a weapon of war.170 ‘Environmental modification techniques’ refers to any technique for changing – through the deliberate manipulation of natural processes – the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.171 This goal was largely agreed with the Convention, under which the Parties agreed: ‘not to engage [or assist others] in military or any other hostile use of environmental modification techniques having as the means of destruction, damage or injury to any other State Party’.172 It was understood when signing the ENMOD that the term ‘widespread’ referred to an area on a scale of several hundred square kilometres; ‘long lasting’ meant lasting for a period of months, or approximately a season; and ‘severe’ meant involving serious or significant disruption or harm to human life, natural and economic resources or other assets.173 The second, and more substantial, development to occur in this area in the 1970s was the writing of the Additional Protocols to the Geneva Conventions. These were particularly important, for unlike the ENMOD, the Additional Protocols came to give specific rules on targeting areas traditionally linked to scorched earth practices and specific rules with regards to starvation as a method of warfare. The rules on starvation are found in Articles 54 and 69 to 71 of Additional Protocol I and for conflicts of a non-international character, in Articles 14 and 18 of Protocol II. Articles 55 and 56 of Additional Protocol I, although related to starvation, are more linked to scorched earth policies and the destruction of objects indispensable to the survival of civilian populations. For non-international conflicts, the corresponding rule is in Article 15 of Protocol II. On the topic of starvation as a method of warfare, Article 54 of Protocol I stipulates: Starvation of civilians as a method of warfare is prohibited. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying

169   Anon ‘Call for Biowar on Drugs’ New Scientist (29 April 2006) 6; Harding, L ‘US Helicopters In Secret Mission To Spray Afghanistan’s Blossoming Opium Fields’ Guardian (9 June 2003); Kleiner, K ‘Coca Killer’ New Scientist (11 March 2000) 5; Tandon, S ‘US Abandons Attempt to Eradicate Poppy Fields’ New Zealand Herald (26 June 2009) A20; Strong, S (1992) Shining Path (NYC, Fontana) 128–29. 170  UNGA Res (1975) 3475 Prohibition of Action to Influence the Environment and Climate for Military and other Hostile Purposes. Noted also, the Draft Convention on the Prohibition of Action to Influence the Environment and Climate for Military and Other Purposes Incompatible with the Maintenance of International Security, Human Well Being and Health. 13 ILM (1974) 1473. 171   ENMOD Convention, Art 2. 172   Art 1. Note, this does not prohibit research into such topics for peaceful purposes. Questions of compliance are dealt with in Art V. 173   The text of the Understanding for the ENMOD Convention is in US Senate, 95th Congress, Second Session, on the ENMOD (1978) (Washington, US Government Printing Office) 8, 11–12.

Two New Conventions and the Additional Protocols 87 them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

These objects, which cannot be the target of reprisals, may also not be attacked unless they are used solely for the benefit of the armed forces of the adversary. Even if they are used in direct support of military action, they cannot be attacked if doing so would ‘leave the civilian population with such inadequate food or water as to cause its starvation or force its movement’.174 The only exception to this principle is if, as a result of ‘vital requirements of any Party to the conflict in the defence of its national territory against invasion’, a Party may attack such objects indispensable to the survival of the civilian population, if done ‘within such territory under its own control where required by imperative military necessity’.175 That is, scorched earth may, in cases of imperative military necessity, be utilised by a Party in its territory for the purpose of defence. Under Protocol II for conflicts of a non-international character, Article 14 stipulates: Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless for that purpose, objects indispensable to the survival of the civilian population such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works.

Unlike with Protocol I which contains the exception for scorched earth situations in national self-defence, no such exception exists for conflicts of a non-international character under Protocol II. In terms of facilitating relief to starving populations, under Additional Protocol I, relief actions for the benefit of the civilian population of occupied territories governed by the Fourth Convention ‘shall be implemented without delay’.176 Protocol I added that if the civilian population of any territory under the control of a Party to the conflict, other than an occupied territory, is not adequately provided with the supplies mentioned, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. It was also agreed that the Parties to the conflict and each High Contracting Party would ‘allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel’ provided in accordance with Additional Protocol I ‘even if such assistance is destined for the civilian population of the adverse Party’.177 They nevertheless retained the right to make access conditional and search such relief columns. However, they could ‘in no way whatsoever, divert relief consignments from the purpose for which they are intended nor delay their forwarding, except in cases of urgent necessity in the interest of the civilian population concerned’.178 The personnel participating in the relief actions, and those involved with the transportation and distribution of relief consignments in particular, although subject to the approval of the Party in whose territory they will carry out their duties, were to be respected and protected ‘to the fullest extent   Art 54(3). The point on reprisals is in Art 54(4).   Art 54(5). 176   Additional Protocol I, Art 69. 177   Art 70. 178   Art 70(3)(a)–(c). 174 175

88  Starvation

prac­ticable’. Only in case of ‘imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted’.179 Protocol II, which was less direct on this topic of relief operations for starving populations due in large part to the sensitivities of internal conflicts, only went so far as to suggest that relief societies located in the territory of the High Contracting Party, such as Red Cross organisations, may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict. In particular, if the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as food-stuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.180 Although consent is pivotal, the generally accepted view is that they should accept them when the civilian population is not adequately catered for and when the relief is impartial in nature.181 On the topic of scorched earth, provision is found in two parts in Additional Protocol I. First, Article 35(3) states: ‘It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.’ Second, Article 55 added: Care shall be taken in warfare to protect the natural environment against widespread, longterm and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. . . . Attacks against the natural environment by way of reprisals are prohibited.

Despite the reservations of key countries like the United States on this matter, with regards to its applicability to both nuclear and conventional weapons,182 the International Court of Justice is of the view that Articles 35(3) and 55 of Additional Protocol I ‘embody a general obligation to protect the environment against widespread, long-term and severe environmental damage’ and these ‘are powerful constraints for all the States that have subscribed to these provisions’. As such, these are not necessarily trumping obligations, and are only factors which must: Be taken into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality.183

  Art 71.   Protocol II. 1977 Art 18(1) and (2). 181   Pejic, J (2001) ‘The Right to Food in Situations of Armed Conflict’ IRRC, 83, 1097–110; Mourey, A (1991) ‘Famine and War’ IRRC 285, 549–57; Grunewald, F (1996) ‘Food Aid: For or Against?’ IRRC 315, 589–608; Rottensteiner, C (1999) ‘The Denial of Humanitarian Assistance As A Crime Under International Law’ IRRC 835, 555–82. 182   General Counsel of US Department of Defence (2007) Letter to the ICRC Regarding Customary International Law Study in International Legal Materials 46, 511, 520. For the 1977 text on their reservations with regards to these provisions and nuclear weapons, see Roberts, A (ed) (1982) Documents on the Laws of War (Oxford, Oxford University Press) 462. 183   Legality of the Threat or Use of Nuclear Weapons [1996] General List No 95 at 30. See also 31, 32 and 33. 179 180

Two New Conventions and the Additional Protocols 89

The only difficulty was that the cumulative nature of the test (widespread, long-term and severe), combined with the imprecise nature of the exact meaning of each of these terms, meant that findings of environmental destruction as a crime of war would never be found under these provisions. Overlapping Article 56 of Additional Protocol I on the protection of works and installations containing dangerous forces, just to ensure that there was no confusion over specific targets, supplemented: Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, [which are not providing significant and direct support to military operations] shall not be made the object of attack [or reprisals], even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.184

With Protocol II on conflicts of a non-international character, whilst the prohibition on attacks on works and installations containing dangerous forces (namely dams, dykes and nuclear electrical generating stations) was reiterated, the exceptions attached to Protocol I of this prohibition were not repeated. Moreover, launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects was recognised as a grave breach of the Additional Protocol I. Prima facie, no such recognition accompanies Article 35 or 55. Although later scholarship would argue that substantive violations of these articles may be a grave breach of international humanitarian law, more conservative readings of the same situation would suggest that this remains a legal vacuum in terms of addressing environmental damage that occurs in times of civil war.185 The final Convention of note from this period was the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects. The Preamble to this Convention reiterated that it was ‘prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, longterm and severe damage to the natural environment’. The Third Protocol to the Convention on Incendiary Weapons added: It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives or are themselves military objectives.186 184   It was added that Parties to a conflict should supplement these rules with additional bilateral agreements when dealing with objects containing dangerous forces. Such objects are meant to be marked with a special sign consisting of a group of three bright orange circles places on the same axis. 185   See United Nations Environment Programme (UNEP) (2009) Protecting the Environment During Armed Conflict (Nairobi, UNEP); 5 Yearbook of International Environmental Law (1994) 153–56; Zemmali, A (1995) ‘The Protection of Water in Times of Armed Conflict’ IRRC 308, 550–64. 186   Protocol III to the Convention on Conventional Weapons, Art 2(4). ‘Military objective’ was defined to mean, so far as objects are concerned, any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. Art 1(3).

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7 .  Scorched Earth Between

1980

and the Twenty-First Century

The war between Iran and Iraq saw a retreat to traditional practices of scorched earth and warfare where the environment became either an active target or recipient of large amounts of indiscriminate impacts. The indiscriminate impacts were primarily obvious through the mutual targeting of oil refineries and oil tankers. In this regard, despite the Security Council calling upon both Parties to ‘refrain from any action that may endanger peace and security as well as marine life in the region of the Gulf ’,187 the belligerents went on to do the exact opposite and sink 227 ships in the so-called ‘Tanker War’ between 1984 and 1987. Out of the 227 vessels that were sunk, 153 were oil tankers. These attacks, supplemented by attacks on oil refineries, resulted in more than two million barrels of oil escaping into the Gulf.188 Ronald Reagan (1911–2004) suggested that hitting oil tankers ‘had not gone beyond the bounds’ in international conflicts as they were legitimate targets.189 Moreover, both Iran and Iraq were drawing on strong precedents in this area; that is, the targeting of oil resources which was a feature of the First World War and a defining feature of the Second World War. Oil facilities were also key targets in the Vietnam War and multiple conflicts including, inter alia, those with Rhodesia, South Africa, Chechnya, and Nicaragua.190 At all points, such targeting was not condemned for its environmental impacts. For example, with the 1986 International Court of Justice Case Concerning Military and Paramilitary Activities in and Against Nicaragua, the repeated Contra attacks on oil terminals were condemned as violations of Nicaraguan sovereignty. They were not condemned because of their environmental legacy, which was not even considered in the ICJ deliberations.191 Moreover, when the International Criminal Tribunal for the former Yugoslavia was asked to review the NATO bombing practices on oil facilities, they refused to condemn the practice, noting ‘the targeting by NATO of Serbian petrochemical industries may well have served a clear and important military objective’.192 The second, more direct, use of scorched earth policies involved both sides targeting, trying to acquire or monopolise, or utilising sources of fresh water for military purposes or destroying the natural base that people depend upon for existence. With   S/RES/540 (1983, Oct 31) Note also, S/RES/552 (1984, June 1).   Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper ) 272. Pearce, F (1991) ‘Gulf War Could Mean Largest Ever Oil Spill’ New Scientist (19 Jan 1991) 4; Karsh, E (2002) The Iran-Iraq War (London, Osprey) 24, 26–29; Hiro, D (1991) The Longest War: The Iran-Iraq Military Conflict (London, Routledge) 42–43, 47, 99, 129–30. 189  Hiro, D (1991) The Longest War: The Iran-Iraq Military Conflict (London, Routledge) 159. 190   For WWI, see Cruttwell, C (1934) A History of the Great War (Oxford, Clarendon Press) 287–98. For WWII, Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 57, 90,138 Directives 9, 20 and 32; Vandiver, F (2003) 1001 Things Everyone Should Know About World War II (NYC, Broadway) 46; Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 279; Ireland, B (2002) War at Sea: 1914–45 (London, Cassell) 140–41; White, D (2006) Bitter Ocean (London, Headline) 7, 16, 60, 77, 78, 107; Tucker, S (1998) The Encyclopaedia of the Vietnam War (Oxford, Oxford University Press) 234, 363; Bregman, A (2004) Israel’s Wars. A History Since 1947 (London, Routledge ) 95; Corbett, R (1986) Guerrilla Warfare (London, Orbis) 154, 158, 173; Gilligan, E (2010) Terror in Chechnya (New Jersey, Princeton University Press) 41. 191   Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 70 at 81. 192  Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (13 June 2000) at [22]; Turner, J (1998) Continent Ablaze: The Insurgency Wars in Africa (London, Cassell) 27. 187 188

Two New Conventions and the Additional Protocols 91

regard to the latter, this was notable in the wars in El Salvador and Guatemala when villages which were believed to be sympathetic to insurgents were burnt to the ground, along with all of the food supplies. In some regions of Guatemala, between 70 and 90 per cent of all villages were destroyed for these reasons.193 With regard to the former, and the diversion of water, the foremost examples in this period were in Iraq. This process began when the Iraqi authorities built a giant artificial barrier of water in an attempt to rearrange the rivers of the area and annex a crucial waterway to an oil-rich province in Iran.194 Buoyed by the clear advantages such practices offered, Saddam Hussein (1937–2006) went on to utilise similar practices in his own country against dissident groups. As such, the lower Mesopotamian marshlands in Southern Iraq, the largest wetlands in the Middle East, fed by water and silt pouring out from the mountains of Turkey and Iran, were largely destroyed by diverting the Euphrates and regulating the Tigris. These works, combined with Turkey’s construction of dams upstream, dried out at least 90 per cent of the marshes. The effects upon the people with whom Saddam was locked in civil war were dramatic as their habitat slowly disappeared. It was only with the reclamation policies of the Coalition forces in 2003, after their invasion of Iraq that rejuvenation of this area began.195 Before the habitats noted above could be restored fully, the Iraqi administration responsible for these acts was brought to justice before the Iraqi Special Tribunal. However, the tribunal only recognised the practice of scorched earth as a war crime when causing ‘widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ in international conflicts. That is, this was not recognised as crime for non-international conflicts.196 However, it was for, inter alia, the destruction of the physical resource base of the community of Dujail that Saddam and some of his leading generals were held accountable. In particular, Taha Yassin Ramadan (1938–2007) was convicted for crimes against humanity under ‘other inhumane acts’ in relation to the destruction he authorised of the palm groves, orchards and vineyards of Dujail. The destruction of these resources was seen as ‘intentionally causing great suffering, or serious injury to the body or to the mental or physical health’.197 Hussein may have foreseen such possibilities because, during his war with the United Nations over his invasion of Kuwait, he was brought to account for some of the envir­ onmental damage he caused. In large part this was because the methods he utilised to achieve his policies were novel in both size and intention. That is, unlike with the oil pollution caused by the tanker war with Iran, the oil pollution caused in the First Gulf War was intentional – but done for the purposes of assisting his retreat. To achieve this  Historical Clarification Commission (1999) The Guatemala Memory of Silence (Guatemala) 82, 92–94.   Karsh, E (2002) The Iran-Iraq War (London, Osprey) 28; Fend, P ‘Iraq’s Secret Weapon: Water’ New Scientist (17 Jan 1985) 10; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper ) 228. 195   Anon ‘Bliss in the Garden of Eden’ New Scientist (9 Sept 2006) 7; Anon ‘Iran Threatens Iraqi Marshes’ New Scientist (26 Feb 2005) 4. Anon ‘Iraq’s Neglected Crisis’ New Scientist (14 Feb 2004) 5; Anon ‘Return of the Iraqi Wetlands’ New Scientist (31 July 2004) 4; Furlow, B ‘A Struggle For Eden’ New Scientist (26 April 2003) 14–15; Randerson, J ‘Iraqis Reclaim Their Ancient Wetlands’ New Scientist (4 Oct 2003); Anon ‘Future Looks Bleak for Iraq’s Fragile Environment’ New Scientist (15 March 2003) 12; Pearce, F ‘Draining Life from Iraq’s Marshes’ New Scientist (17 April 1993) 11. 196   See Iraqi Special Tribunal, Art 13(b)(5). 197  Newton, M (2008) Enemy of the State: The Trial and Execution of Saddam Hussein (London, St Martin’s Press) 27–31, 181–83. 193 194

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he ordered the coordinated setting fire of some 652 Kuwait oil wells in late February, 1991 (and did a similar, but smaller scale act in 2003). The last oil well extinguished from the First Gulf War was in November 1991. Iraqi forces also sank three oil tankers and pumped oil directly into the sea from an offshore tanker loading facility, an action which led to about 10 million barrels of oil being emptied into the marine environment. Exactly how much oil was burnt is a matter of uncertainty, but some estimates put it in the region of six million barrels per day. Whilst the impacts on local and regional air and ocean pollution and global climate change were, despite their aesthetic effects, problematic, but not as bad as feared, other unforeseen impacts were worse than expected.198 That is, the primary ecological impact was not in terms of air or ocean pollution, but in the pollution of the fresh water sources which occurred when the fires were put out. The mistake was found in the oil that spilt into the desert as a result of failed attempts to set alight 75 of the oil wells (and some oil just gushed instead) and as a result of the capping process, in which the fires were knocked out first, and then the well itself was capped later. The end result was that about 55 million barrels of oil forming small lakes, typically no more than a metre deep, in the desert and other terrestrial environments. These lakes came to cover some 49 square kilometres. Eventually, much of this oil came to destroy soils, wildlife, and most importantly, made its way through to a number of water tables. By 2003 Kuwait (a country with less water per head than any other) had lost 40 per cent of the water supply than it had in 1991.199 Aside the environmental damage that was caused, setting alight the oil wells, arguably, hampered the Allied aerial attacks and the oil in the water hampered naval actions. However, whether the damage caused by the Iraqis breached the standards set in Additional Protocol I or the ENMOD Convention is debatable, if not unlikely. Indeed, the American position was that although Hussein’s scorched earth policies only had minimal impact in terms of military value, and the same impacts could have been achieved with much less destruction, the acts themselves would probably not breach the standards set by Protocol I due to the fact that the damage would have had to last ‘decades’.200 Similarly, when the Parties to the ENMOD Convention examined these acts, they concluded it was an ‘open question’ as to whether their Convention had been violated as the results, possibly despite the intentions of the instigator of the acts, were not sufficiently widespread, long-lasting and severe.201 From such thinking, the subsequent United Nations and then NATO attacks on oil and petroleum plants in the former 198   Pearce, F ) ‘Gulf Fisheries Still Suffering in Wake of War’ New Scientist (20 March 1993) 10; Pearce, F ‘Kuwait’s Oil Wells Send Smoke to Iraq’ New Scientist (2 March 1991) 8; Joyce, C ‘The Battle To Stop the Gulf from Choking’ New Scientist (23 March 1991) 14–15; Pearce, F ‘Desert Fires Cast Shadow Over Asia’ New Scientist (12 Feb 1991) 12-13; Joyce, C‘Soot From Burning Wells Will Not Upset Climate’ New Scientist (6 July1991) 16; Pain, S ‘Is Kuwait’s Foul Air Fit to Breathe?’ New Scientist (26 Oct1991) 13; Pearce, F )‘Wildlife Choked by World’s Worst Oil Slick’ New Scientist (2 Feb 1991) 4; Sheppard, C ‘Will Marine Life Survive the Gulf War?’ New Scientist (9 March 1991) 30. 199   Anon ‘Future Looks Bleak for Iraq’s Fragile Environment’ New Scientist (15 March 2003) 12; Anon ‘The Al-Ratka Oilfield’ The Bulletin (1 April 2003) 21; Pearce, F ‘Oil From Kuwaiti Wells Still Pouring Into the Desert’ New Scientist (9 Nov 1991) 14. 200   Department of Defence Report to Congress on the Conduct of the Persian Gulf War, 31 ILM (1992) 612. 201  3 YBIEL (1992) 219; Schmitt, M (2002) ‘War and the Environment: Fault Lines in the Prescriptive Landscape’ In Austin, J (ed) The Environmental Consequences of War (Cambridge, Cambridge University Press) 87, 109.

Two New Conventions and the Additional Protocols 93

Yugoslavia were not considered crimes when independently examined, due to the strong military advantages that arose from such attacks and because the resultant damage was not going to take more than ‘years’ to rectify. As such, it could not be classified as being in breach of either Protocol I or the ENMOD.202 This conclusion led to multiple calls for a new convention for the environment, akin to the Hague Convention on the Protection of Cultural Property in Times of War.203 The countries present at the 1992 Earth Summit even suggested that ‘States shall therefore respect inter­national law providing protection for the environment in times of armed conflict and co-­operate in its further development, as necessary’.204 The words ‘as necessary’ gave more than enough leeway and no additional instruments or emphasis were added.205 The exception to this failure to take environmental destruction in times of war seriously was with regard to Iraq’s actions in the First Gulf War. Although Iraq’s actions were probably not breaching the threshold of Additional Protocol I or the ENMOD, they were still viewed as repugnant. Accordingly, the Security Council affirmed that Iraq was ‘liable under international law for any direct loss, damage – including envir­ onmental damage and the depletion of natural resources . . . as a result of their unlawful invasion and occupation of Kuwait’. The Security Council then went on to create a fund and Compensation Commission to provide recompense for claims related to this (and other) Iraqi acts.206 Kuwait, Saudi Arabia and Iran were recognised as the potential claimant nations, and over the next 18 years, some 109 claims directly related to environmental damage were recognised as deserving of compensation, of which a total of US$5.3 billion was distributed.207 A second example of change in this in this area followed the release of an estimated 12,000 to 15,000 tons of fuel oil that were released into the Mediterranean Sea following the bombing by the Israeli air force of the Jiyeh power station during the conflict between Israel and Lebanon in 2006. After this oil spill, the General Assembly (not the Security Council) called upon the government of Israel to assume responsibility for ‘prompt and adequate compensation to the Government of Lebanon for the costs of repairing the environmental damage’ caused by the environmental destruction that resulted from their targeting. To facilitate this, the General Assembly even set up the Eastern Mediterranean Oil Spill Restroration Trust fund for voluntary contributions.208 Despite the compensation derived from Iraq for some of its scorched earth policies, and the attempts of the General Assembly to force Israel to assume responsibility for some of the environmental damage it has caused, the overall lacuna in this area   UNEP (2008) From Conflict to Peacebuilding (Nairobi, UNEP) 16.   UNGA Res 47/37 (1992). Protection of the Environment in Times of Armed Conflict: IUCN (1996) Resolution 75; Armed Conflict and the Environment (Montreal, 1st World Conservation Congress) Also, IUCN (2000) Resolution 97; A Marten’s Clause for Environmental Protection (Amman, 2nd World Conservation Congress); Pearce, F ‘Green Cross To Protect Environment In Time of War’ New Scientist (8 June 1991) 13. 204   Principle 24, Rio Declaration on Environment and Development UNCED Doc A/CONF. 151/5/ Rev. 1. 31 International Legal Materials (1992), 877. Note also Art 39.6 of Agenda 21. 205  3 YBIEL (1992) 219. 206   S/RES/687 (1991, Apr 3) also, S/RES/692 (1991, May 20). 207  UNEP (2009) Protecting the Environment During Armed Conflict (Nairobi, UNEP) 27; Sand, P (2005) ‘Compensation for Environmental Damage from the 1991 Gulf War’ Environmental Policy and the Law 35(6) 244–48. 208   UNGA Res (2009) 63/211 Oil Slick on Lebanese Shores. Also, (2007) 61/194. Reuters ‘Oil Slick From Bombed Lebanese Depot Threatens Mediterranean’ New Zealand Herald (8 Aug 2006) B1. 202 203

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became even more significant during the 1990s as new types of munitions, specifically depleted uranium, went on to test exactly what may be ‘widespread, long-term and severe damage’. Depleted uranium is the by-product of the uranium enrichment process. It is chemically identical to natural uranium, but most of the 235 isotope has been extracted leaving mainly the non-fissionable 238 isotope. This makes it 40 per cent less radioactive than natural uranium, but remarkably dense (1.7 times as dense as lead). This density makes it very attractive for the tips of armour-piercing shells because it can penetrate several inches of armour-plated steel, unlike traditional munitions made of tungsten. Due to such military benefits, depleted uranium ammunition has become widely used in post 1990 conflicts. An estimated 290 tons of such munitions were used in the First Gulf War, three tons in Bosnia and nine tons in Kosovo. It was also used in the more conventional aspects of the invasion of Iraq in 2003.209 Despite its military benefits, depleted uranium also appears to have associated envir­ onmental implications. These implications, which have been a concern to the General Assembly of the United Nations (who have called for studies in this area), are not yet fully understood.210 However, preliminary evidence suggests that depleted uranium munitions appear to affect the human body in terms of long-term genetic damage. This may be done in two ways. First, the dust caused by the depleted uranium shells upon impact may present an increased risk of lung damage. Assuming survival of the blast, inhaling five grams of the dust is estimated to be 55 times above the international safety limit, and would therefore double the risk of dying of lung cancer in the longer term. Second, battlefields contaminated with missed shots or vehicles destroyed with depleted uranium munitions can pose problems. This is not surprising as readings from within destroyed tanks can show radioactivity 2,500 times higher than normal and 20 times higher than normal in surrounding areas. Such residues may pose a longterm threat to the health of locals and children in particular. This secondary effect occurs because depleted uranium can filter through the soil and eventually contaminate ground water. As such, the risks of depleted uranium are largely driven by what happens to the destroyed target and the munitions embedded in the environment. For example, a United Nations Environment Programme study of depleted uranium in Bosnia and Herzegovina examined 14 sites and only three revealed signs of contamination. From these three, there was no evidence of widespread contamination of air pollution, ground water, turf, soil or biota except at the contamination point, which was no larger than one metre in distance. As such, there was deemed to be a very low contamination risk. However, long-term risks from depleted uranium penetrators which did not explode and were embedded in the ground could not be assessed, nor could destroyed vehicles which were quickly removed.211 209   Graham-Rowe, D ‘Depleted Uranium Casts A Shadow Over Peace in Iraq’ New Scientist (19 April 2003) 4–6; Edwards, R ‘One Too Many’ New Scientist (20 Jan 2001) 4; Anon ‘An Audit of War and Occupation’ New Scientist (3 July 2004) 8; Bertell, R (2000) Planet Earth: The Latest Weapon of War (London, Women’s Press) 20–21. 210   UNGA Res (2009) 63/54 Effects of the Use of Armaments and Ammunitions Containing Depleted Uranium. 211   UNEP (2003) Depleted Uranium in Bosnia and Herzegovina (Nairobi, UNEP) 48–53; Tickell, O ‘How War Debris Could Cause Cancer’ New Scientist 6 Sept 2008, 8–9; Anon ‘DU Dangers’ New Scientist (12 May 2007) 4; Anon, ‘Uranium Safety’ New Scientist (30 July 2005) 5; Graham-Rowe, D (2003) ‘Depleted Uranium Casts A Shadow Over Peace in Iraq’ New Scientist (19 April 2003) 4–6; Edwards, R ‘For Children, Depleted Uranium Shells are the Dirty Bombs’ New Scientist (27 July 2002) 5; Anon ‘Deadly Legacy’ New Scientist (16 March 2002) 9; Editor ‘Uranium Burgers’ New Scientist (20 January 2001) 3; Edwards, R ‘Dust Won’t Settle

Two New Conventions and the Additional Protocols 95

Due to, inter alia, the environmental concerns about depleted uranium when the rump of Yugoslavia attempted to question the legality of the intervention of 10 NATO countries in the Balkan conflict, one of their charges was that the use of depleted uranium weapons acted in breach of the obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage. However, the merits of these concerns were never examined, as the International Court of Justice, limited by its consent-based system of jurisdiction, declined to examine it.212 Moreover, when the Prosecutor for the International Criminal Tribunal for the former Yugoslavia reviewed the NATO bombing practices, they refused to condemn the use of depleted uranium munitions, noting that they were not specifically outlawed and that it was up to the international community to ban such weapons by drafting and adopting an ad hoc treaty on the matter.213 The difficulties in this area only multiplied in 1998 when the International Criminal Court was formed and it was agreed that it was a war crime, when engaged in an international (not necessarily internal) conflict, to: ‘Intentionally launch an attack in the knowledge that such attack will cause . . . widespread, longterm and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.214 The obvious difficulties here being not only the physical impacts of the crime which must be (as yet undefined) long term, widespread and severe, but also its mental element – namely that the damage is intended and with knowledge that the damage will occur – and finally, a justification element – in that military advantage (necessity) does not override it.215 Alternately, if the damage cannot be justified by military necessity for defensive reasons, but is linked to the commission of illegal crimes such as genocide, the destruction must be linked directly to the crime. Of course, proving such a linkage may be very difficult. This problem was demonstrated in the case brought before the International Criminal Court against President Omar Al-Bashir for the act of genocide, by deliberately inflicting upon the Fur, Masalit and Zaghawa ethnic groups conditions of life calculated to bring about their physical destruction. These conditions of life resulted from severe environmental degradation and depletion of natural resources. The Prosecutor alleged that the attackers: [D]estroy all the target groups’ means of survival, poison sources of water including communal wells, destroy water pumps, steal livestock and strip the towns and villages of household and community assets. As a result of the attacks, at least 2,700,000 people . . . have been forcibly expelled from their homes . . . [the attacks were designed to] . . . destroy the very means of survival of the groups as such. The goal was to ensure that those inhabitants who were not killed outright would not be able to survive without assistance.216 On Depleted Uranium’ New Scientist (26 May 2001) 6; Edwards, R ‘One Too Many’ New Scientist (20 January 2001) 4; Mackenzie, D ‘After the War is Over’ New Scientist (20 January 2001) 5; Anon ‘Uranium Probe’ New Scientist (29 Jan 2000). 5; Edwards, R ‘Too Hot To Handle’ New Scientist (5 June 1999) 20; Fetter, S ‘After the Dust Settles’ Bulletin of Atomic Scientists (Nov 1999) 42–45. 212   See ICJ (2000) The Work of the ICJ 1999-2000 (Netherlands, ICJ) 182. 213   See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia 39 ILM (2000) 1257. 214   ICC, Art.8(b)(iv). For the question of internal wars, see 9 YBIEL (1998) 169. 215   See Drumbl, M (2002) ‘Waging War Against the World: The Need to Move From War Crimes to Environmental Crimes’ In Austin, J (ed) The Environmental Consequences of War (Cambridge, Cambridge University Press) 620–46. 216   Situation in Dafur ICC-02/05-157-AnxA. Public Redacted Version of the Prosecutors Application Under Art 58. (14 July 2008) at [14] –[15].

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Although the Pre-Trial Chamber of the International Criminal Court accepted that there were reasonable grounds to believe that the government forces of Sudan had, at times, contaminated the wells of the ethnic groups mentioned, ‘there was no reason­ able grounds to believe that such a contamination was a core feature of their attack’. Accordingly, the charge of genocide, as directly related to scorched earth, was dismissed.217 8.  Starvation in War Between

1980

and the Twenty-First Century

Starvation, as a result and method of warfare, was practised in a number of conflicts in diverse parts of the world between 1960 and 1990. In East Timor, following its invasion by Indonesia between 1975 and 1999, an estimated 84,200 people died due to hunger and illness in excess of the peacetime baseline for these causes of death. The overwhelming majority of these deaths occurred between 1977 and 1979, when Indonesian armed forces systematically destroyed or removed food crops, food stores, agricultural implements, gardens, fields and livestock belonging to East Timorese people. This was done for reasons of punishment or as a means to ensure that they did not stray beyond tightly confined limits to where the insurgents were operating. At the same time, although a small amount of aid was allowed in through the Indonesian Red Cross, the Indonesian Government refused permission for any international humanitarian aid from the day of its invasion until late 1979.218 Following through, the 1980s were not particularly progressive when it came to considerations of the control or manipulation of food supplies in times of war. This problem became notable during the Israeli invasion and siege of Beirut in 1982 where, although they were only bombing the areas where the Palestinian Liberation Organisation (PLO) was hiding, they also cut off the water and stopped food from reaching the besieged population. This situation became so serious that the Security Council had to urge all Parties, and especially Israel, to lift the blockade of the city and facilitate, with the help of relief agencies, the distribution of aid to the trapped civilians.219 Given that Israel would follow very similar policies in subsequent conflicts in Palestinian areas in 2002 and 2009, the Security Council would again have to make similar calls, allowing for the urgent access of medical and humanitarian organisations into besieged areas. These calls were heightened due to the Israeli practice of attacking, inter alia, places of food production, water installations and sewage treatment within Gaza in the conflict of 2009.220 Although the Security Council was able to navigate through the Cold War politics of the 1980s to at least address the issues in the Middle East, unsurprisingly, its voice was absent in the wars in both Afghanistan and Ethiopia, in which the Soviet Union 217   Decision of the Prosecution’s Application for a Warrant of Arrest (Prosecutor v Omar Al-Bashier) [2009] ICC02/05-01/09-3 at 207. 218  Commission for Reception, Truth and Reconciliation Timor-Leste (2005) Chega! (CRTP, Faber) 72–86. The Executive Summary for this report is found at http://www.etan.org/etanpdf/2006/CAVR/ Chega!-Report-Executive-Summary.pdf. 219   S/RES/512 (1982, June 19); S/RES/513 (1982, July 4); S/RES/515 (1982, July 29); S/RES/518 (1982, Aug 12); Bregman, A (2004) Israel’s Wars. A History Since 1947 (London, Routledge ) 173. 220   The Goldstone Report. A/HCR.12/48. Note also,S/RES/1405 (2002, Apr 19); Anon ‘Gaza’s Food Crisis’ New Scientist (7 Feb 2009) 7.

Starvation in War 1980 – 21st Century 97

had a partisan stake. This became a particular problem in Afghanistan when the Soviets decided to disengage from traditional warfare and concentrate on killing off livestock, destroying fields and crops and forcing people from their villages. This policy had such an impact that by the middle of 1984, 3.5 million refugees had fled to Pakistan and another million had crossed the border into Iran. A further two million were internally displaced, most of whom fled to the cities.221 Similar approaches were followed in Africa. In Angola, between 1975 and 1992, an estimated 600,000 people starved to death as the opposing sides carefully controlled who was fed, and who was not. Tens, if not hundreds, of thousands more died by the same processes in Mozambique as the control of food and the resources of sustenance were strictly controlled in the war between the insurgents and the government. In terms of sheer numbers of people starving to death because of methods of warfare, the famine in Ethiopia of 1983 to 1985 was probably the largest in Africa in the twentieth century. When viewed over the 30-year period from 1961 and the success of the Marxist revolution, as many as 1.5 million would die from starvation. Warfare in this period saw, within the areas of insurgency, the forced relocation of people within food producing areas and the targeting of food supplies and markets and transport systems so as to stop the trade in food. As such, the principal cause of the famine was the counter-insurgency campaign of the Ethiopian military. The zone of severe famine coincided directly with the war zone. In addition, the Ethiopian government banned the intervention by humanitarian organisations into some regions held by insurgents, and then ring-fenced some of these places trapping and killing those trying to escape. Moreover, following the strong international attention to this famine, much of the food aid that was allowed into Ethiopia was then manipulated by government forces to achieve military and political objectives.222 Unperturbed by the worldwide reaction to such practices, at the end of the decade during the siege of Asmara, the capital of what was to become Eritrea, the Ethiopian government, again, showed little interest in allowing the provision of humanitarian assistance for the besieged civilian population.223 When the First Gulf War began in 1991, the United Nations forces used traditional types of air attacks against both food and water sources. Food warehouses, diary factories, flour milling facilities and grain storage warehouses were all struck. Although they assiduously avoided bombing large waterworks, they still managed to put almost every large water installation in the city of Baghdad out of action because they all needed electricity to pump water and the allied forces launched more than 50 bombing attacks on the city’s 21 power stations. This action, which is often seen in other contemporary conflicts except where water is attacked directly, exposed civilians to thirst, dehydration and potentially life-threatening diseases, such as cholera, typhoid, hepatitis and dysentery. However, it was only after the war had ended that these impacts upon civilians, when combined with the embargo placed upon Iraq which prevented them from 221   Feifer, G (2009) The Great Gamble, The Soviet War in Afghanistan (NYC, Harper) 139, 169; Harclerode, P (2002) Fighting Dirty (London, Cassell) 548. 222   Kaplan, R (2003) Surrender or Starve (NYC, Vintage) 10–13, 20, 27–32, 34–40, 46, 75–80, 93–94, 109, 116–20; Waal, A (1997) Famine Crimes (Indiana, Indiana University Press) 106–32; Human Rights Watch (1991) Evil Days: Thirty Years of War and Famine in Ethiopia (NYC, HRW) 1–15; Turner, J (1998) Continent Ablaze: The Insurgency Wars in Africa (London, Cassell) 91–92, 96–98, 117, 126, 145, 154–55, 184–85, 189; Human Rights Watch (1992) Conspicuous Destruction: War, Famine and the Reform Process in Mozambique (NYC, HRW) 102–35. 223  Human Rights Watch (1990) Two Hundred Days in the Death of Asmara (NYC, HRW) 1, 12–17.

98  Starvation

repairing their water installations and even obtaining some of the chemicals necessary for purification purposes, began to escalate, and thousands of civilians may have died as a result.224 This was a particularly unfortunate problem as the United Nations had from the outset, despite its embargo placed upon Iraq for its invasion of Kuwait, made clear that the embargo did not cover ‘supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs’.225 As such the Security Council agreed to keep a watching brief on the humanitarian situation, with ‘particular attention [to] be paid to such categories of persons who might suffer, such as children under 15 years of age, expectant mothers, maternity cases, the sick and the elderly’.226 Following the 1991 war, it was again clear that medicines, foodstuffs ‘and supplies for essential civilian needs’ would be exempted from the ongoing embargo.227 However, in the interregnum between this period and the Second Gulf War, there was a continuing set of difficulties and reorganisations of arrangements, in the quest to ensure that the funds being set aside from the controlled sale of Iraqi oil were being utilised correctly, in terms of both corruption and ensuring that the Iraqi citizens received what was essential to meet their basic needs. These difficulties resulted in what the British medical journal The Lancet suggested was 567,000 Iraqi children dying because of the sanctions.228 The core of the above point is that the Security Council was taking the clear view that a civilian population under a national embargo should not be denied the basic fundamentals. This should be underlined as this recognition led to two clear developments. First, the Security Council came to recognise explicitly that when acting under Article 41 of the Charter, it was necessary to give consideration to the impact on the civilian population, and especially children ‘in order to consider appropriate humanitarian exemptions’.229 Accordingly, when sanctions or embargoes were agreed against Libya,230 North Korea,231 Haiti,232 the former Yugoslavia,233 the Taliban operating in Afghanistan234 or the National Union for the Total Independence of Angola (UNITA) 224  Human Rights Watch (1991) Needless Deaths in the Gulf War (NYC, HRW) 7–9; Pearce, F ‘Water in the War Zone’ New Scientist (17 Dec 1994) 13–14; ICRC ‘Water in Armed Conflict’ in Sassoli, M (1999) How Does Law Protect in War? (Geneva, ICRC) 458–59; Boutruche, T (2000) ‘The Status of Water in the Law of Armed Conflict’ IRRC 840, 887–916; Forsythe, D (2005) The Humanitarians: The International Committee of the Red Cross (Cambridge, Cambridge University Press ) 105; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper ) 864–70, 909; Zemmali, A (1995) ‘The Protection of Water in Times of Armed Conflict’ IRRC 308, 550–64. 225   S/RES/661 (1990, Aug 6). 226   S/RES/666 (1990, Sept 13). 227   S/RES/706 (1991, Aug 15); Also, S/RES/ 687 (1991, Apr 3); S/RES/712 (1991, Sept 19). 228   Zaidi, S ‘Health of Iraqi Children’ The Lancet (2 December 1995) 356. For the Security Council conclusions, see S/RES/986 (1995, Apr 14). Note, the Memorandum of Understanding on the Sale of Iraqi Oil, Implementing SC Resolution 986 can also be found in 35 ILM (1996); 1095S/RES/1111 (1997, June 4); S/RES/1129 (1997, Sept 12); S/RES/1143 (1997, Dec 4); S/RES/1153 (1998, Feb 20); S/RES/1158 (1998, Mar 25); S/RES/1175 (1998, June 19); S/RES/1210 (1998, Nov 24); S/RES/1242 (1999, May 21); S/RES/1266 (1999, Oct 4); S/RES/1281 (1999, Dec 10); S/RES/1293 (2000, Mar 31); S/RES/1302 (2000, June 8); S/RES/1330 (2000, Dec 5); S/RES/1360 (2001, July 3); S/RES/1352 (2001, June 1); S/RES/1382 (2001, Nov 29); S/RES/1409 (2002, May 14); S/RES/1443 (2002, Nov 25); S/RES/1447 (2002, Dec 4); S/RES/1454 (2002, Dec 30). 229   S/RES/1265 (1999, Sept 17). 230   S/RES/748 (1992, Mar 31). 231   S/RES/1718 (2006, Oct 14). 232   S/RES/841 (1993, June 16). 233   S/RES 757 (1992, May 30); S/RES/820 (1993 Apr 17); S/RES/942 (1994, Sept 23). 234   S/RES/1333 (2000, Dec 19).

Starvation in War 1980 – 21st Century 99

in Angola,235 it was always clear that the sanctions did not cover humanitarian considerations, and especially, the blocking of food supplies. Going one step further, the second development in the post Cold War environment was the collective recognition that civilians in times of conflict should not be starved to death as an incidental by-product of war. The best examples of this new approach involved Somalia which was disintegrating with speed at the turn of the 1990s. The warfare within Somalia was particularly barbaric with belligerents commonly targeting relief columns and humanitarian assistance. ICRC planes were targeted, ICRC vehicles looted and humanitarian workers from the ICRC and other humanitarian organisations were shot at, and some were killed. There was, according to the ICRC, ‘a total lack of respect for the most elementary rules of combat’.236 It was estimated that the lives of 1.5 million people were at immediate risk and a further 3.5 million required urgent assistance, with 1,000 to 2,000 people dying of starvation daily in and around Mogadishu. The response of the Security Council was twofold. First, they ‘[S]trongly condemn[ed] all violations of international humanitarian law occurring in Somalia, including in particular the deliberate impeding of the delivery of food and medical supplies essential for the survival of the civilian population.’237 Second, they called upon all parties in the conflict to ‘permit the humanitarian assist­ ance to be distributed’.238 When this failed to occur they, for the first time ever, recognised that ‘the magnitude of the human suffering caused by the conflict . . . constituted a threat to international peace and security’.239 The ‘unimpeded delivery of humanitarian assist­ ance’ supplemented with ‘urgent airlift operations’ under the auspice of the United Nations, with a strong lead from the United States, occurred thereafter.240 Although the mission suffered after the United States opted to withdraw when encountering local resistance, the recognition that the starvation of populations within civil wars was not only contra to international humanitarian law, but may also constitute a threat to international peace and security which can trigger the intervention of the United Nations, should not be lost. Indeed, since this point, unimpeded and safe access for humanitarian access and facilitation of the distribution of relief supplies has been called for by the Security Council. Examples of this, post 1991 involve East Timor,241 in the conflict between Armenia and the Republic of Azerbaijan,242 Georgia and forces in Abkhazia,243 Afghanistan (from the mid-1990s until the United Nations intervention),244   S/RES/1127 (1997, Aug 28).  Rutherford, K (2008) Humanitarianism Under Fire: The US and UN in Somalia (Virginia, Kumarian) 17–18, 108. 237   S/RES/794 (1992, Dec 3); S/RES/746 (1992, Mar 17); S/RES/775 (1992, Aug 28); S/RES/923 (1994, May 31); S/RES/767 (1992, July 24); S/RES/775 (1992, Aug 28). 238   S/RES/733 (1992, Jan 23). 239   S/RES/746 (1992, Mar 17). 240   S/RES/746 (1992, Mar 17); S/RES/751 (1992, Apr 24); S/RES/767 (1992, July 24); S/RES/775 (1992, Aug 28); Rutherford, K (2008) Humanitarianism Under Fire: The US and UN in Somalia (Virginia, Kumarian) xv, 30, 39, 53; Human Rights Watch (1992) Somalia: No Mercy in Mogadishu (NYC, HRW) 18–27; Forsythe, D (2005) The Humanitarians: The International Committee of the Red Cross (Cambridge, Cambridge University Press ) 118–20; Waal, A (1997) Famine Crimes (Indiana, Indiana University Press) 168–78, 180–84. 241   S/RES/1264 (1999, Sept 15). 242   S/RES/822 (1993, Apr 30); S/RES/853 (1993, July 29); S/RES/874 (1993, Oct 14). 243   S/RES/876 (1993, Oct 19); S/RES/1187 (1998, July 30). 244  S/RES/1076 (1996, Oct 22); S/RES/1193 (1998, Aug 28); S/RES/1333 (2000, Dec 19); S/ RES/1383 (2001, Dec 6). 235 236

100  Starvation

Angola,245 Rwanda,246 Burundi,247 the Democratic Republic of the Congo,248 Eastern Zaire,249 Iraq (post 1991 and prior to the United States-led intervention),250 Liberia,251 Mozambique,252 Sierra Leone253 and Yemen.254 The other good examples of Security Council action in this area occurred during the conflicts of the former Yugoslavia, when the control of food and water became a common practice of the conflict. This was especially so in besieged areas like Sarajevo where not only were humanitarian relief columns subject to exclusion from besieged areas, but the targeting within such places often included areas that were designed to increase the pressure on civilians. For example, water lines were cut in 14 instances and some cities like Sarajevo suffered a 70 per cent loss in supply. The Security Council response to this was to call upon all parties to the conflict to allow for the effective and unhindered delivery of humanitarian assistance to civilian populations.255 These calls covered the Republic of Bosnia and Herzegovina,256 Croatia,257 Kosovo258 and even Albania.259 Despite the wide spread of these calls, it was the Bosnian Serb paramilitary units which were most strongly condemned by the Security Council for deliberate interdiction of humanitarian assistance convoys in ‘serious violation of international humanitarian law’.260 It was, in large part, because of these concerns that safe areas were established to help with the delivery of humanitarian assistance, and United Nations forces deployed to help with the protection and distribution of such assistance. This was especially the case with the besieged Sarajevo.261 The necessity for the ‘unhindered flow [of] . . . water . . . into safe areas’ was also highlighted.262 Similarly, the Security Council acted in a precautionary manner authorising their forces to establish

245   S/RES/811 (1993, Mar 12); S/RES/864 (1993, Sept 15); S/RES/922 (1994, May 31); S/RES/932 (1994, June 30); S/RES/890 (1993, Dec 15); S/RES/976 (1995, Feb 8). 246   S/RES/912 (1994, Apr 21); See Human Rights Watch (1994) Arms Trade and Violations of the Laws of War Since the 1992 Elections (NYC, HRW) 99, 102–104. 247   S/RES/1286 (2000, Jan 19); S/RES/1049 (1996, Mar 5). 248   S/RES/1234 (1999, Apr 9); S/RES/1258 (1999, Aug 6); S/RES/1291 (2000, Feb 24); S/RES/1341 (2001, Feb 22). 249   S/RES/1080 (1996, Nov 15). 250   S/RES/688 (1991, Apr 5). 251   S/RES/866 (1993, Sept 22); S/RES/911 (1994, Apr 21); S/RES/950 (1994, Oct 21); S/RES/1001 (1995, June 30); S/RES/1071 (1996, Aug 30) Note Art 17, Cotonou Agreement, Comprehensive Peace Agreement In Liberia. 252   S/RES/863 (1993, Sept 13) Note the Guiding Principles for Humanitarian Assistance, San Egidio, Rome, 16 July 1992. 253   S/RES/1132 (1997, Oct 8); S/RES/1260 (1999, Aug 11); S/RES/1270 (1999, Oct 22). 254   S/RES/931 (1994, June 29) Note, this problem also occurred in the twenty-first century, see Human Rights Watch (2008) Invisible Civilians: Humanitarian Access in Yemen’s Forgotten War (NYC, HRW) 12–29, 34–41. 255   S/RES/967 (1994, Dec 14). 256   S/RES/820 (1993 Apr 17); S/RES/859 (1993, Aug 24); S/RES/900 (1994, Mar 4); S/RES/970 (1995, Jan 12); S/RES/988 (1995, Apr 21); S/RES/998 (1995, June 16); S/RES/1004 (1995, July 12). 257   S/RES/994 (1995, May 17); S/RES/1009 (1995, Aug 10); S/RES/871 (1993, Oct 4). 258  S/RES/1160 (1998, Mar 31); S/RES/1199 (1998, Sep 23); S/RES/1202 (1998, Oct 15); S/ RES/1371 (2001, Sept 26); (1999, June 10); Human Rights Watch (2001) Under Orders: War Crimes in Kosovo (NYC, HRW) 145–47. 259   S/RES/1101 (1997, Mar 28); S/RES/1114 (1997, June 19). 260   S/RES/819 (1993, Apr 16). 261   S/RES/761 (1992, June 29); S/RES/764 (1992, July 13); S/RES/787 (1992, Nov 16); S/RES/998 (1995, June 16); S/RES/908 (1994, Mar 31); S/RES/900 (1994, Mar 4); S/RES/752 (1992, May 15); S/RES 757 (1992, May 30); S/RES/758 (1992, June 8); S/RES/764 (1992, July 13); S/RES/770 (1992, Aug 13). 262   S/RES/859 (1993, Aug 24); S/RES/871 (1993, Oct 4).

Starvation in War 1980 – 21st Century 101

control and security of various dams in the disputed areas, to ensure that they were not destroyed as some of the belligerents threatened.263 Whilst most of the above calls for allowing unimpeded humanitarian access have been relatively ad hoc, in some instances, such as with Sudan, the manipulation of food and humanitarian supplies have been a common part of the practice dating back to 1972. However, due to the geo-political influence of the Sudan and its veto-wielding friends on the Security Council, the practice of starvation and scorched earth was not recognised as a problem until it reached genocidal proportions in the new century.264 This recognition, to allow the supply of food and medical supplies to get through to civilians, was reiterated by the Security Council in the first decade of the twenty-first century with regards to Burundi,265 Chad,266 Cote d’Ivoire,267 the Democratic Republic of the Congo,268 Eritrea,269 Haiti,270 Iraq,271 Liberia,272 Sudan,273 and, once more, Somalia.274 Likewise, with the conflict in Lebanon in 2006 between Israel and Hezbollah, the Security Council called on all Parties to allow ‘humanitarian access to civilian populations, including safe passage for humanitarian convoys’.275 The developments of the Security Council during the 1990s and first decade of the twenty-first century were not only practised by key members of the Security Council, such as Russia in its war in Chechnya (of which access to international humanitarian relief was allowed), they were also supplemented by two other initiatives.276 First, the San Remo Manual was prepared during the period 1988–94 by a group of legal and naval experts participating in their personal capacity in a series of Round Tables convened by the International Institute of Humanitarian Law. The purpose of the Manual was to provide a contemporary restatement of international law applicable to armed conflicts at sea. Although not legally binding, its interpretations are influential. In this regard, when dealing with the topic of blockade, for the first time ever, it was clearly stated: If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to . . . the right to search . . . and the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.277   S/RES/779 (1992, Oct 2); Glenny, M (1996) The Fall of Yugoslavia (London, Penguin) 169.  Human Rights Watch (2006) Humanitarian Aid Under Siege (NYC, HRW) 12-23; Human Rights Watch (1993) War in South Sudan: The Civilian Toll (NYC, HRW) 3, 5, 6; Human Rights Watch. (2004) Civilian Devastation: Abuses By All Parties in the War in Southern Sudan (NYC, HRW) 34–40; Waal, A (1997) Famine Crimes (Indiana, Indiana University Press) 94–105. 265   S/RES/1545 (2004) May 21. 266   S/RES/1778 (2007) Sept 25. 267   S/RES/1528 (2004) Feb 27. 268   S/RES/1493 (2003), July 28. 269   S/RES/1622 (2005) Sept 3. 270   S/RES/1529 (2004) Feb 29. 271   S/RES/1472 (2003) S/RES/1476 (2003) S/RES/1483 (2003), S/RES/1770 (2007) Aug 10. 272   S/RES/1478 (2003), S/RES/1532 (2004) Mar 12. 273   S/RES/1556 (2004) July 30; S/RES/1574 (2004) Nov 19; S/RES/1590 (2005) Mar 24. 274   S/RES/1772 (2007) Aug 20; S/RES/1801 (2008, Feb 20); S/RES/1814 (2008, May 15). 275   S/RES/1701 (2006) Aug 11. 276   Gilligan, E (2010) Terror in Chechnya (New Jersey, Princeton University Press) 104. 277  International Institute for Humanitarian Law (1995) The San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge, Cambridge University Press) at [103] (25). 263 264

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The second major development occurred at the end of the 1990s when the International Criminal Court recognised as a crime against humanity278 and a war crime, when committed as part of a plan or policy or as part of a large-scale commission of such crimes: ‘Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions’.279 It was added that it was also a war crime to be involved systematically in: Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.280

The same rule of attacking humanitarian assistance provided in accordance with the Charter of the United Nations also applies to warfare of a less than international character,281 although the corresponding provision on ‘intentionally using starvation as a method of warfare’ is missing from this context. Nevertheless, although the law of the International Criminal Court did not stipulate as such, many scholars have argued that carrying out intentional starvation within civil wars is still a war crime under customary international law.282

  See Art 7(2)(b) Note, this linkage is due to when it is linked to an overall policy of extermination.   ICC, Art 8.b. (xxv). 280   ICC, Art 8(2)(b)(iii). 281   ICC, Art 8(2)(e)(iii). 282   Pejic, J (2001) ‘The Right to Food in Situations of Armed Conflict’ IRRC 83 1097–110; Rottensteiner, C (1999) ‘The Denial of Humanitarian Assistance As A Crime Under International Law’ IRRC 835 555– 82. 278 279

III Occupation 1.  The First Literate Civilisations

I

n pre-literate societies, it appears clear that rampages against noncombatants and the resulting massacre or destruction of entire communities of the losing societies were not uncommon (although evidence also suggests that women and children in many situations were spared after such conflicts due to their values for alternative purposes). These actions appeared to start once concentrations of people increased and resources became the subject of competition. Cave paintings from the Paleolithic Age (35,000–12,000 BCE), whilst largely showing peaceful scenes, also contain pictures of men fighting men with bows and arrows. By the time of the Mesolithic epoch, the impact of this type of fighting was starting to encompass noncombatants. For example, at Jabel Sahaba in upper Egypt, the skeletons of 59 people from around 12,000 years ago suggest they were massacred. This contention is possible because some 40 per cent of the skeletons, including females, had small flake points next to them (probably arrow heads) and four of them were stuck in their bones. In two of the cases, the points were on the inside of their skulls, suggesting that they had been shot, whilst lying on their back, through the throat or mouth. One young female had 21 chipped stone artifacts in her body. Such trends accelerated rapidly in the Neolithic Age, of which the earliest mass graves of men, women and children, all being victims of violence, are found. Thus, at Talheim in Germany, some 7,000 years ago, someone killed 34 people, half of them children, with stone axes, and threw their bodies in a pit. The bloodiest Neolithic massacre site is in the United States, at Crow Creek in South Dakota. Here, a mass grave contained 500 scalped and mutilated bodies.1 The differences between the pre-literate and the first literate societies do not appear to have been that great, although the technology and the formulation of rules were more advanced. The earliest representation of siege warfare is from a sculpture from Deshashe in Egypt around 2700 BCE.2 From this period, it appears to have been a well-established principle that it was necessary to first offer the chance of surrender to any besieged area about to be attacked. Thus, before the attack on the besieged area began, the besieged were meant to be offered an alternative. The alternative could be generous or harsh depending on the mood of the besieger and the defenders own

1   Carman, J and Harding, A (2009). Ancient Warfare (Glocestershire, The History Press)15–24, 57–59, 62–65, 77 79, 145, 149, 156; Keeley, L (1996) War Before Civilisation (Oxford, Oxford University Press) 65, 67–69, 86–88; Davie, M (1929) The Evolution of War (Boston, Yale University Press) 58–64, 96–102, 180– 182; Ferrill, A (1988) The Origins of War (London, Thames and Hudson) 23; Doyne Dawson, J (2001) The First Armies (London, Cassell) 52–56. 2   Doyne Dawson, J (2001) The First Armies (London, Cassell) 87; Keegan, J (1993) A History of Warfare (London, Hutchinson) 94–115.

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assessment of the options before them. The terms could range from allowing all of the people in the area to go free with all of their possessions and all of their arms, through to allowing them only to walk out alive and endure a life of slavery. These practices were clearly evident in all of the early civilisations of Mesopotamia, Egypt and Syria.3 Particularly devastating sieges appear to have occurred after 2275–2185 BCE, when the Akkadian Empire and the Old Kingdom of Egypt both collapsed around the same period. Ur was sacked around 2006 BCE and the Queen’s people were ‘led to slaughter’.4 Although some Sumerian rulers, such as Shulgi (c 2200 BCE) would claim that ‘no city was destroyed by me, no walls were breached by me’,5 such restraint would appear to be in the minority as across the region, from Palestine to Egypt, large-scale decline was evident and urban life largely disappeared. The Indus Valley was in decline from 2200 BCE and by 1800 BCE its major city at Mohenjo-Daro in Pakistan was deserted. By 1500 BCE, the entire civilisation had disappeared. In the late eighteenth century BCE, both the Egyptian Middle Kingdom and the Babylonian Empire fell apart, records failed everywhere, and the seventeenth and much of the sixteenth century BCE were something of a dark age. A very similar pattern occurred around 1200 BCE in the Eastern Mediterranean when at least 47 major sites in Greece, Crete, Anatolia, Cyprus, Syria and the Southern Levant were destroyed. It appears that combinations of drought, earthquakes, migrations and, most importantly, changes in warfare (in terms of the formation of large armies armed with iron, not bronze weapons) were responsible for what is known as ‘the catastrophe’ at the end of the Bronze Age. The only country in the region to escape ‘the catastrophe’ was Egypt. Accordingly, the records of this period are very important. From the sixth Egyptian dynasty, it is recorded that, after an expedition, the King ‘slew a great number there consisting of [the] chief ’s children and excellent commanders of [their leader]’.6 Thutmose I (1506– 1493 BCE) of the eighteenth dynasty recorded conflicts in Nubia in which ‘not a single survivor [was] among them’.7 Thutmose III (1479–25 BCE) recorded sieges in which, in the aftermath, the victims were not ‘tasting not the breath of life’.8 Amenhotep III (1386–49) would record in his Nubian War ‘making a great slaughter . . . male as well as female were not separated’.9 Ramses II (1279–13 BCE) recorded victories over a number of countries, including Israel, in which ‘their cities are made of ashes, wasted, desolated, their seed is not’. Ramses III (1186–55 BCE) also recorded victories in which not only the enemy leaders were slain but the ‘seed’, that is, the children, of his 3  Saggs, H (1962) The Greatness That was Babylon (NYC, Sidgwick) 194–200; Edwards, I (ed) (1971) The Cambridge Ancient History. Early History of the Middle East, 3rd edn, Vol 1(2) (Cambridge, Cambridge University Press) 360–62; Edwards, I (ed) (1975) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380–1000 BCE, 3rd edn, Vol II(2) (Cambridge, Cambridge University Press) 122. 4   Kramer, S (1963) The Sumerians. Their History, Culture and Character (Chicago, University of Chicago Press) 142. For similar sacks of the period, see Edwards, I (ed) (1971) The Cambridge Ancient History. Early History of the Middle East, 3rd edn, Vol 1(2) (Cambridge, Cambridge University Press) 428, 612, 642. 5   Kramer, S (1956) History Begins at Sumer (Philadelphia, Pennsylvania University Press) 261. 6   Inscription of Pepi II In Breasted, J (ed) Ancient Records of Egypt, 1988 edn, Vol 1 (London, Histories and Mysteries) 163. 7  Thutmose I in Breasted, J (ed) Ancient Records of Egypt, 1988 edn, Vol II (London, Histories and Mysteries) 30. 8   Thutmose III in Breasted, J (ed) Ancient Records of Egypt, 1988 edn, Vol II (London, Histories and Mysteries) 190. 9  Amenhotep in Breasted, J (ed) Ancient Records of Egypt, 1988 edn, Vol II (London, Histories and Mysteries) 340.

The First Literate Civilisations 105

enemies were also extinguished.10 Variations of such acts recorded by Ramses III were ‘their plant is uprooted, so that not one survives’ or, when speaking of invading peoples, ‘their people and their heirs upon the earth are vanished’. So as to make no mistake in the matter, he recorded that of his enemy captives ‘his son, his wife, his family are slain’.11 If such peoples were not slain, it was likely they would be enslaved and/or deported to distant provinces. Sesostris II (1906–1887 BCE) recorded that during his conflict against Nubia he ‘captured their women [and] carried off their subjects’.12 Ramses II, in his victory over the Libyans, recorded how the losers’ ‘women were taken before his face’.13 Somewhat reciprocally, following the capture of Ramses II baggage train by the Hittites in 1288 BCE, the Hittites allegedly gorged themselves on the jewels and women in the reserve.14 Ramses III and Thutmose III left records claiming that, with many of their war captives, they ‘filled’ certain provinces.15 Although such massacres, enslavements and/or deportations were the expected outcome of failed defences, the rule remained that an option for surrender was always first put to the threatened. For example, Piankhi of the twenty-third dynasty recorded how he warned the inhabitants of a besieged city: ‘Ye living in death . . . if an hour passes without opening to me, behind, ye are of the number of the fallen . . . close not the gates to your life . . . Love not death, nor hate life.’ This was clearly successful, as the inhabitants let the King and his army enter and although he took all of the possessions of the city, not one of the people therein was slain. Piankhi, realising the precedent value of this type of approach, continued the same practice with all other cities he besieged. When the city of Memphis refused his offer ‘a great number’ were slain after its walls had been breached.16 Of those lucky enough to survive such attacks, or those wise enough to surrender beforehand, it was expected that hostages would be handed over. The earliest utilisation of hostages I am aware of involves the holding of messengers in honour of a pledge from one king to another in Ancient Egypt in the Late Bronze Age (2200–1500 BCE).17 In other instances, the daughters or sons of powerful defeated allies were taken as hostages and had to prostrate themselves ‘crawling on all fours like a dog’ or ‘naked, crawling on their bellies’ before the king. Elsewhere the female hostages were entered into the royal harem, whilst the boys would be reared as pages in the Royal Court.18 10  Ramses III in Breasted J (ed) Ancient Records of Egypt, 1988 edn, Vols III and IV (London, Histories and Mysteries) 257–58; 21, 25. 11  Ramses III in Breasted J (ed) Ancient Records of Egypt, 1988 edn, Vol IV (London, Histories and Mysteries) 29, 60, 61; Saggs, H (1989) Civilisation Before Greece and Rome (New Haven, Yale University Press) 189–90. 12  Sesostris II in Breasted J (ed) Ancient Records of Egypt, 1988 edn, Vol 1 (London, Histories and Mysteries) 296. 13  Ramses II in Breasted J (ed) Ancient Records of Egypt, 1988 edn, Vol III (London, Histories and Mysteries) 260. 14   Durschmied, E (2002) From Armageddon to the Fall of Rome (London, Hodder) 29–30. 15   Thutmose III in Breasted J (ed) Ancient Records of Egypt, 1988 edn, Vol II (London, Histories and Mysteries) 67; Ramses III in Breasted J (ed) Ancient Records of Egypt, 1988 edn, Vol IV (London, Histories and Mysteries) 149, 202. 16   The Pianki Stela in Breasted J (ed) Ancient Records of Egypt, 1988 edn, Vol IV (London, Histories and Mysteries) 431, 435. 17   Cohen, R (2000) Amarna Diplomacy: The Beginnings of International Diplomacy (Baltimore, John Hopkins University Press) 220. 18  Edwards, I (ed) (1973) The Cambridge Ancient History. History of the Middle East and Aegean Region 1800– 1380 BCE 3rd edn, Vol II(1) (Cambridge, Cambridge University Press) 470–71; Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vol II (Histories and Mysteries, London) 77, 361.

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Such hostages could also be made to answer for the indiscretions of others in the future.19 From Assyria, the practice of offering terms before attacking continued. One record from around 742 BCE recorded ‘Behold! There are two ways before you: Choose as ye desire: open, and ye live, close, and ye die. My Majesty does not pass by a closed town’.20 If besieged peoples failed in their defences, all sorts of atrocities would befall them. Adad Nirari (1307–1275 BCE) recorded his flaying, throat cutting and impaling of defeated enemies.21 Tilgarth-Pileser I (1114–1076 BCE) boasted he ‘slit open the wombs of pregnant women; he blinds infants. He cuts the throats of the strong ones’.22 Assurnasirpal (883–859 BCE) recorded after one of his sieges: With the masses of my troops and by my furious battle onset I stormed, I captured the city; 600 of their warriors I put to the sword; 3000 captives I burned with fire; I did not leave a single one among them alive to serve as a hostage . . . Their corpses I formed into pillars; their young men and maidens I burned in the fire. Their governor, I flayed, his skin I spread upon the wall of the city . . . the city. . . . I destroyed, I devastated, I burned with fire . . .23

When he fell upon Damdamus, Assurnasirpal slaughtered 600 men in storming the city, and afterwards, crucified the 3,000 other survivors. In other instances, he cut off the hands, fingers, noses, and ears and blinded all of the survivors. He then set fire to groups of young men and women, before proceeding to completely destroy their city.24 Sargon II (reigned 722–705 BCE) also destroyed rebellious lands in which, following a siege, ‘not one escaped, great or small’.25 Moreover, to ensure that such risings would not happen again by denying the people the means of defence, the walls of all of the besieged areas would be razed and any attempt at rebuilding them was seen as a sign of revolt.26 Esarhaddon (681–669 BCE) recorded how in some instances when dealing with subdued rebellious cities, he had all of the captured soldiers killed, while in others he killed only the ringleaders and cut the limbs off the soldiers who opposed him.27 19  See Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vols I and II (London, Histories and Mysteries) 76, 80, 82–83; 417. Also, Edwards, I (ed) (1975) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380–1000 BCE, 3rd edn, Vol II(2) (Cambridge, Cambridge University Press) 459; Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 122–23, 376. 20  Noted in Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire1st edn, Vol III (Cambridge, Cambridge University Press) 272. 21   Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vol I (London, Histories and Mysteries) 125, 146. 22  Noted in Kern B (2001) Early Siege Warfare (Indiana, Indiana University Press) 83. 23   Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vol I (London, Histories and Mysteries) 146. Also, Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III, (Cambridge, Cambridge University Press) 12–13. 24   Luckenbill, D (ed) Ancient Records of Assyria and Babylonia Vol I (London, Histories and Mysteries) 147– 49, 151, 153, 168–69, 180–81; Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 16. 25   Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vol II (London, Histories and Mysteries) 18. 26  Postgate, J (1996) Early Mesopotamia: Society and Economy and the Dawn of History (London, Routledge) 252; Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vols I and II (London, Histories and Mysteries) 85, 79. 27   Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vol I (London, Histories and Mysteries) 157.

The First Literate Civilisations 107

If a defeated population were not massacred, it was likely they would be either enslaved or deported. In this regard, of all the pre-Greek civilisations, it appears the Assyrians were the most astute at this practice of moving around defeated peoples to serve the economic and political interests of the king. Assurnasirpal, Tiglath Pileser III and Sargon II all left records in this regard. Sargon II boasted he ‘tore them away from their homes and settled them [in other lands]’.28 Sennacherib did the same.29 Exactly how many people were deported from areas is a matter of debate, but the figure of 4.5 million is commonly given for the amount of living human bodies moved around the Assyrian empire after military activity. A number of these deportations are recorded in the Bible, such as when Jerusalem fell in 586 BCE.30 Exactly what happened to women in these situations is largely a matter of speculation, as there are few records on this topic at the very early parts of written history. There are, however, pictures painted on the walls of tombs from around 2200 BCE which show Egyptian soldiers, after successfully storming a defended area, carrying, slung over their shoulders, the young girls they had captured. A similar silence is also notable with the Assyrians. This is perhaps odd, as whilst the Assyrians were quick to boast of such achievements, they did not explicitly include rape within their boasts of conquest. This is an odd omission as the Assyrian sources are replete with numerous other cruelties, but are silent about rape. The absence of women in the scenes of naked prisoners is another sign of inhibition. This may have been because war rape following the sack of cities was not directly necessary as they had more formal ways of incor­ porating captured women into their culture, such as with their laws which contained provisions for Assyrian soldiers to marry women captured during times of conflict. This may also have been consistent with treatment of women as commodities during much of the Bronze Age. Thus, Zimri-Lin of Mari (1789–52 BCE) brought back women captives to serve as weavers and harem mates. Likewise in the 1300s, a pharaoh ordered one of his vassals in Canaan to buy him 40 ‘extremely beautiful’ females from the slave market (which was filled with defeated peoples), at a cost of 40 silver shekels each.31 Losing in battle after rejecting terms did not always mean that the vanquished were doomed. In a number of instances, despite being within their rights to do with the losers as they pleased, victors showed mercy to the vanquished. Sargon II is notable in this area, as were subsequent rulers like Tiglath Pileser I and Assurnasirpal. However, these acts of mercy were contrary to the general trend. Thus, when an Assyrian king writing to a local commander noted: You have written to me that you have taken the city of Tillabnim and have not slain the citizens of that village but that you have pacified them and permitted them to go. This deed 28   Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vol II (London, Histories and Mysteries) 3, 30, 94–95; Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 39, 51. 29   Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vols I and II (London, Histories and Mysteries) 169, 276, 284, 290; 116, 318, 326. 30  See 2 Kings 18:13 and 19:19. Note also Jeremiah 52:30. Dawson, D (2001) The First Armies (London, Cassell) 176, 182. Kelle, B (2007) Ancient Israel at War (Oxford, Osprey) 50–51, 56, 57, 82–83; Saggs, H (1989) Civilisation Before Greece and Rome (New Haven, Yale University Press) 177; Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 382–86, 399, 403–405. 31  Edwards, I (ed) (1971) The Cambridge Ancient History. Early History of the Middle East 3rd edn, Vol 1(2) (Cambridge, Cambridge University Press) 359; Strauss, B (2006) The Trojan War (NYC, Schuster) 28–29.

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which you performed was very commendable . . . Truly, in the past when you seized a city one did not know this procedure.32

2. Ancient Israel Emerging out of the great conflicts of the superpowers in the ancient Near East, the Bible came to both replicate, and set down some of the rules of war of the period ranging from the giving and taking of hostages through to the topic of siege warfare.33 On the latter topic, the existing rule was reiterated. Thus: When you draw near a city to fight against it, offer terms of peace to it. And if its answer to you is peace and it opens to you, then all the people who are found in it shall do forced labour for you and shall serve you. But if it makes no peace with you, but makes war against you, they you shall besiege it . . . and when the LORD your God gives it into your hand you shall put all its males to the sword, but the women and the little ones, the cattle and everything else in the city, all its spoil, you shall take as booty for yourselves.34

If a besieged area declined to accept the offer of surrender, they risked the absolute ire of the attacker if they were not successful in their defence. Whilst some examples of mercy are recorded in the Bible, such as when David captured Jerusalem (putting the losers to labour, not execution),35 wholesale violence against defeated populations is well recorded elsewhere. The usual formula in the Bible was ‘dashing out the brains of little ones’. The image of a soldier seizing a baby by the foot and smashing its head open against a rock is peculiarly horrific. However, this image is primarily given in prophecy as opposed to historical record, such as with the book of Isaiah.36 Nevertheless, a psalmist blessed a hoped-for enemy of Babylon with ‘happy shall be he who takes your little ones and dashes them against the rock’.37 In addition, with the fall of Jericho, when the city was stormed ‘then they utterly destroyed all in the city, both men and women, young and old, oxen, sheep and asses, with the edge of the sword’.38 King Menahem (745–736) of Israel went so far as to suggest that when he conquered a certain area ‘all the women therein that were with child he ripped up’.39 Where the Bible goes further than some contemporary civilisations was in its articulation for the blotting out of a certain groups of people who were ‘very far from thee, which are not of the cities of these nations’.40 Thus: [W]hen the Lord thy God shall bring thee into the land whither thou goest to possess it, and hath cast out many nations before thee, the Hittites, and the Girgashites, and the Amorites, and the Canaanites, and the Perizzites, and the Hivites, and the Jebusites, seven nations greater and mightier than thou; And when the Lord thy God shall deliver them before thee; 32  Assyrian king, quoted in Kern, B (2001) Early Siege Warfare (Indiana, Indiana University Press) 23. Also, Luckenbill, D (ed) (1989) Ancient Records of Assyria and Babylonia Vols I and II (London, Histories and Mysteries) 76, 80, 82–83; 156, 178–79; 13, 214–15, 232–33, 302–303. 33   I Maccabees 8:1, 6, 7. For examples of hostages within the Bible, see 2 Kings 24:15 and 25:27–30. 34   Deuteronomy 20:10–17. 35   1 Kings 9:20, 2 Samuel 12:30–31. 36  See Isaiah 13:16. 37  Psalms 137:9. 38   Joshua, 6:20–21. 39   2 Kings 8:12 and 15:16. 40   Deuteronomy 20:15 and 20:16–17.

The Greeks 109 thou shalt smite them, and utterly destroy them; thou shalt make no covenant with them, nor show mercy unto them.41

Exactly how far some of the language in some of these passages can be applied to the laws of war and the practice of siege warfare of the period is a matter of debate. At a minimum, it probably had some persuasive influence, such as when Saul’s failure to annihilate the Amalekites was later used as grounds for his failure to carry on as king.42 This refusal followed the clear instruction: ‘Now go, attack the Amalekites and totally destroy all that belongs to them. Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys’.43 The Philistines were also threatened with similar (but not as total) promises of conflict.44 Of course, it should also be remembered that the practice of many of the enemies of Ancient Israel was not that dissimilar to what appeared in the Bible. Indeed, in the Exodus account in the Bible, the birth of Moses occurred at a time when an unnamed Egyptian Pharaoh, fearing an uprising in the lands he controlled, had commanded that: ‘Every Hebrew boy that is born you must throw into the Nile, but let every girl live’.45 The question of rape within the Bible is more difficult to disentangle. This is because on the one hand, the imagery and fear of rape and of women being ‘ravaged’ if sieges were successful is clearly recorded in a number of Hebrew prophecies. For example, the Book of Zechariah recorded ‘for I [God] will gather all the nations against Jerusalem to battle, and the city shall be taken and the houses looted and the women raped’.46 Military defeats recorded similar atrocities.47 Despite the perceived horror of these situations, the Bible did not prohibit such acts. Rather, instructions were actually given on how to deal with women captured in times of conflict. Although rape was by no means mandated, it was made clear that the conquering warrior could claim females as his prize. Whilst it was recorded ‘a damsel or two for each man’ when dividing spoils,48 the Book of Deuteronomy added: When thou goest forth to war against thine enemies, and the Lord thy God hath delivered them into thine hands, and thou hast taken them captive. And seest among the captives a beautiful woman, and hast a desire unto her, that thou wouldest have her to thy wife, then thou shalt bring her home to thine house; and she shall shave her head, and pare her nails. And she shall put the raiment of her captivity from off her, and shall remain in thine house, and bewail her father and her mother a full month; and after that thou shalt go unto her, and be her husband, and she shall be thy wife. And if it shall be, if thou have no delight in her, then thou shalt let her go whither she will, but that shalt not sell her at all for money, thou shalt not make merchandise of her, because thou hast humbled her.49   Deuteronomy 7:1–2.   Carrol, R (1995) ‘War in the Hebrew Bible’ in Rich J and Shipley, G War and Society in the Greek World (London, Routledge) 22, 32. 43   1 Samuel 15:3; see also ; Carrol, R (1995) ‘War in the Hebrew Bible’ in Rich, J and Shipley, G War and Society in the Greek World (London, Routledge) 22, 38. Ravitzky, A ‘Prohibited Wars in the Jewish Tradition’ in Nardin, T (ed) The Ethics of War and Peace (New Jersey, Princeton University Press) 115, 119; Walzer, M (1996) ‘War and Peace in the Jewish Tradition’ in Nardin, T (ed) The Ethics of War and Peace (Princeton University Press, New Jersey) 95–106. 44  Exodus 23:31–33. 45  Exodus 1:22. 46   Zechariah 14:2; See also Isaiah 13:16. 47   2 Kings 8:12. 48  Numbers 31:18. See also Judges 5:30. 49   Deuteronomy 21:10–14. 41 42

110  Occupation 3. The Greeks

It is said that many of the Greek practices descended directly from the Persians. If this is the case, the Persians were also only reflecting the practices they had learnt from others. In this regard, the Persians are remembered for showing tolerance and allowing, amongst other things, some of their captive populations, such as the Hebrews, to return to their homelands.50 The Persians also utilised the practice of offering terms to besieged areas. If these were not accepted, the massacre of all the surviving civilians could be expected. Indiscriminate massacres followed the stormed cities of Lachish in 701 BCE, Thebes in 663 BCE, and Nineveh in 612 BCE. The brief words of the Babylonian chronicle noted: ‘A great havoc of the people and the nobles took place . . . they carried off the booty of the city, a quantity beyond reckoning, they turned the city into ruined mounds.’51 The destruction of Jerusalem in 586 BCE led to a large-scale exile of the people, and by either fleeing or being ‘carried away’ creating an ‘empty land’. A sack occurred with Babylonia in 539, of which Darius (550–486 BCE) concluded the uprising with the impalement of at least 3,000 of the most distinguished inhabitants of the city. Such behaviour may have been precedent following, for Xeres’ (519–465 BCE) forces had earlier burnt vanquished cities, plundered temples and violated women captives en masse.52 When the Greek city of Miletus fell to the Persians, every man was slaughtered, every woman was raped, all their daughters were enslaved and all of the boys were castrated. The seaboard quarter of the town was razed so effectively, it was never rebuilt. It was the same fate for the city of Eretria and the islands of Chios and Lesbos.53 Where the Greeks exceeded other early civilisations above all was in their recognition in the fifth to sixth century BCE that no member of the Delphic Amphictyony (all of the 11 Greek tribes that surrounded the oracle of the Delphi) could be wiped out entirely if conflict developed between them. As such, the first ruling against the destruction of entire ethnic groups can be traced to this period. In addition, the Greeks, including Alexander the Great (356–323 BCE), utilised the practice of offering terms to besieged areas before attacking them.54 The extent of the terms depended on those offering them, and could be surprisingly generous. For example, the treaty between Eupolemus and Theangela and its defenders on its capitulation in the year 310 BCE stipulated: For those who came over during the war there shall be an amnesty; to the artillerymen shall also be paid four months’ salary; all the soldiers who wish to depart shall be allowed to take their chattels with them.55 50  See Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 408–12; Watson, A (1972) The Evolution of International Society (London, Hall) 40–50. 51  Bury, J (ed) (1964) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 129, 285, 297; Roux, G (1964) Ancient Iraq (London, Penguin) 40–43. 52  Herodotus The History of Herodotus Vols I, II, trans Rawlson, J (1909) (London, Dent) 1:164, 3:147, 158–59; 6:9, 8:33, 8:127; Kelle, B (2007) Ancient Israel at War (Oxford, Osprey) 74. 53  Herodotus The History of Herodotus Vol I, trans Rawlson, J (1909) (London, Dent) 6.19. Note also, Kelle, B (2007) Ancient Israel at War (Oxford, Osprey) 87; Holland, T (2005) Persian Fire (London, Abacus) 168; Straus, B (2005) Salamis (NYC, Arrow) 35, 72. 54  Thucydides The History of the Peloponnesian War: Revised Edition trans Warner, R (1999) (London, Penguin) 34–40; Kagan, D (2003) The Peloponnesian War (NYC, Harper) 175; McCrindle, J (1896) The Invasion of India By Alexander the Great, 1969 edn (New York, Barnes) 262. 55   Treaty Between Eupolemus and Theangela in Austin, M (ed) (1992) The Hellenistic World From Alexander to the Roman Conquest: A Collection of Readings (Cambridge, Cambridge University Press) 61.

The Greeks 111

The giving of hostages as guarantors of any such agreed surrender was also a wellentrenched practice of the epoch. In some instances, if communities refused to hand over hostages, they would be attacked. This was most obvious with the Persian invasion of Greece in the sixth century BCE where communities who were meant to keep on side with the Persians would be besieged and their territory laid to waste if they failed to provide hostages as proof of their loyal intentions, until they reached the point of obedience. The taking of hostages, as collateral for good faith and not revolting against overlords, was also a Greek practice during their own inter-Greek wars. Thus, the giving of hostages by Chalkis to Athens was recorded in 446 BCE, after suffering their military loss, as guarantors of the peace.56 This practice is repeated in other Greek treaties throughout the fourth century BCE.57 In some instances, civilian hostages held by one side were executed when prisoners of war held by the other side had met the same fate.58 If terms of surrender were rejected, then extreme retribution upon the besieged non-combatants could be expected. In the Greek tradition, such acts first occurred around 1200 BCE (as noted above), when practically all the cities and palaces of the eastern Mediterranean basin north of Egypt were sacked and destroyed by enemies and the Mycenaean culture of the Aegean disappeared utterly, except in the hazy memories of Homeric poems.59 If terms were not accepted, the killing of all the men and the taking away of the women and children for slavery after a bastion was stormed was the background of most historical wars mentioned in the Illiad. In this regard, Achilles claimed he sacked no fewer than 23 cities in the Trojan War alone, whilst Odysseus proudly called himself the ‘sacker of cities’.60 When Troy fell Homer (c 850 BCE) recorded that King Priam watched his own sons and daughters being dragged away, along with all of the other innocents, before he was bludgeoned to death with the body of his grandson ‘in the hatefulness of war’.61 Aside instances like Troy, siege warfare was not common in early Greece (prior to 750 BCE). In part this was due to the fact that cities did not emerge in Greece until the eighth century BCE. The first known city to be destroyed fully was Asine, with its population expelled and its buildings razed to the ground by Argos. Melia, Arisbe and Nauplia were annihilated during the seventh century. Cirrha, Pellene and Donoussa, all on the Gulf of Corinth, were razed early in the sixth century. Another three cities, 56   Meiggs, R (ed) A Selection of Greek Historical Inscriptions to the End of the Fifth Century BC (Oxford, Oxford University Press) 142, 153. 57  See Rhodes, P (ed) Greek Historical Inscriptions 404–323 BC (Oxford, Oxford University Press) 77. 58  Herodotus The History of Herodotus Vol I, trans Rawlson, J (1909) (London, Dent) 1:64, VI:138. Kagan, D (2003) The Peloponnesian War (NYC, Harper) 242; Ormerod, H (1987) Piracy in the Ancient World (NYC, Dorset Press) 31, 32, 232; Bury, J (ed) (1969) The Cambridge Ancient History. Macedon, Vol VI (Cambridge, Cambridge University Press) 363, 445; Bury, J (ed) 1969 The Cambridge Ancient History. The Persian Empire and the West, 1st edn (Cambridge, Cambridge University Press) 235; Bury, J (ed) (1969) The Cambridge Ancient History. Athens, Vol V (Cambridge, Cambridge University Press) 185, 192. 59   Drews, R (1993) The End of the Bronze Age (New Jersey, Princeton University Press) 12–20, 34, 75–80. Edwards, I (ed) (1975) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380–1000 BCE, 3rd edn, Vol II(2) (Cambridge, Cambridge University Press) 663–71; Dawson, D (2001) The First Armies (London, Cassell) 90, 108–10, 120, 150. 60  Homer Iliad trans Rieu EV (1993) (London, Penguin) 6.447–65; Strauss, B (2006) The Trojan War (NYC, Schuster) 35, 90–93. 61  Homer Illiad trans Rieu, EV (1993) (London, Penguin) 22.58–71; Hedreen, G (2004) Capturing Troy (USA, University of Michigan Press) 64–68.

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Camarina, Siris and Sybaris, all in the western Mediterranean, were wiped out between 550 and 510 BCE.62 Overall, when viewing the course of the 100 sieges involving Greek cities between the sixth and second centuries BCE, it is possible to point to 25 ending in massacres and 41 on terms of deportation, the destruction of the city walls or the imposition of a garrison and the surrender of hostages. By the time of the fifth century BCE, although some scholars such as Euripides (480–406 BCE) would try to convince his audiences that the massacre of women and children after a siege was the ‘epitaph of Greek shame’,63 by the onset of the Peloponnesian Wars (431–404 BCE) the killing all of the men after a storming and the selling of any other survivors into slavery was common. Such practices also spilled over into the killing of women and children at Torone, Lecythus, Melos and Argos.64 In one notable incident Thracian mercenaries in the pay of Athens, sacked the town of Mycalessus. In doing so, they: ‘[S]acked the houses and temples, and butchered the inhabitants, sparing neither the young nor the old, but methodically killing everyone they met, women and children alike, and even the farm animals and every living thing they saw’.65 This type of problem was heightened when slave markets were flooded and there was little economic justification to keep captives alive. As it was, after a town was sacked, slave traders who had often taken delivery of thousands of people would simply abandon the smallest children and the aged by the roadside to die of starvation and exposure, or be killed by dogs or wolves. In addition, to ensure that the populations would remain vulnerable, it was common to insist that all of the defensive walls around an area be razed. This was a specific penalty imposed upon Athens, so that their citizens could no longer hide behind the might of their fortifications and deny the power of the Spartans.66 The war between Syracuse and Carthage (409–301 BCE) was particularly brutal. The Carthaginians crucified and impaled those within the defended areas that they took by storm. With the fall of Selinus ‘without distinction of sex or age or whether infant children or women or old men, they put them to the sword, showing no signs of compassion’.67 Dionysius I (432–367 BCE) replied in kind when he lost control of his (mercenary) troops who massacred the men, women and children they found inside cities with walls they breached, such as when Catana and Naxos were sacked. However, it was for his siege and sack of Motya in 392 BCE that he is most remembered. In this latter siege, his victorious troops massacred every human they found in the streets without regard to age or sex. This practice only stopped when Dionysius ordered the

  Van Wees, H (2009) Greek Warfare: Myths and Realities (London, Duckworth) 124.  Euripides The Trojan Women and Other Plays trans Morwood, J (2009) (London, Penguin) 1167. 64  Thucydides The History of the Peloponnesian War: Revised Edition trans Warner, R (1999) (London, Penguin) 4:116, 4:122–24:133, 5:3 and 6:116; Also, Kagan, D (2003) The Peloponnesian War (NYC, Harper) 108–12; 244, 249; Bury, J (ed) (1969) The Cambridge Ancient History. Athens, Vol V (Cambridge, Cambridge University Press) 57–60. 65  Thucydides The History of the Peloponnesian War: Revised Edition trans Warner, R (1999) (London, Penguin) 7.29. 66  Kagan, D (2005) The Peloponnesian War (NYC, Harper) 13–14, 37, 59, 101, 483; Thucydides The History of the Peloponnesian War: Revised Edition trans Warner, R (1999) (London, Penguin) 1.101 and 3.50; Xenophon Hellenica trans Carleton LB (1866) (NYC, Brownson) 2.2.19; Xenophon Agesilaus in trans Carleton LB (1866) (NYC, Brownson) 1.21–2. 67   Diodorus, S The Persian Wars to the Fall of Athens trans Green, P (2010) (Texas, University of Texas Press) 13:111–14, 13.57.2, 22.10.4. 62 63

The Greeks 113

slaughter of those found in certain sanctuaries to end because they had economic value as slaves.68 The Greeks were also notable for their forcing of defeated populations into exile. This was recorded in the Peloponnesian War, and by Dionysius I and Alexander the Great.69 Despite attempts to govern with mercy the peoples he conquered, the history of Alexander includes the capture of Thebes where there was a wholesale slaughter of men, women and children. Plutarch (46–120) recorded the event as one whereby: ‘The city was captured, plundered and razed to the ground.’70 Alexander’s calculation was that the Greeks would be so struck by the magnitude of the disaster that they would be frightened into submission and he sold all (apart from those who spoke against the revolt) into slavery, some 30,000 in all. The dead numbered over 6,000.71 Tyre was sacked after a seven-month siege during which over 8,000 defenders were killed, and 30,000 survivors sold into slavery. Gaza, Multan and other defying cities in India suffered exactly the same fate.72 The rape of the women on the losing side of a conflict was a well-recognised consequence of losing a war within Greek Antiquity. Rape in Greek law was viewed as a very serious affair, and concerns over this crime and its implications to Greek society were repeatedly raised in times of war. This first appears in the records dealing with the Persian invasion and their rape of Greek women, some of whom died from the repeated nature of the violation. Records added that the young girls were captured and placed in soldier brothels whilst their sons were castrated and turned into eunuchs. The luckier women, the sisters, wives and daughters of the defeated leaders, were swept up into the royal harems of Darius.73 Although the capture and rape of foreign women was recognised by the Greeks as a primary cause for conflict between nations, the practice was well-recorded in Greek histories. The legend of how Greece and Asia became enemies turned on the abduction of a Greek princess by Phoenician traders. The Greeks, instead of seeking justice by diplomatic means, resorted to tit-for-tat retaliation and abducted a Phoenician princess. The end of this process involved the Trojans taking Helen, Queen of Sparta. The story of Troy and the abduction and possible rape of Helen is a clearly repeated theme throughout the epic. Unlike the debate of what happened to Helen, what was not in historical debate was the rape of Kassandra, Priam’s most beautiful virgin daughter, by Ajax, following the fall of Troy. This was to be expected as Nestor had exhorted his fellow Greeks ‘let no man be

68   Bury, J (ed) (1969) The Cambridge Ancient History. Macedon, Vol VI (Cambridge, Cambridge University Press) 119, 122. 69  Thucydides The History of the Peloponnesian War: Revised Edition trans Warner, R (1999) (London, Penguin) 2.70; 3.68 and 5.116; Diodorus Siculus The Persian Wars to the Fall of Athens trans Green, P (2010) (Texas, University of Texas Press) 14.106; 14.107.2; Arian The Campaigns of Alexander trans De Selincourt, A (1965) (London, Penguin) 2.27.7. 70  See Plutarch Plutarch’s Lives trans Atlas, J (1972) (NYC, Random House) 10.6–8. 71   ‘Alexander’ in Plutarch Plutarch’s Lives trans Atlas, J (1972) (NYC, Random House) 10.9–11. 72  Arian The Campaigns of Alexander trans De Selincourt, A (1965) (London, Penguin) 1.88, 1.99, 4.26.34 and 6.9.5; Diodorus, S The Persian Wars to the Fall of Athens trans Green, P (2010) (University of Texas Press) 17.14.2; McCrindle, J (1896) The Invasion of India By Alexander the Great, 1969 edn (New York, Barnes) 22–23, 41; Ferrill, A (1988) The Origins of War (London, Thames & Hudson) 205. 73  Herodotus The History of Herodotus Vol I, trans Rawlson, J (1909) (London, Dent) 8.3.2; Durschmied, E (2002) From Armageddon to the Fall of Rome (London, Hodder) 69; Straus, B (2005) Salamis (NYC, Arrow) 67; Holland, T (2005) Persian Fire (London, Abacus) 53.

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urgent to take the way homeward until he has lain in bed with the wife of a Trojan’.74 Likewise, Agamemnon, who promised 20 Trojan women to Achilles boasted that: ‘[V] ultures shall feed upon the delicate skin of their bodies, while we lead away their beloved wives and innocent children, in our ships, after we have stormed their citadel’.75 Such promises were buttressed against opposing fears of what would happen if defences failed. For example, in Aeschylus’s (525–455 BCE) Seven against Thebes, lamenting the fate of the fallen city, there are visions of women, cloths torn from their bodies, being dragged away by their hair.76 The exception that stands out from this period was Alexander, who refused to rape the captured daughters of enemy leaders, as was the common practice of the time, to seal the ultimate conquest and shame the vanquished.77 4 .  The Romans

The Romans followed the practice of offering terms, sometimes generous, sometimes not, before sieges were formally undertaken.78 Caesar (100–44 BCE) was particularly renowned in this area as was the Roman nemesis of Hannibal (248–182 BCE).79 For example, before laying siege to Bourges, Caesar warned the enemy to surrender before his battering rams hit their walls as: ‘The alternative was infinitely worse: slavery for their wives and children, death for themselves – the universal fate of conquered peoples’.80 In rhetoric, famous Romans such as Seneca (4 BCE–65 AD)81 and Cicero (106–43 BCE)82 liked to advocate the idea that Livy propagated, namely ‘the ancient Roman custom of sparing the defeated’83 and only punishing the guilty leaders. In practice, the offering of mercy after defeating an enemy in a siege situation was rare although clemency was offered once a siege had begun in the cases of Ambracia, Susa and Jerusalem.84 74  Homer Illiad trans Rieu, EV (1993) (London, Penguin) 21.586; Also, Herodotus The History of Herodotus Vol I, trans Rawlson, J (1909) (London, Dent) 2:116–120; Strauss, B (2006) The Trojan War (NYC, Schuster) 17, 28, 89–90, 104, 106; Hedreen, G (2004) Capturing Troy (USA, University of Michigan Press) 22. 75  Homer Illiad trans Rieu, EV (1993) (London, Penguin) 4.327 and 9.139. 76   ‘Seven Against Thebes’ in Euripides The Trojan Women and Other Plays trans Morwood, J (2009) (London, Penguin) 321–39; ‘The Trojan Women’ also in Euripides; 351–66 ‘Hecuba’ also in Euripides, 918–41. 77  Frontinus Strategems: Aqueducts of Rome trans Bennett, CE (1925) (Massachusetts, Harvard University Press) 2.11.2; also, McCrindle, J (1896) The Invasion of India By Alexander the Great, 1969 edn (New York, Barnes) 42–43, 195–96. Note, this may have been following the example of Galerius who captured, but did not violate, King Naresh’s harem in 297–98. See also Homer Illiad trans Rieu, EV (1993) (London, Penguin) 23.703–705, i.342–43, 19.291–94; Xenophon Cyrop trans Carleton LB (1866) (NYC, Brownson) 7.2.11. Diodorus Siculus The Persian Wars to the Fall of Athens trans Green, P (2010) (University of Texas Press) 13.58.1–2. 78  Livy The War with Hannibal trans De Sekincourt, A (1972) Book XXV(25) (London, Penguin) 21.13.9; Polybius The Rise of the Roman Empire trans Scott-Kilvert, I (1980) (London, Penguin) 248–49. 79  Livy The War with Hannibal trans De Sekincourt, A (1972) Books XXI (14), XXV(10) (London, Penguin) 22.14.10. 80   Caesar’s War Commentaries trans Warrington, J (1955) (London, Dent) 122. 81  Seneca ‘Not to destroy, when one could so easily, was a noble act’ noted in Robinson, P (2006) Military Honour and the Conduct of War (London, Routledge) 38. 82  Cicero On Duties trans Warrington, J (1966) (London, Dent) 1.11.34–35, 2.5.18; Cicero Officers trans Warrington, J (1966) (London, Dent) I.xii, xxxiiii. 83  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 5.27.7, VIII.xi.12–16; xii.5, xiii.8–10, xiv.33.12.7. For a discussion of this approach, see Phillipson, C (1911) The International Law and Custom of Ancient Greece and Rome, Vol II (London, Macmillan) 192–96. 84  Polybius The Rise of the Roman Empire trans Scott-Kilvert, I (1980) (London, Penguin) 21.29–32; Livy The History of Rome trans McDonald, A (1946) (London, Penguin)38.9.13–14; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 38.

The Romans 115

However, in the last instance, the offers of Titus (39–81) were rebuffed and the eventual sack and storm ended with perhaps 580,000 fallen in combat or as collateral damage and 300,000 or more sold as slaves.85 Whilst a breach of promised terms was seen as an extreme violation of the laws of war and more akin to ‘Barbarians’, some examples, such as the destruction of some rebel tribes in upper Spain in 150 or the destruction of the Numidian city of Capsa in the Jurgenthine War, showed that Roman forces did not always keep their promises. In addition, in at least one example in AD 69 at the Armenian town of Uspe, an offer of surrender with a promise of 10,000 slaves in return for mercy for the freeborn, was rejected because the Romans felt they could not look after such large numbers. Ironically, the Romans felt it would be inhumane to slaughter those who surrendered.Therefore, they refused to let them surrender before killing them.86 Assuming a negotiated surrender was achieved, the giving or taking of hostages of noble or royal stock was a typical guarantee for treaties for peace or as collateral until tribute could be paid.87 The first international agreement concluded by Rome is associated with a legend which utilised hostages and emphasised the sacred character of the fides publica populi Romani (trust towards the Roman state). Newly founded Rome, in her course of the war with the Etruscans, concluded a treaty which involved the giving of hostages to the Etruscan king. One of these hostages (Cloelia) escaped and swam the Tiber to return to Rome, but the Romans returned her to the Etruscans. This was commonly regarded as both a good example of the practice of Romans in the management of their treaties and also an insight into the way that the significance of the hostage was much greater than the individual who had been exchanged.88 From such traditions, the transfer of hostages, especially if they were the children of the defeated leaders, became standard practice.89 In some instances, the requirements were spelt out in treaties, such as the Roman Peace Treaty with the Aetolian League in 189 BCE which stipulated: ‘The Aetolians shall surrender to the consul forty hostages for six years, none less than 12 nor more than 40 years of age . . . they shall not include anyone who has served as a hostage before’.90 Similarly, the Peace of Apamea between Antiochus III and the Romans of 188 BCE recorded: ‘Antiochus shall provide 20 hostages, over 18 years of age, but under 45, and shall change them every three years’.91 85   Josephus, F The Jewish War trans Williamson, GA (1984) (London, Penguin) 6.352 and 6.404. Also, Durschmied, E (2002) From Armageddon to the Fall of Rome (London, Hodder) 357. 86  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 21.57.13–14. Also, Polybius The Rise of the Roman Empire trans Scott-Kilvert, I (1980) (London, Penguin) 28.14; Appian ‘Roman History’ in The Civil Wars trans Carter, J (1996) (London, Penguin) VI.X.56–60; Tacitus The Histories trans Ash, R (2007) (London, Penguin) 12.17. 87  Allen, J (2006) Hostages and Hostage Taking in the Roman Empire (NYC, Cambridge University Press); trans De Sekincourt (1972) Livy. The War with Hannibal, Book XXII (33) (London, Penguin). 88   Cicero Officers trans Warrington, J (1966) (London, Dent) 19–20, 162; Livy. The Early History of Rome trans De Selincourt (1960) (London, Penguin) 104–105. 89   Webster, G (1978) Boudica: The British Revolt Against Rome AD 60 (London, Anchor Press) 36, 38; Caesar’s War Commentaries trans Warrington, J (1955) (London, Dent) 42, 50, 60–61, 64, 67, 83, 99, 102, 116, 120, 157. Cook, S (ed) (1970) The Cambridge Ancient History. Rome and the Mediterranean, Vol VIII (Cambridge, Cambridge University Press) 174, 180–81, 191, 227, 530. 90  Peace Treaty With the Aetolian League 189 BC in Lewis, N and Reinhold, M (eds) (1951) Roman Civilization: Selected Readings Vol 1 (NYC, Columbia University Press) 178. See, eg, the Treaty With the Vandals 271 AD and the Peace Treaty With Antiochus III of Syria 188 BC. 91   Treaty Between Antiochus III and the Romans in Austin, M (ed) (1992) The Hellenistic World From Alexander to the Roman Conquest: A Collection of Readings (Cambridge, Cambridge University Press) 265.

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In some instances, the numbers involved could be quite great and the benefits could be positive for the hostages involved, in terms of learning about the culture of those who were holding them. For example, 1,000 hostages were handed over to Rome at the end of the campaigns in Greece in 168 BCE, including the future ‘Roman’ historian, Polybius (200–118 BCE). A further 100 were taken from Carthage at the end of their second war. In time to come, Romans would be the ones handing over hostages to enemies as the collateral for the promises they made. The fate of all such hostages should the treaty they were associated with be broken, is often unknown, although in a number of instances their transfer of status to prisoners of war, and then slaves, and then their execution, can be inferred. In some instances, their fate was known. For example, when it was feared that the Goths were about to rebel in 378, the hundreds of Gothic children who were held as hostages in the various Roman cities were called together into the respective market squares, and all massacred on the same day. A similar fate awaited 300 Roman hostages held by the Ostrogoths in 552 when they suspected foul play by the Roman authorities.92 If there was no negotiated surrender, then the opponents of Rome faced the unmitigated fury of the Latin war machine. The Romans developed their very own verb – diripio – to describe the sacking of cities. In its original meaning, diripio means to tear apart, to mangle, to rip to pieces. The verb later evolved into meaning to deprive, to take away or to divest, with an emphasis on the unruly and violent part of the act.93 The Romans reached this point; they would be involved with the ‘promiscuous slaughter of all sorts of people’.94 Massacres and/or slavery of men, women and children are noted in a number of successful breaches of defended communities before the birth of Christ. These include, inter alia, 502 BCE at Pometia, 459 BCE at Tusculum, Anxur in 406 BCE, Veii in 396 BCE, 386 BCE at Surium, Tarquinienses in 353 BCE (when all were killed except 358 nobles) and Sora in 314 BCE. In 311 BCE when Samnium was taken every adult male was killed. Indiscriminate slaughters were recorded at Agrigentum in 261, Myttistratos in 258 BCE, Lipara in 252 BCE, Casilinum in 216 BCE, both Leontini and Enna in 214 BCE and new Carthage in 212 BCE. The Roman siege and sack of Syracuse in 211 BCE saw the famous inventor Archimedes (287–212 BCE) killed in the carnage that unfolded. Further indiscriminate slaughters by the Romans are notable at Tarentum in 209 and Ilurgia in 206.95 At the siege of Ilurgia, Scipio Africanus (235–183 BCE) told his soldiers ‘to avenge the atrocious slaughter of their comrades’.96 From such instructions it was recorded: 92  Phillipson, C (1911) The International Law and Custom of Ancient Greece and Rome, Vol I (London, Macmillan) 390–406; Cook, S (ed) (1970) The Cambridge Ancient History. Rome and the Mediterranean, Vol VIII (Cambridge, Cambridge University Press 108–10; Cook, S (ed) (1966) The Cambridge Ancient History. The Roman Republic 1st edn (Cambridge, Cambridge University Press) 110–12, 375; Cook, S (ed) (1971) The Cambridge Ancient History. The Augustan Empire 1st edn, Vol X (Cambridge, Cambridge University Press) 87, 115, 765; Cook, S (ed) (1969) The Cambridge Ancient History. The Imperial Peace, 1st edn (Cambridge, Cambridge University Press) 151, 153, 157; Gibbon, E The Decline and Fall of the Roman Empire, 1926 edn, Vols III, IV (London, Methuen) 123–25; 445–46. 93  See Ziolkowski, A (1995) ‘Urbs direpta, or How the Romans Sacked Cities’ in Rich, J and Shipley, G War and Society in the Roman World (London, Routledge) 69, 70. 94  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 2.31.4. 95  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 2.17.4–6, 2.31.4, 4.59.6, 5.21.13, 7.19.1–3, 9.24.13–15, 9.31.2–3, 23.17.10, 24.37.1–39.6, 25.31.9–10, 26.40.7–14, 26.46.10 and 27.16.6; ‘Marc’ in Plutarch Plutarch’s Lives trans Atlas, J (1972) (NYC, Random House) 19.5–6. Cook, S (ed) (1970) The Cambridge Ancient History. Rome and the Mediterranean, Vol VIII (Cambridge, CambridgeUniversity Press) 63–91, 334–36. 96  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 28.19.9–20.7; 28.19.6–8.

The Romans 117 It was in truth evident that the city had been attacked out of anger and hatred. No one thought of taking men alive, no one thought of booty, although every place was open for plunder. They slaughtered the unarmed and armed alike, women as well as men, cruel anger went so far as to slay infants. Then they threw firebrands into houses and demolished what could not be consumed by the flames. So delighted were they to destroy even the traces of the city and blot out the memory of their enemies abode.97

Further indiscriminate massacres following the sack were also recorded with Locha in 203 BCE, Chalcis in 200 BCE, upper Spain in 150 BCE and Carthage’s final destruction in 146 BCE.98 In the case of Carthage, Scipio sent troops into the city with broken walls ‘with orders to kill all they encountered, sparing none’ and ‘the whole city was utterly blotted out of existence’.99 Tacitus gave a similar description with the sack of Cremona: Forty thousand armed men burst into the town . . . and they were ready to indulge in lust and cruelty. Neither rank nor years protected anyone; their assailants debauched and killed without distinction. Aged men and women near the end of life, despised as booty, were dragged off to the soldiers sport. Whenever a young woman or a handsome youth fell into their hands, they were torn to pieces . . . Individuals tried to carry off for themselves money or the masses of gold dedicated in temples . . . some flogged and tortured the owners to discover hidden wealth.100

Indiscriminate slaughter followed the fall of Athens in 86 BCE and Zenodotium in 54 BCE.101 Julius Caesar allowed Gomphi to be sacked in a particularly unrestrained way as a warning to other settlements. When Avaricum was sacked in 52 BCE by troops under Caesar’s command they ‘spared not aged men, nor women, nor children’ and only 800 inhabitants out of a local population of 40,000 Gauls survived the storming of their city.102 Germanicus (16 BCE–19 AD) established monuments boasting he had ‘warred down’ the Germans after exterminating one community with no distinction of sex or age.103 The killing of old men, women and children was also recorded at the first Jewish uprising in Jerusalem in 37 BCE and during the uprising at Gamala. The second siege of Jerusalem had Josephus (37–100) put the number of dead at the improbably high figure of just over one million.104 The Romans also have a history of completely destroying some opposition groups, in acts which may have been genocidal as defeated peoples were swept up into armies, made into slaves, killed during the time of war or left behind in locations made infer Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 28.19.9–20.7 and 28.20.6–8.  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 31.23.7–8; Appian ‘Roman History’ in The Civil Wars trans Carter, J (1996) (London, Penguin) VI.X.56–60. 99   Goldsworthy, A (2003) The Fall of Carthage (London, Cassell) 275, 354; Polybius The Rise of the Roman Empire trans Scott-Kilvert, I (1980) (London, Penguin) 10.15.4; Zonoras Epitome IX.xxx in Lewis, N and Reinhold, M (eds) (1951) Roman Civilization: Selected Readings Vol 1 197; Livy The History of Rome trans McDonald, A (1946) (London, Penguin) xxi.13–14 and xxiii.5; Polybius The Rise of the Roman Empire trans Scott-Kilvert, I (1980) (London, Penguin) x.15. Note, not all were killed, 50,000 were taken into slavery. 100  Tacitus The Histories trans Ash, R (2007) (London, Penguin) 3.33–3.35;. Also, Cook, S (ed) (1971) The Cambridge Ancient History. The Augustan Empire, 1st edn, Vol X (Cambridge, Cambridge University Press) 833–35. 101  Appian ‘Mithridatic Wars’ in The Civil Wars trans Carter, J (1996) (London, Penguin) 38. Also, ‘Sulla’ in Plutarch Plutarch’s Lives trans Atlas, J (1972) (NYC, Random House) 14.10; Sampson, G (2008) The Defeat of Rome in the East (Philadelphia, Casemate) 101. 102  Caeser The Conquest of Gaul trans Gardner, JF (1983) (London, Penguin). 103  Tacitus The Histories trans Ash, R (2007) (London, Penguin) 2.21. 104   Josephus, F Jewish War trans Williamson, GA (1984) (London, Penguin) 1.351–352, 4.82, 6.404, 6.414. 97 98

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tile. One example of this type of warfare involved the wars of Trajan (53–118). Trajan, who managed to rampage through Parthia, sacking and burning Seleucia, Ctesiphon, Nisibis and Edessa, resulting in the alleged deaths of over 300,000 inhabitants, seems to have saved his unrestrained fury for the Dacian nation (modern day Romania). After this conflict the Emperor proclaimed: ‘Alone, I have defeated the peoples from beyond the Danube and I have annihilated the people of the Dacians.’105 Caesar would also record his intentions to ‘encircle the guilty state and to punish its crime with total annihilation’.106 In time to come, whilst some ethnic groups would appear to blend and evolve into new groupings, such as the Huns and the Goths, others like the Vandals or the Avars, following their military defeats, would essentially disappear from the history books. The Romans also adopted policies of colonising the land of beaten people, and if there were any survivors, resettling them, either as slaves or colonists, in other parts of their Empire. In this regard, the capture and enslavement of war prisoners was proportional to the vast dimension of the life and death contest between Rome and her foes. For example, 20,000 people were captured and enslaved in 256 BCE in Africa, 25,000 in 261 in Sicily, 30,000 in 209 in Southern Italy, and later 150,000 at the Battle of Pydna in 167. These numbers only increased as Rome continued to expand. Caesar is supposed to have enslaved one million inhabitants of Gaul. These were supplemented by a further two million enslaved alien peasants who are believed to have been transported to Italy between 80 and 8 BCE. Further mass movements of peoples occurred for as long as the Western Roman Empire won military victories, with various conquered tribal groups moved around the far reaches of the territory, as required. The Byzantine Empire in the East adopted the same policy, moving tens of thousands of defeated peoples as required.107 The enemies of the Romans replicated the same patterns. Indiscriminate slaughters against the Romans allegedly happened when the Gauls sacked Rome in 390 BCE.108 The Carthaginian leaders of Hasdrubal (275–228 BCE) and Hannibal were both known to have sacked cities and then ‘every species of lust and outrage and inhuman insolence was visited upon the wretched inhabitants’.109 The attacks by the Celtic English upon the Roman settlements of Camulodunum, Verlumium and Londinium (London) saw the deaths of perhaps tens of thousands of men, women and children. The fire that destroyed Londinium was so extensive that the only evidence left of this early Roman trading centre in the twenty-first century is an eight-inch thick layer of burnt red clay.110 105   Trajan quoted in Julian Orations 6–8 trans Wright W (1913) (Loeb) XXVIII, 327. For discussion, see Jones, T (2006) Barbarians: An Alternative Roman History (London, BBC Books) 112–15; Gibbon, E The Decline and Fall of the Roman Empire 1926 edn, Vol 1 (London, Methuen) 224–27. 106   Caesar’s War Commentaries trans Warrington, J (1955) (London, Dent) 110. 107  Elton, H (1997) Warfare in Roman Europe (Oxford, Oxford University Press) 56, 130; Wood, N (1988) Cicero’s Social and Political Thought (Berkeley, California University Press) 19–21; Cook, S (ed) (1969) The Cambridge Ancient History. The Imperial Peace 1st edn (Cambridge, Cambridge University Press) 360–65; Gwatkin, H (ed) (1957) The Cambridge Medieval History. The Christian Roman Empire, Vol I (Cambridge, Cambridge University Press) 57; Gibbon, E The Decline and Fall of the Roman Empire 1926 edn, Vols V, VI (London, Methuen) 45–46; 126. 108   ‘Camillus’ in Plutarch Plutarch’s Lives trans Atlas, J (1972) (NYC, Random House) 22.6. 109  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 21.57.13–14; Durschmied, E (2002) From Armageddon to the Fall of Rome (London, Hodder) 168–70. 110   Webster, G (1978) Boudica: The British Revolt Against Rome AD 60 (London, Anchor Press) 93–97; Jones, T (2006) Barbarians: An Alternative Roman History (London, BBC Books) 64–65.

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Trying to chart the practices of warfare during the Dark Ages is very difficult, as the records in some places, such as Britain between 350 and 650, are very patchy. All that is relatively certain is that warfare was both endemic and brutal as waves of invaders came in search of both treasure and living space. On the Continent, the record of the Barbarians who overran the Western Roman Empire, such as Atilla the Hun (406– 453), Alaric (370–410) and Gasiseric (389–477) is a little clearer. All of these Barbarians were well versed in all of the practices of the Romans, such as offering terms to besieged areas and taking hostages as collateral.111 The Barbarians did not always honour the terms and attacked the citizens of some cities, despite promises not to do so, once their guards were down. In other instances, such as when Alaric took Rome via a negotiated surrender, he gave orders that those who had taken refuge in sacred places were to remain inviolate and unmolested, and these orders were kept. However, the civilians found outside of these areas risked murder and rape. The Ostrogoth Totila (d 552) displayed a strong penchant for mercy, preventing the rape of female captives, and freedom – not enslavement – for many threatened populations.112 However, often the restraints exercised by these Barbarian kings depended upon besieged populations accepting terms of surrender before it was too late. If terms were not accepted, indiscriminate killing, rape and pillage were the fate of the defeated if they were not lucky enough to be made into slaves. Augustine (354–430) wrote some of his most influential works whilst resident in the city of Hippo which was besieged by the Vandals. Augustine explained the practice of sacking cites: The virgins are ravaged, the children are torn from their parents bosoms, the matrons made the objects of all the victors lust, the temples and houses spoiled, all things turned into burning and slaughter . . . all the spoil, murder burning violence and affliction . . . [a]re nothing but the ordinary effects following the custom of war.113

Such reflections were not hyperbole. Thus, when Hippo fell after Augustine’s death, it was burnt to the ground. This was not unusual for the Barbarian forces. When the Goths took Philippolis around 250, they killed or captured everyone as booty. Theodosius (347–395) punished the revolt of the inhabitants of Thessalonica in 390 by killing 7,000 of its citizens. When the Goths ran through Greece around 395, they were known to kill every male of a fighting age and carry off every female they could find of those not safely inside defended cities. The city of Mentz met a similar fate in 407, as did large parts of Spain that fell before the combined Barbarian forces of the Suevi and Alani. The Vandals followed suit in North Africa. Attila the Hun would sometimes not even offer terms to besieged towns and history records him as destroying some towns, such as Aquileia, so thoroughly, that hardly a trace afterwards could be found (although the survivors went on to found Venice). Cocordia, Altino and Padua followed in quick succession. When Metz was taken in 451, after the wholesale murder and/or rape of the survivors, the only building that was not committed to the 111   Baker, D (1966) The Early Middle Ages: Portraits and Documents (London, Hutchinson) 29, 33; Man, J (2005) Attila the Hun (London, Bantam) 152–53; Morris, J (2001) The Age of Arthur (London, Phoenix) 17, 75, 84, 90–91, 98, 102, 168, 170, 203, 434. 112   Gibbon, E The Decline and Fall of the Roman Empire 1926 edn, Vols III, IV (London, Methuen) 340–44; 424–26; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 158, 223, 238; Jones, T (2006) Barbarians: An Alternative Roman History (London, BBC Books) 144–45; Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 9.12.5–8. 113  Augustine City of God 1945 Healy’s Translation, Vol I (London, Everyman’s Library) 6, 8.

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flames was the solitary chapel of Saint Stephen. The fall of Naples in 539 to the Franks was linked to the deaths of tens, if not hundreds, of thousands of men of all ages and the wholesale rape of the females inside the breached area. This was entirely consistent with the directions of Theudebert (500–548), the King of the Franks who, in the same year, had thrown Ostrogoth women and children into the Po whilst pagan Saxon males ‘who had reached a certain age were condemned to death; those who had not reached puberty were kept as booty . . . boys and girls were kept for captivity’.114 The following year, 540, the Byzantine city of Antioch was completely sacked, bar for a few hundred who sought shelter in the church of Saint Julian. When Tivoli was sacked in 544, men, women and children were killed without distinction. Even larger scale massacres of inhabitants followed the Byzantine forces in the coming century as they made their way through the Gulf of Nicomedia.115 The Persian sack of Byzantine Jerusalem in 614 is believed to have involved the deaths of 57,000 people (soldiers and civilians alike) with a further 35,000 taken captive and sold into slavery. This followed similar sacks of Ctesiphon in 605, whereby the Persians violated the terms of the surrender, and massacred those who surrendered. The Vikings were also recorded as killing men, women and children in times of indiscriminate attack, and then taking hostages afterwards as guarantors of the peace. In time, the Vikings would move their actions into the Byzantine sphere of influence and with the emergent Rus would also periodically plunder the wealthy monasteries that were not kept behind stout walls, as well as burning and pillaging every undefended area they passed through.116 The Rape of the Sabine Women is an episode in the legendary history of Rome in which the first generation of Roman men acquired wives for themselves from the neighbouring Sabine families. Although in this context, rape meant abduction – raptio – rather than its prevalent modern meaning of sexual violation, the idea that women could be abducted and claimed as a form of property that could be acquired by conflict, irrespective of the human cost, is indicative of the thinking of the period. Although the Roman laws took rape very seriously when committed in times of peace (the convicted ravishers were torn apart or burnt alive in amphitheatres), different rules applied in times of war. In this regard, numerous Roman (and Carthaginian) campaigns record the suffering of the women at the hands of victors, with rape being the fate of many after the sack of a besieged city. This could be expected either during or after a sack. This was especially so in times when the sack ended with the killing of all the males, and soldiers took women as a form of plunder. For example, when the Goths who had attempted to take over Greece were subdued in 270 AD, each Roman soldier received, in addition to other booty, either two or three women.117 The problem with the Roman epoch is that such acts of restraint, despite the admonitions of Virgil   Contamine, P (1984) War in the Middle Ages (Oxford, Blackwell) 262.  Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 158, 216, 229, 331, 614; Regan, G ‘The First Crusader’ BBC History (November 2001) 45–48; Fuller, J (1945) Armaments and History (NYC, Scribner) ix. 116   Gibbon, E The Decline and Fall of the Roman Empire, 1926 edn, Vols III, IV, V (London, Methuen) 255–58, 286–88, 362–65, 429–30, 482–86, 495–97; 351–52; 75–76; Gwatkin, H (ed) (1957) The Cambridge Medieval History. The Rise of the Saracens, Vol II (Cambridge, Cambridge University Press) 285, 290. Laing, J (2000) Warriors of the Dark Ages (London, Sutton) 3, 70; Man, J (2005) Attila the Hun (London, Bantam) 277, 309, 310, 314–15, 317; Ayerst, D (ed) Records of Christianity, Vol I (London, Blackwell) 222; Norwich, J (1991) Byzantium. The Apogee (NYC, Knopf) 66, 68, 151. 117   Goldsworthy, A (2003) The Fall of Carthage (London, Cassell) 289; Gibbon, E The Decline and Fall of the Roman Empire 1926 edn, Vol 1 (London, Methuen) 310–14. 114 115

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(70–19 BCE)118 to respect women in times of conflict, appear to be rare. In some instances, sexual violence led directly to further conflict. For example, the rape of the daughters of Boudicia was a major cause of the British uprising against the Romans.119 The exception to this approach was Scipio Africanus who was known to act to protect the young daughters of foreign notables from the ravages of his men. With his capture of New Carthage, a beautiful captive was said to have been offered to Scipio by some of his soldiers. However, he sent the girl back untouched and ‘the self restraint and moderation he displayed on this occasion secured him the warm approbation of his troops’. A second instance involved Scipio’s treatment of the Iberian women hostages that the Carthaginians had been holding. When it became apparent that the Carthaginians had been raping them, Scipio assured the women that ‘he would look after them as if they were his own sisters and children and would accordingly appoint trustworthy men to attend on them’.120 Such actions brought not only a moral respect for Scipio but a political alliance with the tribes from where the women were from. Galerius (260–311) would replicate exactly the same pattern in his wars against the Persians, protecting the wives of his enemy from violence and rapine.121 The forces of eastern Roman Empire, under the authority of the Byzantine Justinian (483–565 AD), were also kept under strict control, expressly prohibited from rape as they reconquered North Africa; his soldiers were reminded that the local people, despite being under Barbarian occupation for a century, were still Roman. Thus, when his troops marched into Carthage in 533, complete order was maintained by them. Following the sack of Naples in 536, the Byzantine commander Belisarius (500–565) told his soldiers: The gold and silver are the just rewards for your valour. But spare the inhabitants, they are Christians, they are suppliants, they are now your fellow subjects. Restore the children to their parents, the wives to their husbands, and show them, by your generosity, of what friends they had deprived themselves.122

When Ravena was retaken by Byzantine troops in 539, the orders for no rape were strictly enforced, as was the standing order for the Byzantine army of the tenth century that ‘no female captive [is to be] mishandled’ that was to become a central pillar of the code of chivalry.123 Unlike the Byzantine attempts at restraint, rape, as a weapon if not a consequence of war, was used by many of the enemies of both the Eastern and Western sections of the Roman Empire. In the year 52 AD, when the Persians captured Dara, 2,000 of the most beautiful Christian virgins were personally selected for presentation to the Khan 118   In Virgil’s depiction of the sack of Troy, Aeneas considered murdering Helen, who had brought such disaster upon the city, but refrained from doing so, noting that: ‘There may be no great honour in killing a woman; such a victory brings no fame’. Virgil, Aeneid trans, Keener, F (1997) (London, Penguin) 68. 119   Webster, G (1978) Boudica: The British Revolt Against Rome AD 60 (London, Anchor Press) 88. 120  Polybius The Rise of the Roman Empire trans Scott-Kilvert, I (1980) (London, Penguin) 10.18.3–15. 121  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 26.50; Gibbon, E The Decline and Fall of the Roman Empire 1926 edn, Vol 1 (London, Methuen) 401. 122   Belisarius in Gibbon, E The Decline and Fall of the Roman Empire 1926 edn, Vol IV (London, Methuen) 331. 123  Glover, M (1982) The Velvet Glove. The Decline and Fall of Moderation in War (London, Hodder) 57; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 209, 226, 270; Keen, M (1984) Chivalry (NYC, Yale University Press) 219–38; Prestwich, M (1995) Armies in the Middle Ages (NYC, Yale University Press) 230.

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of the Turks, as a gift to entice the Khan to become an ally. However, many of these young women deliberately drowned themselves in the Tigris before they were handed over. Rape was also practised by the troops of Barbarian forces that toppled the Western Roman Empire. For the Goths, ‘the enjoyment of beauty was the reward of valour’.124 Attila the Hun, Alaric (especially when Rome fell in 410) and the Vandals, all captured women as spoils of war to be enslaved and/or raped. The Vikings also became famed for their rape and/or abduction of foreign women, as did many of the combatants fighting in the decentralised conflicts that came to engulf Europe in the Dark Ages.125 Such problems became so pressing that Augustine dedicated several pages to it in his monumental work, The City of God. He explained that in sacking cites ‘the virgins are ravaged [and] . . . the matrons made the objects of all the victors lust’. He added that, although the victims of rape did not have their spiritual values polluted, the act of rape did result in ‘a just cause of anger’.126 5 .  The Middle Ages

The early scholars who emerged with the Islamic Empire were clearly intending to set high standards. The first Caliph, Abu Bakr (573–634), provided a good example of this when he sent out bands of the faithful to avenge attacks which Syrians had made on the caravans of the emergent Muslim community. Although they were authorised to attack, he nevertheless directed them: ‘See that none deals with treachery . . . neither shall you kill child, or aged man or any woman . . . and the monks with shorn heads you shall leave unmolested if they submit’.127 Such dictates were clearly in accordance with the early Islamic jurists, such as Abd al-Rahman al Awza’i (704–774), who suggested that the objective of war was the religious conversion of the enemy, not their annihilation. This meant that damage which was not necessary in times of war, such as the killing of non-combatants, was disapproved of.128 Shaybani (b c 750)129 broadly concurred,130 whilst Ibn Taymiyya, (d 1328) would later proclaim: As for those who cannot offer resistance or cannot fight, such as women, children, monks, old people, the blind, handicapped and their likes, they shall not be killed unless they actually fight with words (eg by propaganda) and acts (eg by spying or otherwise assisting in the warfare).131   Gibbon, E The Decline and Fall of the Roman Empire, 1926 edn, Vol III (London, Methuen) 257.   Man, J (2005) Attila the Hun (London, Bantam) 29; Laing, J (2000) Warriors of the Dark Ages (London, Sutton) 70; Durschmied, E (2002) From Armageddon to the Fall of Rome (London, Hodder) 400–401; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 138–39; Morillo, S (1994) Warfare Under the AngloNorman Kings (Suffolk, Boydell) 98. 126  Augustine The City of God trans Healey (1945) Vol I (London, Everyman’s Library) 6, 8, 20–24, 55–56. 127  Abu Bakr, reprinted in Lewis, B (ed) Islam: From the Prophet Muhammad to the Capture of Constantinople (Oxford, Oxford University Press, 1974) 213; Also, Ghunaimi, M (1968) The Muslim Conception of International Law and the Western Approach (The Netherlands, Nijhoff) 169. 128  Noted in Khadduri, M (1966) The Islamic Law of Nations.Shaybani’s Siyar (NYC, John Hopkins University Press) 53. 129  See Siyar, S (1965) The Islamic Law of Nations (Maryland, John Hopkins Press) 76, 87, 91–92, 98–103, 114. 130  Note the Quran 2:256. 131   Ibn Taymiyya noted in Peters, R (1996) Jihad in Classical and Modern Islam (NYC, Weiner) 49; also Khadduri, M (1955) War and Peace in the Law of Islam (Baltimore, John Hopkins Press) 103–105. 124 125

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Similar thinking was also held within Europe and parts of Byzantine Empire, where by the turn of the tenth century, the Church was clearly trying to limit who could be attacked during periods of conflict. These rules appeared first in the Peace of God of 989. This proclaimed that it was ‘forbidden to despoil or pillage the communities of canons, monks and religious persons . . . or the clergy who do not bear arms’. It was added: ‘Let no man dare to kill, to beat, or to wound a peasant or serf, or the wife of either, or to seize them and carry them off [except for misdemeanors which they may have committed]’.132 The Peace of 989 was supplemented by the Truces of God in 1016, 1027 and 1054, which expanded the ambits of protected persons. Thus, in 1016 peasants were added, agricultural workers and ‘men accompanied by a woman’ joined the list of protected persons in 1027 and then ‘fellow Christians’ in 1054.133 The Church even went so far in 1179, at the Third Lateran Council to prohibit jousting types of tournaments whereby Christians ‘meet in combat to display their strength and skill’.134 Gratian (twelfth century) came to adopt similar lists of non-combatants who could not be attacked in 1148,135 as did Thomas Aquinas (1225–74), who held it was ‘in no way lawful to slay’ – although he would add ‘he who at God’s command kills an innocent man does not sin’.136 Similar limitations provided protections for a different group of noncombatants, such as foreign merchants in 1215 with the Magna Carta.137 Within a comparatively short space of time, the protection of the innocent from the ravages of war appeared in the knightly code of chivalry and embryonic international law.138 Within this evolution, the works of John of Salisbury (1120–80),139 Giovanni da Legnano (1320–83),140 Honore Bovet, (1340–1410)141 and especially, Christine de Pisan (1365–1434)142 are notable. Moreover, such advocacy may have been influential on a number of the monarchs of the time, such as, inter alia, William I (1027–87), Edward I (1239–1307), Edward III (1312–77), Richard II (1367–1400), Henry V (1386–1422) and James I (1566–1625), who all left behind detailed ordinances which forbade their troops from committing a number of acts in various settings. For example, Henry V forbade 132   ‘The Peace and Truce of God at the Council of Toulouges 989’ in Herlihy, D (ed) (1970) The History of Feudalism (NYC, Harper) 286–87. 133   ‘The Truce of God 1027’ in Laffan, R (ed) (1929) Select Historical Documents: 800-1492 (NY, Holt) 18; ‘The Truce of God 1054’ in Laffan, at 20; Contamine, P (1984) War in the Middle Ages (Oxford, Blackmore) 270; France, J (1999) Western Warfare In the Age of the Crusades (London, UCL Press) 11; McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 66; Glover, M (1982) The Velvet Glove. The Decline and Fall of Moderation in War (London, Hodder) 11. 134   ‘Third Lateran Council, 1179’ in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 96. 135   ‘The Decretals of Gratian Causa 23’ in Hartmann, W and Pennington, K (2008) The History of Medieval Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX (NYC, Columbia University Press). 136   Baumgarth, W (ed) Saint Thomas Aquinas. On Law, Morality and Politics (NYC, Hackett) 223–24. Note also the original Summa Theologia II, Q64 Art 6. 137  See Magna Carta, s 41. 138   Keen, M.H (1965) The Laws of War in the Late Middle Ages (Cambridge, Cambridge University Press) 125–34; Prestwich, M (1995) Armies in the Middle Ages (NYC, Yale University Press) 230, 236; Stacy, R (1994) ‘The Age of Chivalry’ in Howard, (ed) The Laws of War (NYC, Yale University Press) 26, 28. 139   Markland, M (ed) John of Salisbury Policraticus: The Statesman’s Book (1972, NYC, Murray) 199. 140   Legnano, G (1360) ‘Tractatus: De Bello, De Represalis et De Duello’ in Brierly, JL (1917) Classics of International Law (Oxford, Clarendon) 302–303. 141   Honore Bovet (1387) The Tree of Battles trans, Jones, T (1942) (London, Penguin). 142   Bykes, A (ed) (1932), De Pissan, C (1408/09) The Book of Deeds of Arms and of Chivalry 217, 224, 264.

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the taking of children under the age of 14 as prisoners, and attacks upon churches. He also called for the protection of women confined by childbirth.143 He added: That no manner of man be so hardy as to go into any chamber or lodging where any woman lieth in childbed, in order to rob her, or pillage any goods belonging to her, nor make any affray whereby she or her child be in any disease or danger.144

In addition to the growth of such chivalrous behaviour, the process of offering terms rather than facing a sack became increasingly formalised. Conventional protocol demanded that the first step of a commander whose forces were before an enemy town was to send it a summons to surrender. A messenger, very likely a herald, would go forward under surety and formally demand admittance in his master’s name. This would give the garrison and the townspeople an opportunity, if they so wished, to make a treaty on the spot. This messenger also gave them due warning of what the consequences would be of refusing to surrender, which would serve as an added inducement to make terms.145 A common arrangement was for a garrison to concede that they would surrender if no relieving force arrived by a set date. Other variations allowed the commanders to negotiate only after a certain amount of time under siege. For example, during the siege of 1123 of Pont Audemer, after seven weeks of siege, the garrison offered surrender. There were allowed to leave with their equipment and to go where they wished. Others were not so lucky, and a refusal to accept the terms at the original point they were offered may have meant they would never be offered again, no matter how unattractive they were in the first instance.146 In addition, the forces besieging an area did not have to accept the counter-terms put to them. Legend has it that Richard the Lionheart (1157–89) rejected the offer of surrender by the garrison at ChalusCharbrol in 1199, when they wanted their lives, arms and armour to be spared in exchange for the castle. Because they held a particular treasure he wanted, he swore he would capture and hang them all. Yet in this brutal and over-confident manner, he took one risk too many and was struck in the shoulder by a crossbow bolt, from which he died 11 days later.147 The offering of terms before attacking a besieged area, and warning them that three days of uncontrolled sack may follow any rejection of the terms was also a key part of Islamic tradition.148 For example, in the letter to the Persians in 633, the commander of the Mulsim forces warned: 143   Meron, T (1993) Henry’s Wars and Shakespeare’s Laws (Oxford, Oxford University Press) 93; Prestwich, M (1995) Armies in the Middle Ages (NYC, Yale University Press) 242. 144  Meron, T (1993) Henry’s Wars and Shakespeare’s Laws (Oxford, Oxford University Press) 93; Also, Nicholas, H (1832) A History of the Battle of Agincourt, 2nd edn, (Charleston, Nabu Press) app 1; Morillo, S (1994) Warfare Under the Anglo-Norman Kings (Suffolk, Boydell) 134. For the rules of James I, see Gebler, C (2005) The Siege of Derry (London, Abacus) 108, 118. 145   Keen, M (1965) The Laws of War in the Late Middle Ages (London, Routledge) 119–21; Gravett, C (1990) Medieval Siege Warfare (London, Osprey) 18. 146  Prestwich, M (1995) Armies and Warfare in the Middle Ages (NYC, Yale University Press) 297, 302, 303; Morillo, S (1994) Warfare Under the Anglo-Norman Kings (Suffolk, Boydell) 142. 147   Gillingam, R (1978) Richard the Lionheart (London, Weidenfeld) 9. 148  See Khadduri, M (1955) War and Peace in the Law of Islam (Baltimore, John Hopkins Press) 96–98. In the case of the Christians, terms were offered to besieged Muslim forces and honoured in Nicaea in 1097, Arsuf in 1101, Tyre in 1124, Ascalon in 1153 and Alexandria in 1167. Christian forces did not honour the terms they offered with the surrender of Apamea in 1106 and Tripoli in 1109. Muslim forces did not honour their surrender commitments with the handing over of Acre to Richard the Lionheart in 1191, to which he responded by killing 2,700 of his captives. Runciman, S (1954) A History of the Crusades, Vols 1, 2,

The Middle Ages 125 Submit to our authority, and we shall leave you and your land and go by you against others. If not, you will be conquered against your will by men who love death as you love life . . . Become Muslim and be saved. If not, accept protection from us and pay [tribute]. If not, I shall come against you with men who love death as you love to drink wine.149

Tamerlane (1336–1405), perhaps the most effective Muslim conqueror in history, would on the first day he appeared before a besieged area fly a white flag over his tent, signifying that the lives of all would be spared if the city surrendered immediately. On the second day, the flag was red, promising mercy for the common people, but not the rulers. The third day, it was black – no man, woman or child would be spared. Whilst he would often honour such terms, this was not always the case.150 Similarly, when Sultan Mehmet II (1433–1481) stood before the walls of Constantinople, he offered (twice) to spare the citizens, harming neither them nor their belongings if they surrendered to him. Otherwise, there would be no mercy shown the citizens of Constantinople. The third time he offered, as the siege was settling in, he requested a payment which they had no chance of making. When this was made clear, the Sultan replied that their choices were the unconditional surrender of the city, death by sword or conversion to Islam.151 By this point, such approaches were consistent with long-standing tradition. Before this point, Muslim forces offered, and honoured, terms of surrender to besieged communities of different religious faiths across parts of the Middle East, North Africa, Europe and Asia. Within the Crusading period, clear records exist of this practice at Montferrand in 1137 and Banyas in 1164. These followed very similar earlier precedents such as when dealing with the Byzantine communities in Damascus in 634 and Jerusalem in 636. For example, in the case of the latter, the peace terms offered contained two key promises. First, ‘safe conduct for their persons, their property, their churches, their crosses, their sound and their sick, and the rest of their worship’ was promised. Second, if the people elected to stay rather than leave Jerusalem, they had to agree to pay a tribute to their new Muslim overlords.152 Following the defeat of the Christian army at Hattin, Saladin (1138–1193) offered terms to the fortresses of Tiberias, Acre, Ascalon and Sidon in 1187. All were honoured, as was his famous acquisition of Jerusalem (which had been held by the Crusaders for just under a century), which also surrendered on surprisingly generous terms in 1187 despite its walls being breached. Sahed surrendered on terms in 1265, as did Krak-des-Chevaliers and Starkenberg in 1271 and Marqab in 1285, although there are question marks about some of these capitulations. The offering of terms on behalf of Muslim forces, which were accepted and honoured, were also recorded with

3 (Cambridge, Cambridge University Press) 180; 53, 73, 169, 339, 375; 51, 58; Runciman, S (1964) The Fall of Constantinople 1453 (Cambridge, Cambridge University Press) 144; France, J (2008) ‘Siege Conventions in the Middle Ages’ in de Souza, P (ed) War and Peace in Ancient and Medieval History (Oxford, Oxford University Press) 158, 164–67. 149   Letter to the Persians, in Lewis, B (ed) Islam: From the Prophet Muhammad to the Capture of Constantinople (Oxford, Oxford University Press, 1974) 228. 150   Marozzi, J (2005) Tamerlane: Sword of Islam (London, Harper) 133, 144; Seward, D (1974) The Monks of War (Herts, Penguin) 230. 151  Runciman, S (1964) The Fall of Constantinople 1453 (Cambridge, Cambridge University Press) 34–35, 96, 115, 124, 162–63, 174–75. 152  Peace terms offered to Jerusalem in 636. In Lewis, B (ed) (1974) Islam: From the Prophet Muhammad to the Capture of Constantinople (Oxford, Oxford University Press) 235.

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the surrender of Rhodes in 1523, but were accepted and then not honoured, with the surrender of Famagusta in 1571.153 Following such negotiations, or with peace treaties which ended overall hostilities, the taking and/or giving of hostages was common practice. Within Europe, this practice was clearly evident in the time of the Vikings and opposing communities in both France and England. After this eopch, the practice can be easily observed both within Christendom and between Christian and Muslim communities. For example, Richard the Lionheart took hostages after his victories in Cyprus, en-route to his Crusade. When Richard the Lionheart was himself made hostage on the way back from the Crusades, the sons of Henry the Lion and the King of Navarre were handed over as hostages as collateral for the outstanding moneys (50,000 marks) for the sale of Richard the Lionheart to Kings Philip and John.154 Such hostage-taking was part and parcel of this period. William the Conqueror took hostages to secure his rule and ensure an occupation not undermined by rebellion. Likewise, when Frederick Barbarossa (1122– 1190) demanded the surrender of Milan in 1158 he added: ‘For the execution and completion of these articles in good faith they shall give three hundred hostages (nobles, knights and plebeians) . . . if the aforesaid conditions have been observed, the hostages are to be freed’.155 If rebellion or breach of promise occurred, the hostages could be dealt with as the captor saw fit. William had one of his hostages from Exeter blinded before those besieged in the castlein front of their city gate, after the authorities within the walled city changed their mind about surrender, despite having earlier handed over hostages as evidence of their good faith to surrender when William arrived. A little later the 1360 Treaty of Bretigny would have similar requirements, with two of the captured French King’s sons, his brother, and 37 other notables being sent to England as hostages (in addition to a sizeable ransom) as collateral until all of the terms of the treaty were honoured.156 Although the killing or torture of such peoples did not happen in the case of the hostages for the French king, when the Welsh rebelled against the English in 1211, the seven-year-old son of the lead rebel, Maelgwyn ap Rhys, was executed. A further 28 Welsh hostages, many of whom were also the children of Welsh leaders, were executed. For lesser breaches than direct rebellion some of these child hostages were castrated or blinded. Perhaps due to such actions, when peace was attempted in Britain with the Magna Carta, the mutual return of hostages held by the Scottish, Welsh and English was agreed.157 However, this was an exception to the increasingly barbaric practice of hostage-taking in these years. For example, at Brescia, in 1238, Barbarossa tied hostages to his siege machines to prevent bombardment. Edward III hung his hostages before the eyes of the Berwick citizens in 1333. Likewise, when Calais decided not to surrender as it had earlier promised and handed over hostages as proof of its intentions, Edward 153  Runciman, S (1954) A History of the Crusades, Vol 2 (Cambridge, Cambridge University Press) 171; Gillingham, J (1978) Richard the Lionheart (London, Weidenfeld) 153, 236. 154  Abels, R (2008) ‘Paying the Danegold: Anglo-Saxon Peacemaking With Vikings’ in de Souza, P (ed) War and Peace in Ancient and Medieval History (Oxford, Oxford University Press). 173, 184–85. 155   ‘The Surrender of Milan to Barbarossa, 1158’ in Laffan, R (ed) (1929) Select Historical Documents: 8001492 (NY, Holt) 83; Roche, R (1995) The Norman Invasion of Ireland (Dublin, Anvill) 52, 67, 68, 143, 171. 156   Treaty of Bretigny 1360, Art 3; Wood, H (2008) The Battle of Hastings (London, Atlantic) 27; Baker, D (1966) The Early Middle Ages: Portraits and Documents (London, Hutchinson) 81; Keen, M (1965) The Laws of War in the Late Middle Ages (London, Routledge) 130; Warner, P (2004) Sieges of the Middle Ages (Yorkshire, Pen and Sword) 53, 85–86. 157  See Magna Carta, Arts 49, 58, 59 in Herlihy, D (ed) The History of Feudalism (NY, Harper) 267.

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had people executed for the breach of promise by others. In other instances, civilians associated to places where certain acts had occurred could be made to pay the price for others. For example, when two Catholic friars were murdered in 1242, the Pope ordered that 200 heretics from the area where the murder occurred be burned in reprisal.158 Despite all of the above considerations and examples, the conflicts between Christianity and Islam between the eighth and thirteenth centuries are commonly associated with indiscriminate massacres following the sack of defended areas which refused terms. Such indiscriminate massacres were not restricted to those of either religion, nor those within defended areas. In some instances, as the Crusades left Europe, they were responsible for a series of pogroms against Jewish people in Europe, en route to the Middle East. Systematic anti-Semitism had already been evidenced as early as 608 when the Byzantine Emperor Maurice (539–602) initiated an all out campaign for the persecution and forcible conversion of the Jews within his empire. Centuries later, as the Western Christians headed east, although some Christian leaders tried to control the ‘mad excesses’ of some of the Crusaders and their supporters, a number of atrocities occurred. In this regard, the Jews of the Rhineland were killed in cities liked Speyer, Cologne and Worms, with perhaps 500 people being killed in the last instance alone. Further massacres were recorded at Regensburg and Prague. At Mainz in 1096, a community of Jewish people of around 900 individuals was wiped out. Similar atrocities were carried out during the reclaiming of Spain and the defeat of the Moors, with massacres of thousands of Jewish people being recorded in 1391, 1449 and 1481. In 1492, the Jews, along with many Muslims who refused to abjure their religion, were banished from Spain but were not allowed to take their property with them. In 1525 Charles V (1500–1588 AD) expelled all the Jews who remained in Naples.159 Large atrocities were also carried out under Crusader banners against dissident Christians. Within the Byzantine Empire, the Paulicans were directly attacked, and invited to ‘renounce their errors’ or be put to death. Over 100,000 people refused the offer of seeing the light of the Byzantine Orthodoxy, and were subsequently hung, drowned, put to the sword or even crucified. In the West, systematic attacks against dissident Christian communities were most notable with the Albigensian Crusade. For example, when Beziers was stormed in 1209 perhaps 20,000 of its inhabitants were put to the sword. It was in this storm that Arnaud-Amalric (d 1225) refused restraint, telling the soldiers to ‘kill them all, God will know his own’.160 Simon de Montfort (1208–65), at the head of the Albigensian Crusade for the next two years, went on to burn 80 men and women after his capture of Minerve. Further indiscriminate deaths followed at Termes, Casses and Lavaur. In the last instance, 400 citizens were captured and burned to death 158   Meron, T (1993) Henry’s Wars and Shakespeare’s Laws (Oxford, Oxford University Press) 82; Barber, R (ed) The Life and Campaigns of the Black Prince: From Contemporary Accounts (London, Folio) 105; McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 191; Prestwich, M (1995) Armies in the Middle Ages (NYC, Yale University Press) 191, 239; Farrington, K (2003) A History of Punishment and Torture (London, Hamlyn) 49; Bury J (ed) (1957) The Cambridge Medieval History. Contest of Empire and Papacy, Vol V (Cambridge, Cambridge University Press) 428–29, 435; Tanner J (ed) (1957) The Cambridge Medieval History. Decline of Empire and Papacy, Vol VII (Cambridge, Cambridge University Press) 3. 159   Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 189; Runciman, S (1954) A History of the Crusades, Vol 1 (Cambridge, Cambridge University Press) 137–41; Rowden, M (1974) The Spanish Terror (London, Constable) 41–56; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 281; Potter, G (ed) (1969) The New Cambridge Modern History. The Renaissance, Vol 1 (Cambridge, Cambridge University Press) 336–38. 160   Madaule, J (1967) The Albigensian Crusade (London, Burns) 65.

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whilst 80 captive knights were hanged. Some 5,000 people were killed following the fall of the Marmande in 1219. When Montsegur surrendered 14 years later, over 200 men and women were dragged out of the city and burnt. Against pagans, the restraints were even fewer, with the Northern Crusade, from 1260 onwards, adopting a policy of slaughtering populations wholesale, with little or no quarter given to the ‘Moabites’ in what is modern-day Lithuania. Similar policies are also recorded with parts of the Wendish campaign against the Polabian Slavs. However, the conquered communities could, when they revolted, pay back in kind. Thus, around the year 1250 more than 40,000 Germanic Christians who had been settled in Prussia were massacred when the tribes rose up. When the Teutonic knights recaptured all of the rebellious areas, atrocities allegedly followed suit. For example, when the besieged Danzig surrendered in 1308, the 10,000 survivors, men, women and children, were all put to the sword.161 In the Middle East, the attacks on non-combatants did not always involve formal sieges. For example, in 1096 when the so-called ‘People’s Crusade’, largely made up on non-combatants, arrived in Western Asia Minor the Turks descended upon this collection of people and killed all but the most attractive girls and boys, who were kept for slavery. Then there was the so-called Children’s Crusade of 1212, in which perhaps 30,000 people, largely made up of non-combatants met a very similar fate. The overrunning of the Crusader camp at the battle of Mersivan in 1101 saw the killing of all the camp followers as well as all of the captured soldiers. Another pilgrim camp was overrun and all of the inhabitants massacred by Egyptian horsemen in 1106. Likewise, the Christian caravan that was overrun in 1191 by the forces of Saladin saw everyone except the washer-woman executed.162 In terms of indiscriminate killings following the breach of defended walls, the practice of both Islamic, Byzantine and western Christian warriors was very similar. The Byzantines, in their wars with the Bulgars, left a legacy of sacked cities like Pliska in 809 and Preslav in 972. With their wars with Islam, when the capital of Muslim Crete fell in 961, it is said that after all the men were killed, the women, old and young were raped, murdered and thrown aside, whilst the children were quickly executed or sold into slavery. A similar fate met Aleppo when it fell in 962.163 In the Muslim context, the indiscriminate sacking of cities can be traced to as early as 687 with the wars between the Shi’ites and the Sunni.164 By the time that Islam had spilled out of the Arabian Peninsula, the same practice of indiscriminate slaughter as the reward for those who did not accept terms was established. Sacks of communities and the massacre of Christian communities were evident in parts of the Aegean, Middle East, North Africa and Spain in the eighth and ninth centuries. For example, when Amorium fell in 842, the overwhelming majority of the persons inside the besieged area were killed, with the majority of civilians being burnt to death as they 161   Madaule, J (1967) The Albigensian Crusade (London, Burns) 70–71, 87, 115–17; Norwich, J (1991) Byzantium. The Apogee (NYC, Knoff) 57–59, 131; Seward, D (1974) The Monks of War (Herts, Penguin) 108– 109; Bury J (ed) (1957) The Cambridge Medieval History. Contest of Empire and Papacy, Vol V (Cambridge, Cambridge University Press) 353–55; Tanner J (ed) (1957) The Cambridge Medieval History. Decline of Empire and Papacy, Vol VII (Cambridge, Cambridge University Press) 254–55, 258–61. 162  Runciman, S (1954) A History of the Crusades, Vols 1, 2, 3 (Cambridge, Cambridge University Press) 131–32; 24, 29; 3, 58; Dickson, G (2007) The Children’s Crusade (London, Palgrave) 121–25; Maalouf, A (2006) The Crusades Through Arab Eyes (Paris, Sagi) 8–9, 64–65, 135, 194–95. 163  Norwich, J (1991) Byzantium. The Apogee (NYC, Knoff) 7–8, 20, 178–79, 180–81, 223. 164  See Foss, C ‘Islam’s First Terrorists’ History Today (12 December 2007).

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sought shelter in the church. The 42 survivors of the entire city who made it back to Samarra, were given the choice between converting to Islam or death. All of them chose without hesitation to die, and on 6 March 845, they were all decapitated on the banks of the Tigris – to go down in the history of the Greek Orthodox Church as the Forty-Two Martyrs of Amorium. In the tenth century, the Muslims in Spain sacked Leon in 996 and the following year the city of St James at Compostela (ranked third as a place of pilgrimage after Jerusalem) was burnt to the ground. The Muslim storming of Kharpurt in 1124, after refusing terms, saw all except the Christian king and two others executed. The massacre of all the fighters and slavery for all the women and children followed the storming of Edessa in 1154, Ardzen in 1059, Ani in 1064 and Caesarea in 1067. Saladin had Jaffa stormed in 1187, after the town would not yield to him. Most of the survivors were sent to the slave markets. The sack of Jerusalem in 1244 (after it had been returned to the Christians via treaty) by forces in the pay of the Egyptian Sultan saw the deaths of at least 7,000 men, women and children. Siege, storm and sack was also the fate of Aleppo in 1260, Safad in 1266, Antioch in 1268, Marqab in 1285, Tripoli in 1289 and Acre in 1291.165 Tamerlane undertook the sack of Urganch in 1379, which he systematically destroyed, and planted barley atop of the ruins. Two thousand survivors were piled on top of one another and cemented alive into towers of clay and bricks in the city of Isfizar in 1383. Tabriz was fully destroyed in 1386. In Isfahan in Persia, some 70,000 were slaughtered in 1387. Kat was destroyed in 1397 as was Balkh in 1398. When Baghdad was sacked in 1387, 90,000 people were killed, after which their heads were removed and cemented into 120 towers. Damascus and Aleppo also witnessed extreme horrors. Delhi was sacked in 1398. Tamerlane explained the uncontrollable sack of Delhi, where he admits he lost control of his troops, as ‘the will of God that this calamity shall fall on this city’.166 When Baghdad was sacked in 1402, it is said that another 90,000 were killed. Thousands more were killed when Smyrna was added to the list of indiscriminate slaughters. In the lead up to the destruction of the Byzantine Empire in 1452, Selymbria and Perinthus were stormed. When Constantinople itself was stormed, the initial stages of the sack saw over 4,000 men, women and children killed without discrimination, before the rest were made into slaves. At the end of the century, when Zahara, in Spain was sacked by Muslim forces in 1481, most of the population were put to the sword.167 Christian forces worked in ways that could lead to the large-scale deaths of noncombatants. Whilst this was possible with the conduct chevauchees (where both the countryside and those within it could be caught or killed),168 the more notable instances involved the sacking of defended areas that had refused to surrender. The sack of Antioch in 1098 saw an indiscriminate slaughter of thousands who were within the 165  Runciman, S (1954) A History of the Crusades, Vols 2, 3 (Cambridge, Cambridge University Press) 164, 236–37, 461; 306, 325, 420; France, J (1999) Western Warfare in the Age of the Crusades 1000–1300 (London, UCL Press) 227–29 288; Seward, D (1974) The Monks of War (Herts, Penguin) 84, 91; Gibbon, E The Decline and Fall of the Roman Empire 1926 edn, Vol VI (London, Methuen) 35–45, 48–49, 53, 246; Bury J (ed) (1957) The Cambridge Medieval History. Contest of Empire and Papacy, Vol V (Cambridge, Cambridge University Press) 315; Norwich, J (1991) Byzantium. The Apogee (NYC, Knoff)) 48–49, 341–44. 166   ‘Tamerlane’ in Chaliand, G (ed) The Art of War in World History (California, California University Press) 489. 167   Marozzi, J (2005) Tamerlane: Sword of Islam (London, Harper) 42–43, 78–80, 138–39, 199, 271–74, 290, 292–96, 306–307; Runciman, S (1964) The Fall of Constantinople 1453 (Cambridge, Cambridge University Press) 74, 148–50; Seward, D (1974) The Monks of War (Herts, Penguin) 185. 168  Noted in Prestwich, M (1995) Armies in the Middle Ages (NYC, Yale University Press) 243.

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walls, including the local Christian community. This was largely a repeat pattern, as the same city had been sacked by Byzantine forces the century before in 969, with the execution of all the males of fighting age and slavery for the rest. The city of Ma’arra suffered a similar fate, also in 1098 as did Haifa, which was stormed in the year 1100. In the same year, when Beirut was stormed, the population was subjected to a massacre so horrific that Baldwin I (1058–1118) intervened and insisted the survivors be allowed to surrender. When the defenders of Caesarea refused terms in 1101, the eventual sack saw indiscriminate massacres of the vast majority of people within the walls, including those who sought sanctuary in the Great Mosque, which had once been the synagogue of Herod Agrippa. The fortresses of Tortosa in 1102 and Tripoli in 1110 can be added to this list.169 The most renowned sack of this period by the Crusaders actually occurred a few years earlier in 1099, when Jerusalem was taken. This sack occurred a mere 22 years after the city had been sacked by the Seljuks and their earlier slaughter of perhaps 3,000 people. Exactly how many were killed in the 1099 sack of Jerusalem is a matter of debate. Commentators recorded: ‘[O]ur men rode in the blood of the Saracens upto the knees of their horses’ whilst others recorded the victors, ‘dripped with blood from head to foot’.170 The people were killed without regard to their age, sex or religious preference. The figures for the number killed ranged from 20,000 (by estimate of the Christian chroniclers) to 100,000 (by the Muslim chroniclers). Only a very few people managed to escape after promising the Crusading leaders vast sums of treasure.171 Similar indiscriminate slaughter following breached walls occurred with the capture of Bilbeis in 1158, Lisbon in 1147 (where the terms of surrender were not honoured by the Christian forces), Nablus in 1242 and, most incredibly, with the sacking of the Byzantine capital, Constantinople in 1204 when the Frankish Crusaders allowed the indiscriminate killing of over 2,000 Christian citizens of the city, along with the rape of thousands more, and then the looting of their treasures. When Alexandria was sacked in 1365 perhaps 20,000 native Christians, Jews and Muslims who were all sheltering within the cities walls were killed.172 In addition to such behaviours in the Middle East, within Europe, the indiscrim­inate killing of civilians following a siege or uprising was not greatly different to elsewhere. Rome was sacked for three days by the troops of Robert Guiscard (1015–85) in 1083, after his intervention to save the papacy. Bayeux was razed in 1105 when it refused to yield to Henry I (1068–1135), as was Augsburg in 1132, Argon in 1133 and Ulm in 1134 when their defenders rejected a similar offer. Waterford and Wexford were sacked by Strongbow (1130–76) in Ireland in 1170, with a heavy loss of men, women and children in both instances. The warfare which decimated Germany around the turn of the thir169  Runciman, S (1954) A History of the Crusades, Vols 1, 2 (Cambridge, Cambridge University Press) 89, 234; 73; McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 164–66, 174. 170  Anon (1099) ‘The Capture of Jerusalem’’ in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 61. 171   McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 155–59; France, J (1999) Western Warfare in the Age of the Crusades 1000–1300 (London, UCL Press) 227; Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 25, 100; Runciman, S (1954) A History of the Crusades, Vol 1 (Cambridge, Cambridge University Press) 286; Maalouf, A (2006) The Crusades Through Arab Eyes (Paris, Sagi) 38–39, 50–51. 172  Runciman, S (1954) A History of the Crusades, Vol 3 (Cambridge, Cambridge University Press) 123, 446; Seward, D (1974) The Monks of War (Herts, Penguin) 52, 76, 225.

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teenth century was known for the devastation of towns and villages being burnt to the ground and the inhabitants subjected to the most loathsome ignominies. If we are to believe the contemporary accounts perpetuated by Bohemian soldiers fighting under the standard of King Ottokar (1233–78), his soldiers would not fight unless promised ‘free licence of plundering’.173 When Edward I (1239–1307) sacked Berwick castle in 1296, some 7,000 to 8,000 men, women and children were killed. The fall of Kildrummy Castle a few years later in 1306 saw all the defenders killed and all of the ladies of the castle being transported back to England and placed around London in special cages.174 The indiscriminate massacre of men, women and children was even greater when dealing with the popular insurrections that flared up in France in 1251 and 1358, Sicily in 1282, repeatedly in the Netherlands during the second half of the thirteenth century, and in England with the so-called Peasants Uprising in 1381. In all of these instances, as the peasants massed and learnt to attack the authorities in very informal and relatively uncontrolled ways, the authorities tended to respond with force, crushing all of those associated with the uprisings. For example, with the Sicilian Vespers of 1282, when the authorities attacked the insurgents, more than 2,000 men, woman and children were killed on the first night. Given that some of the insurgents were French in origin, practically all French-related people, including clerics known to be French, were executed.175 Sack and massacre were evidenced in the Hundred Years’ War, at Cherbourg, Montebourg, and especially Caen in 1346 where the English, after storming the town, put the entire population to the sword. The sack, despite Edward’s attempt at restraining his troops, lasted three days and killed around 3,000 townspeople.176 When the Black Prince and his men sacked the city of Limoges killing between 500 and 3,000 people in 1370 it was stated: It was a most melancholy business; for all ranks, ages and sexes cast themselves on their knees before the prince, begging for mercy; but he was so inflamed with passion and revenge that he listened to none, [and] all were put to the sword, wherever they could be found.177

William Shakespeare (1564–1616) caught the nature of siege warfare perfectly in this epoch in a speech he put into the mouth of Henry V, demanding the surrender of Harfleur or else the murder, rape and looting of every person, without distinction, in the city before their siege ended. In reality, when Henry V sacked Harfleur, in 1415, 2,000 died, as was approximately the same amount when he sacked Caen in 1417.178 When 173   ‘Ottokar’ noted in Tanner, J (ed) (1957) The Cambridge Medieval History. Victory of the Papacy, Vol VI (Cambridge, Cambridge University Press) 50–51; Bury J (ed) (1957) The Cambridge Medieval History. Contest of Empire and Papacy, Vol V (Cambridge, Cambridge University Press) 79, 339–40; Roche, R (1995) The Norman Invasion of Ireland (Dublin, Anvill) 163–74. 174  Nusbacher, A (2005) 1314: Bannockburn (Gloucestershire, Tempus) 1–2; Morillo, S (1994) Warfare Under the Anglo-Norman Kings (Suffolk, Boydell) 100; Gravett, C (1990) Medieval Siege Warfare (London, Osprey) 18; Warner, P (2004) Sieges of the Middle Ages (Yorkshire, Pen and Sword) 159. 175   Cheyney, E (1962) The Dawn of a New Era : 1250-1453 (NYC, Harper) 110–39. 176  Seward, D (2003) The Hundred Years War (Robinson, London) 58–59. 177   Chronicles by Sir John Froissart trans Johnes (1839) 453–54, vii, 250; Barber, R (ed) The Life and Campaigns of the Black Prince: From Contemporary Accounts (London, Folio) 29–33; Seward, D (2003) The Hundred Years War (London, Robinson) 112; Rogers, C (2002) ‘By Fire and Sword’ In Grimsley, M (ed) Civilians in the Path of War (NY, University of Nebraska Press) 46; Meron, T (1993) Henry’s Wars and Shakespeare’s Laws (Oxford, Oxford University Press) 89–90; McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 181. 178  See Shakespeare’s Henry V 3.4.7. Also, Seward, D (2003) The Hundred Years’ War (London, Robinson) 172–73.

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Paris fell (within a civil war in France) in 1418 to the Burgundians, perhaps 5,000 were killed. The fall of Jargeau in 1429, after a storming lead by Joan of Arc (1412–1431), saw a sacking of a town. In 1440, John Talbot (1384–1453), knight of the Garter, was responsible for the burning of over 300 men, women and children who had taken sanctuary in a church at Lihons. When Luxembourg was taken by the Burgundians in 1463, after Philip the Good (1396–1467) had entered the town and been to the Church of Notre Dame to give thanks, he then, and only then, gave permission for the whole town to be systematically plundered from one end to the other.179 The exemplar of all sacks of this epoch was probably Genghis Khan (1167–1227). If a besieged area accepted the terms of the surrender offered to them, they were obliged to hand over hostages. It is said that Khan took such people ‘in the thousands’.180 If a besieged area refused to accept the terms he offered them, he would proceed to act upon what he considered to be the ‘greatest joy’ – massacring one’s enemies, taking their possessions and ravishing their women. His generals, like him, were exceedingly ruthless. By one account, 1,747,000 people in Nishapur were killed by Mongolians. This was a notable sack, as all of those men, women and children who survived the initial storm were taken out into the plain to be dispatched. After this, the site was ploughed over so that ‘not even cats and dogs should be left alive’.181 In 1219 Kahn’s army captured Bokhara of which 30,000 people were indiscriminately killed afterwards. Another 30,000 – who did not surrender immediately when his troops breached the wall – were killed when Samarkand fell. The centre of Ostar was destroyed so thoroughly in the same year, that it took over 800 years for archaeologists to find out where it once stood. In 1221, a Mongolian army seized Merv and reportedly 50,000 soldiers were tasked to killing 24 prisoners each. This took 13 days and an estimated 1,200,000 people were killed. Historians also record that in 1220 the Mongols killed 50,000 in Kazvin after it was captured, 70,000 in Nessa and a similar number in Sebzevar. It is written that in 1221, the Mongol general Tuliu slew 700,000 to 1,300,000 people in Meru Chahjan, one of the four main cities in Northern Persia. The entire city of Rayy was destroyed, but when Herat was taken, only the 12,000 soldiers and their dependents were killed – until they later rebelled, at which point an estimated 1,600,000 were captured and put to the sword. When Ning-hsia fell in 1233, all of the defenders were killed. When Ningxia fell in 1227, in accordance with the last wishes of Genghis Khan before he died, all of the inhabitants were put to the sword. Although Khan had now died, his empire and methods of warfare continued. The Russian forts of Riazan, Kolomna, and the city of Vladimir (the then capital) all suffered the same fates of indiscriminate massacres following breached walls in 1237–38 as did Moscow and other cities. The grandson of Khan, ‘Batu the Splendid’, burnt Kiev to the ground in 1240 and massacred every living soul, after the city had resisted his demands for its surrender. Similar approaches continued as the Mongolian forces ravaged Hungary, capturing Pest, Gran and Zagreb. When the Mongols sacked Baghdad in 1258, some 179   Keen, M (1965) The Laws of War in the Late Middle Ages (London, Routledge) 122; Lucie-Smith, E (1976) Joan of Arc (London, Penguin) 44, 133; Prestwich, M (1995) Armies in the Middle Ages (NYC, Yale University Press) 252. 180   Turnbull, S (2003) Genghis Khan and the Mongol Conquests (London, Osprey) 38, 44; Man, G (2004) Genghis Khan (London, Bantham) 140. 181   Turnbull, S (2003) Genghis Khan and the Mongol Conquests (London, Osprey) 25.

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80,000 people are believed to have been killed, with only the local Christians being allowed to survive. Aleppo suffered a similar fate the following year.182 As noted at the beginning of this section, the rape of women was commonly recognised as a crime to be prevented. In many instances, when dealing with women of a high economic class, this may have occurred both in Europe and the Middle East. Indeed, in some instances, these chivalric practices were international. For example, when Nicaea was taken by terms in 1097, the daughters of the Emir were treated with utmost respect and allowed to leave without ransom when their husband indicated where he wanted them to be sent. Similarly, when Baldwin I of Jerusalem (1058–1118) captured a Muslim caravan, including the pregnant wife of a local sheik, he ordered her to be released, along with maid-servants, food, drink and camels. Saladin also had a reputation for chivalry in this area.183 However, when dealing with women that were not of the classes that chivalry naturally applied to, it appears that rape as a payment for ransom was a common fate. Sometimes, such as with the Byzantine wars around 815, peace was only offered if ‘a selection of the most beautiful maidens that the Empire could provide’ were handed over in exchange.184 Moreover, soldiers of this period were often difficult to control. Thus, although Edward, in the Hundred Years’ War had ordered his troops to spare churches and the women inside them, when settlements like Caen were sacked, these buildings were stormed and the nuns raped. A similar storming of a convent in 1380 by the Englishman Sir John Arundel (1348–85) allowed all of the nuns to be raped, tortured and carried off on the campaign. Sexual abuse of female (and male) captives also appears to have been well established as both a justification and result during the Crusades. For example, in appealing for recruits during the First Crusade, the Byzantine Emperor Alexius (1048–1118) is supposed to have extolled the beauty of Greek women as an incentive to go to war. When Constantinople fell to the Franks in 1204, the rape of the other Christians was so prevalent that Pope Innocent (1160– 1216) explicitly condemned the practice.185 Medieval Islamic jurisprudence laid down severe penalties for those who committed the crime of rape. Nevertheless, sex slavery was common during the medieval Arab slave trade, where those captured after battle from non-Arab lands often ended up as sexual slaves in the Arab World. Accordingly, during the First Crusade, when their base camp was captured, only the young and the beautiful were spared. Rape was a particular problem with regard to situations of sack. In some instances, such as with the fall of Antioch in 1265, a number of women cut off their own noses with scissors and gashed their cheeks to avoid rape. The appalled Muslims slaughtered them on the spot. In other instances, such as with the fall of Acre in 1291, rape started to occur as soon as the surrender commenced, which forced the besieged to withdraw their offer 182   Turnbull, S (2003) Genghis Khan and the Mongol Conquests (London, Osprey) 22, 26, 45, 47–51, 53, 76–77; Man, G (2004) Genghis Khan (London, Bantham) 143, 159–63, 172, 174–77; Juvaini, A (1997) Genghis Khan: The History of a World Conqueror (Manchester University Press/Paris UNESCO) 87, 89, 91–92, 96, 98–99, 106–107, 115, 117, 120–22, 127–37, 145, 160–62, 192–95, 269, 360, 395, 443; Runciman, S (1954) A History of the Crusades, Vol 3 (Cambridge, Cambridge University Press) 245, 150, 251, 303. 183  Runciman, S (1954) A History of the Crusades, Vols 1 and 2 (Cambridge, Cambridge University Press) 182; 72; Maalouf, A (2006) The Crusades Through Arab Eyes (Paris, Sagi) 177–79, 197–98. 184  Norwich, J (1991) Byzantium. The Apogee (NYC, Knopf) 18. 185  Runciman, S (1954) A History of the Crusades, Vol 3 (Cambridge, Cambridge University Press) 123; Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 176–77, 194; Seward, D (2003) The Hundred Years’ War (London, Robinson) 59, 85, 125.

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to surrender and fight to the end. When Constantinople fell in 1453, both females and young males were captured and repeatedly raped. However, it is notable that Mehmet II (1432–81) did show some restraint with some of the noble ladies who he freed – but he retained the fairest of their young sons and daughters for his own seraglio. This was a pattern that was followed in the coming century, with Ottoman soldiers going out of their way to capture females of renowned beauty as gifts for their sultan. Tamerlane recognised that the despoiling of captured harems was one of the most delicious prizes of war.186 On this topic, Tamerlane largely parroted Genghis Khan who was reputed to say that man’s greatest fortune was to kill their enemies and: ‘[U]se the bodies of his women as nightshirts and supports, gazing upon and kissing their rosy breasts, sucking their lips, which are as sweet as the berries of their breasts’.187 6.  Forward From the Renaissance

By the turn of the sixteenth century, most of the legal scholars of the age were directly questioning methods of warfare that were excessive and out of all proportion to what could be justified by military necessity. Ayala (1548–84),188 Francisco Suarez (1548– 1617),189 Emerich de Vattel (1714–67),190 and Francisco Vitoria (1492–1546) all emphasised this point. As a practical example of this type of thinking, Vitoria suggested: [If] little effect upon the ultimate issue of the war is to be expected from the storming of a fortress . . . wherein are many innocent folk, it would not be right, for the purpose of assailing a few guilty, to slay the many innocent by . . . means likely to overwhelm indifferently both innocent and guilty.191

Within this changing thinking, Ayala,192 Suarez,193 Vitoria194 and Vattel,195 in addition to Alberico Gentili (1552–1608)196 and Pierino Belli (1502–75),197 all recognised the 186  Runciman, S (1964) The Fall of Constantinople 1453 (Cambridge, Cambridge University Press) 146–47, 149; Marozzi, J (2005) Tamerlane: Sword of Islam (London, Harper) 7, 43–44, 68–69; Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 176; Seward, D (1974) The Monks of War (Herts, Penguin) 84, 94; Contamine, P (1984) War in the Middle Ages (Oxford, Blackwell) 57. 187   Khan, noted in Marozzi, J (2005) Tamerlane: Sword of Islam (London, Harper) 13; Man, G (2004) Genghis Khan (London, Bantham) 116–17. 188  Ayala, B (1582) Three Books on the Laws of War (Baltimore Press, Classics of International Law) 107. 189  Suarez, F ‘De bello’ in Scott, JB (1944) Selections From Three Works of Francisco Suarez. Original Latin Text (Oxford, Carnegie Institute, Oxford University Press) Volume I, 7, 15, 16. 190   Vattel, E (1758) The Law of Nations or the Principles of Natural Law trans Scott, JB (1916) (Oxford, Carnegie Institute, Oxford University Press) 14, 294. 191  Vitoria De Jure Belli No 32, 35, 36, 37, 48, 52 and 66. Vitoria On the Indians App A, xxix in Scott, JB (1944) Selections From Three Works of Francisco Suarez. Original Latin Text (Oxford, Carnegie Institute, Oxford University Press) Vol I, 152. Also, Pagden, A (ed) Vitoria: Political Writings (Cambridge, Cambridge University Press) 314–15. 192  Ayala, B (1582) Three Books on the Laws of War (Baltimore Press, Classics of International Law) Book I: V: 25. 193  Suarez, F ‘De Bello’ in Scott, JB (1944) Selections From Three Works of Francisco Suarez. Original Latin Text (Oxford, Carnegie Institute, Oxford University Press) Volume I, Sec VII: 6. 194   Vitoria ‘De Jure Belli, No 40’ in Pagden, A (ed) Vitoria: Political Writings (Cambridge, Cambridge University Press) Also, Rights of War and Peace, in the same volume, III.11.vii. 195   Vattel, E (1758) The Law of Nations or the Principles of Natural Law, trans Scott, J.B (1916) (Oxford, Carnegie Institute, Oxford University Press) 282. 196  See also, Van-der-Molen, G (1930) Alberico Gentili and the Development of International Law (Amsterdam, Paris Printers) 142–50. 197   Belli, P (1563) A Treatise of Military Matters and Warfare. trans Nutting, HC (1936) (Oxford, Carnegie Institute, Oxford University Press), 15, 63.

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ideal of the protection of the women, children, elderly men, and males not involved in the conflict, whenever possible. Hugo Grotius (1583–1645) suggested: Though there may be circumstances, in which absolute justice will not condemn the sacrifice of lives in war, humanity will require that the greatest precaution should be used against involving the innocent in danger, except in cases of extreme urgency . . . it behoves all Christian Princes to prohibit all unnecessary effusion of blood . . . Age [ie the old and children] and sex [ie women] are equally spared . . . the same rule may be laid down with respect to males whose modes of life . . . are remote from the use of arms.198

These general rules were supplemented by considerations given to specific classes of people. This was most notable in the need to protect women from rape in times of warfare as Europe emerged into the Reformation. This need soon became entrenched in a surprising number of legal codes. Henry VIII (1491–1547) and Charles I (1600– 49) had such restrictions, whilst the articles of war decreed by Gustavus II Adolphus of Sweden (1594–1632) in 1621, in an attempt to stop the entrenched practice of rape during the Thirty Years’ War, made it an offence for his troops to ‘tyrannise over any Churchman, or aged people, Men or Women, Maidens or children, unless they first take arms against them’. He also promised that any of his men convicted of rape would be executed.199 These approaches to the question of rape were reiterated by the notable legal commentators of the period, such as Gentili,200 Suarez,201 Richard Zouche (1590–1661)202 and Christian Wolff (1679–1754). The latter explained: ‘Soldiers ought not to be allowed by their officers to commit rape on women and maidens, nor, since it is illegal in itself, does the right of war excuse it, must less justify it’.203 Even some pirates or privateers, despite the practice of rape being known to many, had strict codes to prevent its occurrence. In some instances, such as when Vera Cruz was taken by Francis Drake (1540–96) in 1573, upon learning that three noble woman had recently given birth, he personally went to visit them to assure them that they would not be harmed. Some soldiers from this period clearly acted in accordance with such proclamations and behaved with distinct chivalry and the protection of women and maidens in distress, regardless of which side they were on. For example, when Rome was sacked in 1527, although rape occurred in many areas, the Lutheran landsknechts took the Catholic nuns under their protection, defending them against their fellow Lutherans as well as Spanish and Italian Catholics. However, aside these small acts of humanity, rape was extreme in other areas of Rome after the city had been 198

363.

  Grotius, H (1625) The Rights of War and Peace trans Whewell, W (1913) (London, Dunne) 360, 361,

199   Meron, T (1993) Henry’s Wars and Shakespeare’s Laws (Oxford, Oxford University Press) 150; Ogren, K (1996) ‘The Arts of War Decreed by King Gustavus II Adolphus of Sweden in 1621’ International Review of the Red Cross 313: 438–42. Also, Parker, G (1997) The Thirty Years’ War (London, Routledge) 179; Macartney, C (ed) (1970) The Habsburg and Hohenzollern Dynasties (NYC, Harper) 21. 200   Gentili, ‘to violate the honour of women will always be unjust’, Gentili, A (1594) De Jure Belli Libri Tres 1933 edn trans, Manheim, P (Oxford, Carnegie Institute, Oxford University Press) 251, 257. 201  Suarez, F ‘De bello’ in Scott, JB (1944) Selections From Three Works of Francisco Suarez. Original Latin Text (Oxford, Carnegie Institute, Oxford University Press) Vol 1, 45. 202   When speaking of the use of rape in war, he argued that ‘unbridled lust ought to be no more to be unpunished in war than in peace’; Zouche, R (1650) An Exposition of Fecial Law and Procedure, or Of Law Between Nations and Questions Concerning the Same trans Eskine, T 1911 (Oxford, Carnegie Institute, Oxford University Press) 112, 180. 203   Wolff, C (1764). Jus Gentium Methodo Scientifica Pertractatus trans James, T (1934) (Oxford, Carnegie Institute, Oxford University Press) 449.

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forced, as appears to have occurred during many of the wars of the sixteenth, seventeenth and eighteenth centuries. For example, it is said that the Conquistadors in both Mexico and Peru came to desire the local woman almost as much as the gold they coveted. In the English Civil War, rape was linked to a number of Royalist forces. This was unlike the forces of Parliament which were initially scrupulous in their punishment of soldiers guilty of rape. However, atrocious acts were carried out on a group of women who were taken with the Royalist baggage train after the battle of Naseby in 1645.204 On the topic of hostages, some notables from this period advocated restraint. The minority view of Honore Bovet (c 1340–1410) suggested that ‘it is an unworthy thing to imprison either old men taking no part in the war or women or innocent children’.205 Charles V (1500–1558) showed mercy when he decided not to execute the two sons of Francois I (1494–1547) when Francois breached the terms of his release with the 1526 Treaty of Madrid.206 Although Charles was within his rights to execute them, he decided to keep them for three years in conditions that were so poor that Jean Bodin (1530–96), the eminent French jurist, said he burst into tears when he saw them. Nevertheless, Bodin did not shirk from the importance of the giving and taking of hostages as a way to achieve peace between countries.207 Most of the eminent fathers of international law, including, inter alia, Gentili,208 Vitoria and even Grotius, whilst all concerned about the moral justice of allowing innocent people to be used as collateral with their lives and liberties for the actions of others, and hoping that the ‘innocent’ would have at least some connection to the wrongdoing, did not suggest that the taking of hostages was illegal. Grotius did, however, suggest that ‘the taking of lives of innocent subjects’ as reprisals, as opposed to their property or the lives of those surrendered as hostages, can ‘never be reconciled either to sound religion or morality’. This is unlike publically surrendered hostages who may be ‘considered as an appendage to treaties’. He added that ‘the law of nations’ allows putting to death of these people in certain circumstances.209 The laws applicable to siege warfare continued as they had for the previous 2,000 years. The offering of terms remained part of the practice of the Renaissance, to which Machiavelli turned his mind (recommending the offering of very generous terms before committing forces to siege)210 and the Reformation that followed it. The acceptance of such terms were noted with the surrender of Breda in 1625 and Namur 204   Downing, T (1991) Civil War (London, Gardner) 96–97; Robertson, J (2006) The Tyrannicide Brief (London, Vintage) 68; Lynn, J (2002) ‘The Devastation of the Palatinate’ in Grimsley, M (ed) Civilians in the Path of War (NY, University of Nebraska Press) 86; Chamberlin, E (1979) The Sack of Rome (London, Batsford) 174; Earle, P (2004) The Pirate Wars (London, Methuen) 102, 117, 127, 172–73; Cordingly, D (2006) Under the Black Flag (NYC, Random) 76; Wood, M (2000) Conquistadors (London, BBC Books) 154, 156, 157, 160; Hemming, J (1970) The Conquest of the Incas (London, Macmillan) 129–30; Rowdon, M (1974) The Spanish Terror (London, Constable) 143. 205   Bovet, H (1387) L’arbre de batailles trans Jones, T (1942) (London, Penguin) 202. 206   Treaty of Madrid 1526, Art IV. 207   Franklin, J (ed) Bodin: On Sovereignty (Cambridge, Cambridge University Press) 62–64; Chamberlin, E (1979) The Sack of Rome (London, Batsford) 103. 208   Gentili, A De Iure Belli Libri Tres trans Rolfe, J (1933) (Oxford, Carnegie Institute, Oxford University Press) II:243. 209   Grotius, H (1625) The Rights of War and Peace, trans Whewell, W 1913 (London, Dunne) 312–13, 330–31, 400–401; Pagden, A (ed) Vitoria: Political Writings (Cambridge, Cambridge University Press) 319. 210   Machiavelli, N (1560) The Art of War trans Whitehome (1990) (Connecticutt, Eastern Press) 215.

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in 1695, although in the latter instance, they were not honoured by the English.211 The offering and accepting of terms was also recorded during the wars of Louis XIV, although these were not always honoured by the Jacobites in Ireland. In such conflicts, the practice was one whereby the terms would usually be initially generous, offering the inhabitants a freedom to leave with all their possessions or stay in the country under protection, subject to accepting a new oath of allegiance. As time wore on, the terms would come to an end, with clear threats that if they were not accepted when the walls were breached, there be ‘no quarter to either age or sex’.212 Likewise, despite being of a completely different faith, Kara Mustafa (1634–83) would offer a summons to surrender to the commander of Vienna in 1683 which would stipulate: Accept Islam, and live in peace under the Sultan! Or deliver up the fortress and live in peace under the Sultan as Christians; and if any man prefer, let him depart peaceably, taking his goods with him. But if you resist, then death or spoliation or slavery shall be the fate of you all.213

Failure to accept terms of surrender in the sixteenth and seventeenth centuries resulted in the continuing practices of indiscriminate slaughter following the breach of walls after terms had been denied. The most notable opening slaughters of this period began with the massacres by the Conquistadors. The moment at which Herman Cortes (1485–1547) seized Montezuma in 1519 occurred in an Aztec temple in which, for a three-hour period, the Spaniards killed as many unarmed people as they could. Two years later in 1521, Cortes laid siege to the Aztec city of Tenochtitlan where, following an eight-month siege from which the defenders were starved of food and water, the city was stormed and perhaps 100,000 defenders died as a result.214 The capture of Atahualpa in 1532 followed a very similar pattern, with his being lured into an area where his supporters were defenceless, before being fallen upon by the Spanish, whereupon a two-hour slaughter began.215 The sack of Rome in 1527 by Habsburg soldiers saw between 9,800 and 12,000 civilians killed.216 Ivan the Terrible (1530–84) utterly destroyed rebellious cities which rejected his authority. When Novgorod fell in 1569, it is said that he instigated a period of rape, torture and execution which claimed perhaps 20,000 people over a five-week period.217 Similar atrocities were also linked to the Muscovite forces as they battled Swedish and Polish-Lithuanian opponents. Of course, these opposing sides reapplied in kind. Thus, when Narva fell in 1581, over 7,000 Muscovite soldiers and civilians are believed to have been killed after the battle ended. Similarly, when Kokenhausen fell in 1601, one source claims that 2,000 men, women and children were killed or drowned in the river Dvina.218 With the reconquest of Spain, when Galera was sacked in 1570, the entire population of 2,500 was put to the sword.219 Conversely, when Nicosia was sacked 211   Childs, J (2001) Warfare in the Seventeenth Century (London, Cassell) 143, 148; Melegari, V (1981) Great Military Sieges (London, Ferndale) 145, 165. 212   Gebler, C (2005) The Siege of Derry (London, Abacus) 180; Childs, J (2001) Warfare in the Seventeenth Century (London, Cassell) 143, 148, 241–42, 243, 251. 213  Stoye, J (2000) The Siege of Vienna (Reading, Birlinn) 119. 214   Wood, M (2000) Conquistadors (London, BBC Books) 69–70, 99. 215   Hemming, J (1970) The Conquest of the Incas (London, Macmillan) 42–44. 216   Chamberlin, E (1979) The Sack of Rome (London, Batsford) 161, 181. 217  Pavlov, A (2003) Ivan the Terrible (Essex, Pearson) 44–47, 149–52. 218   Frost, R (2000) The Northern Wars (Pearson, London) 78–81. 219   Capponi, N (2006) Victory of the West. The Battle of Lepanto (London, Macmillan) 117.

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by Ottoman troops in the same year, an estimated 20,000 Venetians were killed after the walls were breached. As the Tudors recaptured rebellious areas of Ireland in the 1570s, the massacre of non-combatants within the defended areas which were stormed was well recorded. Sir Humphrey Gilbert (1539–83) had justified ‘the slaughter of noncombatants on the grounds of expediency’.220 Thereafter, he reportedly captured over 20 castles and slaughtered all the occupants, including women and children. Similarly, when Francis Drake captured Rathlin Island off the coast of Antrim in 1574, the entire civilian population was massacred. Elsewhere, as Spain attempted to tighten its grip on its increasingly disgruntled areas, vicious sacks often followed the rejection of terms. For example, when Mechelen was stormed in 1572, a three-day orgy of sack and plunder followed. It was said that ‘the desolation was so complete that not even a nail was left on the wall’.221 The sacking of Aalst and Antwerp in 1576 saw wholesale looting, rape and slaughter and the death of up to 8,000 citizens. When Lisbon fell in 1578 to the troops of Phillip II (1527–98), the plunder, rape and murder left even the notorious Fernando Álvarez de Toledo – the Duke of Alba – (1507–82), complaining that the indiscipline and atrocities were ‘such that I never imagined I would see them, nor that soldiers were capable of them’. Two years later a further 1,700 men, women and children were massacred when Maastricht fell, whilst the same fate awaited those in Ypres.222 Collectively, it is estimated that the Spanish forces of Alba tortured to death or otherwise killed, 18,000 Protestants to maintain order. These deaths were supplemented by perhaps 50,000 more in the five decades leading to the rebellion as the Inquisition took hold, and the axe, fire and hanging dispensed with heretics.223 Moreover, these practices, where civilians of opposing religious belief became the targets, became the practice of this phase of the Reformation, with massacres, often outside times of siege, being recorded in a number of European countries. For example, across the border in France, in Saint Bartholomews in 1572, what started as a massacre of some 2,000 Protestant non-combatants inside the town of Vassy, quickly spread to encompass between 8,000 and 70,000 people of opposing religious faiths as mob violence swept France. Likewise, in Ulster, Ireland, perhaps 10,000 Protestants were put to death at the beginning of the Irish rebellion in 1641, thus creating a pretext for which Oliver Cromwell (1599–1658) would come and reply with vengeance in a few years time.224 Such practices, when involving sieges where offers of surrender were rejected, were seen as being in complete accordance with the law. Even the relatively restrained scholar of international law, Francisco de Vitoria agreed, that the taking of a city by force and the killing of ‘all who have borne arms’ was permissible. He even suggested that it was permissible to sack a city with limited restraint if it would succeed in scaring other towns into surrender.225 The ever-helpful Alberico Gentili added ‘cities are sacked when taken, they are not sacked when surrendered’.226  See O’Siochru, M (2008) God’s Executioner: Oliver Cromwell and the Conquest of Ireland (London, Faber) 20.  Parker, G (2002) Empire, War and Faith in Early Modern Europe (London, Penguin) 143–44, 156. 222  Rowdon, M (1974) The Spanish Terror (London, Constable) 242–43; Hanson, N (2003) The Confident Hope of a Miracle. The True Story of the Spanish Armada (London, Corgi) 58, 208, 213. 223  Arnold, T (2001) The Renaissance at War (London, Cassel1) 132; Rummel, R(1996) Death by Government (London, Transaction) 55; Rowdon, M (1974) The Spanish Terror (London, Constable) 155, 219–20, 241, 242. 224  O’Siochru, M (2008) God’s Executioner: Oliver Cromwell and the Conquest of Ireland (London, Faber) 24–25. 225  Pagden, A (ed) Vitoria: Political Writings (Cambridge, Cambridge University Press) 293, 322–24. 226   Gentili, A De Iure Belli Libri Tres trans Rolfe, J (1933) (Oxford, Carnegie Institute, Oxford University Press) 3.7/ 2.315. 220 221

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Despite this being the legal option, the practice of indiscriminate slaughter following breached walls was not followed in all instances of this period. Thus, when Duesburg and Cadiz fell, Robert Devereux (1565–1601), the 2nd Earl of Essex, stepped in to prevent soldiers from slaughtering the Catholic-aligned civilian populations within the city. Similarly, Francis Drake when storming Vera Cruz in 1573, told his men that they should never hurt a woman or a man without a weapon in his hand.227 Although the acts of these Elizabethan heroes were an anomaly in many of the sieges that came to make up the Thirty Years’ War, they were consistent with the teachings of the prominent scholars of the age such as Hugo Grotius who argued in 1625: ‘After a place has surrendered, and there is no danger to be apprehended from the prisoners, there is nothing to justify the further effusion of blood’.228 Massacres of the garrison and inhabitants occurred with the sacks of Frankfurt and Magdeburg in 1631. With the latter conflict, out of 20,000 inhabitants, only 5,000 survived the result of breached walls after uncontrollable fire turned Magdeburg into a huge funeral pyre, of which only the great Gothic cathedral was left standing, almost alone in a city largely reduced to cinders.229 Similar actions occurred in the related conflicts in Britain with their civil war, and especially in Ireland when Oliver Cromwell managed to mix the politics of the Reformation with English desires of renewed colonialism. Cromwell was, however, not the first Englishman to introduce such ideas into Ireland, and the massacre of Catholic Irish non-combatants was underway before Cromwell arrived in Eire. Women were especially recognised as being useful targets. For example, the Lord Justices in Ireland believed that women should be specifically targeted: ‘Being manifestly very deep in the guilt of this rebellion, and as we are informed, very forward to stir up their husbands, friends and kindred’.230 Despite such actions, it is for the acts of Cromwell at both Wexford and Drogheda in 1649 that this war is most widely known. Although Cromwell issued proclamations prohibiting his soldiers from harming civilians who were non-threatening, different rules applied when dealing with besieged areas. Notably, at Drogheda, Cromwell sent an ultimatum to surrender to the besieged commanders ‘to the end [that] effusion of blood may be prevented’. When this was refused, the besieged areas were stormed whereupon most of the 2,500 defending soldiers and perhaps 1,000 civilians were killed. According to Cromwell, both Wexford and Drogheda, by refusing terms, had ‘suffered through their own wilfulness’.231 Even privateers such as Sir Henry Morgan (1635–88) operated by such rules, allowing the destruction of Spanish settlements who did not accept his terms. The worst example of his practices was his attack on the city of Panama in 1671, in which an entire civilian community was eradicated.232  Robinson, P (2006) Military Honour and the Conduct of War (London, Routledge) 100.   Grotius, H (1625) The Rights of War and Peace trans Whewell, W 1913 (London, Dunne) 363. 229   Cooper, J (ed) (1970) The New Cambridge Modern History The Decline of Spain and the Thirty Years War (Cambridge, Cambridge University Press) 332–33; Childs, J (2001) Warfare in the Seventeenth Century (London, Cassell) 55. 230   Lord Justices noted in O’Siochru, M (2008) God’s Executioner: Oliver Cromwell and the Conquest of Ireland (London, Faber) 31. 231  O’Siochru, M (2008) God’s Executioner: Oliver Cromwell and the Conquest of Ireland (London, Faber) 100. See also 26, 31, 79–83, 87–93; Gentiles, I (1992) The New Model Army in England, Ireland and Scotland (Oxford, Oxford University Press) 357; Robertson, G (2006) The Tyrannicide Brief (London, Vintage) 228–29; Downing, T (1991) Civil War (London, Gardner) 140–41. 232   Carr, C (2002) The Lessons of Terror: A History of Warfare Against Civilians (New York, Little) 98. 227 228

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When in 1648 the Peace of Westphalia put an end to the anarchy, Europe lay in ruins. In addition to the 350,000 killed in battle, some eight million civilians are believed to have perished. Perhaps one quarter of the pre-war population of Germany (20 million per war) was lost as indiscriminate warfare, epidemics and malnutrition collided on the civilian populations entrapped in the war zones. Some villages which were caught between the various tides of the war were recorded as being sacked at least 28 times.233 These impacts were beginning to reflect the growing practice of civilians becoming increasingly targeted outside of situations of siege, and being either killed outright by forms of reprisal or for collective punishments (if believed to be supporting the opposition). For example, in the wars of Louis XIV (1638–1715) the French tried to adopt the practice of burning 50 houses held by them in occupied territory for every single house of French lineage burnt by forces occupying French lands. This policy was anything but new in the 1680s, being practised by most, if not all armies of the day in a way to make their troops feared. The policies became so common that by the end of the seventeenth century, treaties such as that of Ryswick (which ended the Nine Years’ War) would specify that upon ratification of the agreement reprisals against civilians would cease.234 This type of approach was consistent with an earlier Peace of Bruges of 1488, whereby the victor promised not to inflict reprisals on Flanders (which was surrendered) after the treaty was signed.235 Around the same time period, similar results reflecting staggering losses in population were being recorded in the New World. This was particularly noticeable in North America, where there was a considerable decrease in population numbers of American Indians, perhaps as high as 84 per cent, following the arrival of Europeans. Most of this decline was caused by diseases introduced by Europeans, although a long list of massacres and deliberate attempts at the extermination of North American tribes by Europeans was also part of the mix. For example, following indiscriminate hostilities with the settlers and the practice of capturing fertile settler women, amongst others, the Pequots, a Massachusetts tribe, were targeted with methods of warfare which involved raiding their camps, destroying their food sources, and killing men, women and children. Such attacks were so successful that by the time of the American Revolution there were virtually no American Indians left in New England. Similar practices occurred in the eighteenth and nineteenth centuries as the strengthening government of the United States attempted to break the autonomy of some groups and force them into specific areas in set-aside reservation areas. Although the intention may not have been to target inhumanely all of the peoples and most of the extreme acts were carried out by local individuals, groups or regular troops beyond the control of the national centre, there were a clear number of atrocities in which men, women and children were killed without discrimination.236 233  Reddaway, F (ed) (1930) Select Documents in European History, Vol II 1492–1715 (London, Methuen) 91; Childs, J (2001) Warfare in the Seventeenth Century (London, Cassell) 73; Cooper, J (ed) (1970) The New Cambridge Modern History. The Decline of Spain and the Thirty Years’ War (Cambridge, Cambridge University Press) 346–47, 357; Friedrich, C (1952) The Age of the Baroque (NYC, Harper) 181, 195–96; Gebler, C (2005) The Siege of Derry (London, Abacus) 69; Macartney, C (ed) (1970) The Habsburg and Hohenzollern Dynasties (NYC, Harper) 45–54. 234  See, eg, the Treaty of Ryswick 1697 Art XVII; Lynn, J (2002) The French Wars 1667–1714 (London, Osprey) 48, 49; Ranum, P (ed) (1972) The Century of Louis XIV (NYC, Harper) 272–78. 235  Potter, G (ed) (1969) The New Cambridge Modern History. The Renaissance, Vol 1 (Cambridge, Cambridge University Press) 236. 236   Wooster, R (1988) The Military and United States Indian Policy: 1865–1903 (Connecticut, New Haven) 136–42; Maguire, P (2001) Law and War: An American Story (NYC, Columbia University Press) 42–46;

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Within Latin America, the subduing and conquests of the Indian tribes, including the Araucanians (in southern Chile), the Ranqueles (in southern and central Argentina), the Mayans (in Mexico) and the Yaqui (in northern Mexico) all followed the same patterns as practised in the United States. That is, these peoples were systematically defeated in military terms, and then packed into either reservations or places where it was felt they would be of economic use.237 Similar practices occurred in parts of the British Commonwealth, such as with the Aborigines of Australia and those in Tasmania in particular. Disease, reprisals against the killing of white settlers and the murderous intentions of some settlers, wrought massively detrimental impacts on the local population. Moreover, although the central policy was one of protection, not extermination, of the Tasmanian Aborigine, the recklessness by which this was achieved was close to criminal. In establishing the world’s first concentration camps – to hold people, not for what they had done, but for who they were – between 1824 and 1826 at the Flinders Island Reservation, many of the survivors of the attacks on Tasmania subsequently died of exposure.238 7 .  The Enlightenment

Sack, indiscriminate slaughter and rape followed through into the period generally known as the Enlightenment, as did the traditional rules on capitulation. Thus, a commander of a fortress was typically given definite written instructions, setting out clearly the nature of the defence required in the event of a siege. If a commander surrendered prematurely, he was liable to trial before a military tribunal. The revised instructions to fortress commanders issued by Louis XIV remained in force in the French army until 1792, requiring a commander to repulse only one assault on the body of a fortress after a breach had been made. At this period of history, once a breach had been made which was practicable for an assaulting army to enter, the ultimatum was made to the fortress commander. Specifically, if he did not surrender before the assault took place, no quarter would be granted to the garrison, the town would be thrown open to looting, and the commander would be put to death. As the town would be abandoned to the soldiers for a number of days, no guarantee of the safety of the civilians on the inside could be offered. This was, as the Count Turpin de Crisse (1705–72) suggested, ‘the right of the soldier, authorised by useage’.239 George Washington (1732–99) surrendered under honourable terms rather than face a sack in 1754 as did other British forces during the French and Indian wars. In some instances at least, such as with the Fort Henry surrender, the terms were breached by the French Indian allies who attacked the British soldiers and civilians as they left Rummel, R (1996) Death by Government (London, Transaction) 53, 57, 59; Bateman, R ‘Wounded Knee: Who Spoke the Truth?’ Military History (June 2007) 62–67; Selesky, H (1990) War and Society in Colonial Connecticut (New Haven, Yale University Press) 3–11; Rubinstein, W (2004) Genocide (London, Longman) 46–54; Boatner, M (1969) The Encyclopedia of the American Revolution (NYC, McKay) 439, 841. 237  Scheina, R (2003) Latin America’s Wars: The Age of the Caudillo, 1791–1899 (Washington, Brassey) 369– 73. 238   Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 292, 275, 296; Rummel, R (1996) Death by Government (London, Transaction) 59. 239   De Crisse, noted in Lindsay, J (ed) (1957) The New Cambridge Modern History. The Old Regime, Vol VII (Cambridge, Cambridge University Press) 167.

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their defended area, as so well portrayed in James Fenimore Cooper’s romantic tale The Last of the Mohicans. Quebec surrendered on terms in 1759 which allowed the besieged to leave the area, with their possessions, and be sent back to France. With the siege of Yorktown, Washington refused an honourable surrender to the besieged as their commander had earlier denied it to an American garrison captured at Charleston. As such, they had to leave with their banners folded. Nevertheless, they were still given the option not to fight to the death and escaped with their lives, freedom and prop­ erty.240 With the Napoleonic Wars, a number of cities surrendered with little or no resistance. In 1801, when the French forces in Egypt surrendered, they were given free passage back to France by the British. The few surviving troops in Genoa in 1800, following a long siege, were allowed to leave with full honours of war. Good terms were agreed with Vienna in 1805 and with the capitulation of Erfurth and Magdeburg in 1806. In the latter instance, it was agreed ‘the people, the particular properties of the habitants, the worships and their religious opinions are put under the safeguard of the French laws and honesty’. Moreover, nothing will be changed in the administration, or in the current institutions of the country.241 Generous terms were also given to the besieged garrison by Napoleon at Danzig in 1807 where they could leave with their guns, and only with the promise not to fight the French for one year.242 If a besieged area refused such terms, then sack could be expected. This was the case with the storming by Russian troops of Orchakov and Ismail in the Balkans in 1788 and 1790, as with the sacking of Warsaw in 1794 in which an estimated 9,000 soldiers and 7,000 civilians were massacred after a failed bid for Polish independence. A year earlier in 1793, when Toulon fell during the French Revolution, perhaps 1,000 prisoners (who were connected with the armed rebellion) were taken and executed. When the French were driven from Pavia in 1796 by a horde of peasants, an orgy of murder, rape and looting followed when it was retaken. When citizens rebelled in captured Cairo in 1798 (and killed several high-ranking officers), some 3,000 were killed in return, with entire neighbourhoods being sacked, and no refuge being found in the mosques. Indiscriminate slaughter occurred following the siege of Jaffa in 1799. From 1801 onwards, the attacks against the rebels in Haiti were particularly indiscriminate. Sack and storm was next recorded in Lauria in 1806 and Glatz in 1807. The sack of Saragossa in 1808 left a death toll within the city of over 50,000. When Zaragosa fell in 1809, the deaths of 24,000 defending soldiers were added to the deaths of 30,000 civilians. The same fate awaited the Italian town of Lugo in 1809 which was recaptured by Napoleon’s soldiers after it had rebelled, who were then given permission to do as they wished for 24 hours. When Oporto in Spain fell, some 8,000 men, women and children paid the price of their resistance. Over 5,000 Spaniards civilians were killed at Tarragona in 1811 and a further 2,000 civilians were slain when Olivio fell in the same year. Similar atrocities were committed by English soldiers under the Duke of Wellington (1769–1852), although without his permission, at Badajoz in 1812 240   Lamothe, M ‘Heroic Last Stand for Polish Independence’ Military History (November 2005) 22–28; Black, J (1994) European Warfare 1600–1815 (New Haven, Yale University Press) 173; Fowler, W (2005) Empires at War (NYC, Walker) 46–47, 125–29, 213; Hymel, K ‘Fort Necessity: George Washington’s First Defeat’ Military Heritage (February 2008) 30. 241  Arts XII and XIII. 242  Rothenberg, G (1980) The Age of Warfare in the Age of Napoleon (Bloomington, Indiana University Press) 42, 218–19.

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(a sack which lasted three days), San Sabastian (half of the civilian population will killed) and Bajadoz. When Tarragona fell the following year, even the Cathedral was stormed. In the same year that Wellington lost control of his troops, across the Atlantic, the massacre of civilians following the capture of Fort Mins by the Creek Indians in the 1812 war was recorded, as was the British use of indiscriminate assaults against men, women and children in an effort to blunt their will to fight. These efforts culminated in the 1814 attempt by the British to burn the city of Washington to the ground, after the Americans had burned several Canadian towns, in which there was little mercy shown to either soldier or civilians who did not escape.243 The decades between the Napoleonic Wars and the end of the nineteenth century saw a continuation of the same practices of indiscriminate slaughter following sacks. Within Latin America, the sack of Guanajuato in 1810 involved the killing of thousands of survivors, civilians and otherwise. The same practice was recorded when Potosi, Oruro and Le Paz fell. The sack following the siege of Cuautla Amilpas in 1812 ended with the death of over 3,000 individuals, including men, women and children. Rape, pillage and murder of civilians followed the fall of the Nicaraguan city of Leon in 1844. The city of Asuncion suffered a similar fate when it fell to the Triple Alliance in 1869, as did the Peruvian settlement of Chorrillos when it was sacked by Chilean forces in 1881. Such actions against civilians in Latin America were not restricted to sacks. For example, widespread atrocities against civilians, including murder and rape, was part of the slave revolt in Haiti between 1791 and 1803, with over 10,000 slaves and 2,000 non-slaves killed in a war in which limits were rarely respected.244 The War of Greek Independence in 1821 saw a series of large scale-sieges and sacks, during which terms of surrender were commonly not honoured, especially by the Greeks. The result was that thousands of non-combatants were killed in, inter alia, Navarino, Tripolitsa, the island of Chios, Acrocorinth and Missalonghi. Meanwhile, the leaders of the Ottoman forces sent bags of ears from dead rebels as proof of their successes. The French siege sack at Bougie in Algeria in 1832, ended with an indiscriminate slaughter. In 1845, a French force managed to trap some 500 men, women and children in the Dahra caves and kept fires burning until they were all suffocated from smoke inhalation. Nevertheless, in theory, the practice of offering terms continued. For example, in 1848 the leader of the besieging Austrian army that surrounded the rebellious Venetians offered clemency and peace to the people of Venice (if not their leaders) if they surrendered before his batteries opened fire. He reminded them that if they did not, he was ‘ready to let fall upon you the scourge of war to the point of extermination if you persist in following the path of rebellion, thus forfeiting any right to mercy from your lawful sovereign’.245 243   Bell, D (2007) The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (London, Bloomsbury) 212, 214, 274–75, 280–84; Langford, E (1969) Wellington: The Years of the Sword (NY, Harper) 271–73; Rothenberg, G (1980) The Age of Warfare in the Age of Napoleon (Bloomington, Indiana University Press) 53, 89, 127, 220; Rothenberg, G (2000) The Napoleonic Wars (London, Cassell) 147; Esdaile, C (2003) The Peninsular War (London, Penguin) 151–52, 163, 178–79, 362, 380, 386–87, 452; Andress, D (2007) The Terror: Civil War in the French Revolution (NYC, Brown) 239; Griffith, P (1998) The Art of War of Revolutionary France: 1789–1902 (London, Greenhill) 257; North, J (2009) ‘Taking Tarragona’ Quarterly Journal of Military History (Summer) 68, 74–75; Hickey, D (1995) The War of 1812 (Chicago, University Press Illinois) 147. 244  Scheina, R (2003) Latin America’s Wars: The Age of the Caudillo, 1791–1899 (Washington, Brassey) 3, 47, 73, 78, 252, 330. 245   Keates, J (2006) The Siege of Vienna (London, Pimlico) 345.

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In the same year, the peasant insurrection which swamped Transylvania was responded to with mass executions, the burning of some 230 villages and the execution of around 40,000 people, combatants and non-combatants alike. Other notable events from this period included the attacks upon British civilians in India, including the killing of hundreds of women and children. In addition, terms were offered, accepted and then breached by the rebelling forces in the Indian mutiny of 1857, from which British soldiers and civilians were massacred after exiting their protected area. Due to such practices, the English military responded with extreme force. However, it is noteworthy that with the sack of Delhi, although the order was given for ‘no quarter’, it was emphasised to the soldiers for the ‘sake of humanity . . . spare all women and children that may come in their way’.246 Such restraint was not evident when the city of Allahabad was taken. The British siege of Multan during the Second Sikh War in 1852 also ended with an indiscriminate slaughter of men, women and children. In their following conflict in China, although they did not sack the cities of their enemies, they were still cognisant of the possibilities they possessed. Thus, Admiral Edward Seymour (1840–1929) warned the governor of Canton in 1856, ‘the lives and property of the entire city population are at my mercy . . . and could be destroyed by me at any moment’.247 Although not as formalised, similar practices occurred in the New Zealand land wars, in which civilians were attacked by both the forces of the British Crown and various Maori tribes. However, in both instances, the practices were ad hoc, with both sides showing degrees of humanity and, at other points, a lack of restraint with regards to the protection of women and children. In terms of numbers, the worst attack on civilians was probably the attack on Poverty Bay in 1868 when at least 34 Europeans and between 20 and 40 allied Maori were slaughtered by the troops of Te Kooti (1832–91).248 Civilians at this point were not only at risk from sack. They were also at risk from reprisals linked to the practices of irregular warfare. For example, the Ottoman response to the irregular warfare against their occupation of the Balkans was one of collective punishment on the nearest villages from where they were attacked. Fines, deportation to Turkey for the inhabitants, or destruction of the village were the most practised punishments in the seventeenth century.249 Likewise, in the eighteenth century, following the Jacobite uprising in Britain, those suspected of being sympathetic to the rebels found their property burnt as part of a policy to destroy ‘the nurseries of rebellion’.250 Similarly, with the American War of Independence, when some of the original troops of George Washington attacked colonists loyal to the British Crown, the reprisals by the British soldiers on civilians loyal to the rebellion were swift. Such reprisals were often linked to the destruction of property, such as when a number of defenceless towns were burnt to the ground in 1776 after the people had been ejected. 246  Saul, D (2002) The Indian Mutiny (London, Penguin) 301; Rapport, M (2009) 1848: Year of Revolution (London, Abacus) 309–310. 247  Seymour, noted in Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 154, see also 42, 160, 163; Howarth, D (1976) The Greek Adventure (London, Collins) 30–31, 56–63, 85, 107–108, 195–97, 224; Saul, D (2002) The Indian Mutiny (London, Penguin) 176–77, 192, 199–200; Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 587; Robinson, P (2006) Military Honour and the Conduct of War (London, Routledge) 156. 248   Belich, J (1986) The New Zealand Wars (London, Penguin) 33, 164–65, 171, 173, 228–29, 269, 274, 277. 249  Ellis, J (1995) From the Barrel of a Gun: A History of Guerrilla Warfare (London, Greenhill) 60. 250   Duffy, C (2003) The ’45 (London, Cassell) 474, 475, 478, 481–82.

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The destruction of over one quarter of New York City by fire in the same year, after the Americans had left the city, was taken by as ‘proof of the diabolical designs’ of the administration in London.251 The French revolutionary wars also saw the large-scale killing of civilians in times outside of sack. It is estimated that hundreds of thousands armed and unarmed French who disagreed with the revolution were indiscriminately slaughtered, just as their fellow countrymen who supported it came to a similar fate.252 The civil war in the Vendee appears to have been near-genocidal as entire communities, regardless of age or sex, were destroyed as the National Guards and Royal forces sought to establish a rebellion. Somewhere between 220,000 and 250,000 people were killed in this region, although the number may have been close to one million, as over a quarter of the population of the insurgent region lost their lives in 1793–94. Although argued by some as a genocide (certainly, some radicals such as Bertrand Barere (1755–1841) called for ‘measures to exterminate this rebel race’) there was no master plan of extermination, and the focus was upon armed rebels and not the people of Vendee, who were not seen as a distinct ethnic group. The same conclusion can also be reached for the military tribunals of the French Revolution (and the Terror) which led to executions of a further 30,000 to 40,000 French citizens. These tribunals began targeting aristocrats and corrupt public officials before the convention produced a sweeping ‘Law of Suspects’ ordering their incarceration; achieving a total incarceration of about 300,000 of all ex-nobles, their wives and children, unless they could prove their attachment to the Revolution.253 A particular importance of this point of history is that around here the idea of the hostage began to change. This change was fundamentally in the breadth of type and numbers of people who could be held as hostages as collateral for the acts of others. Conversely, the taking of hostages as guarantors of compliance with treaties was becoming unusual by the time of the Enlightenment. Examples after the 1748 Treaty of Aix-la-Chapelle, whereby hostages from the English nobility stayed in Paris pending the restitution to France of certain of her North American possessions, are hard to find in international relations.254 What is not hard to find was the growing collection of treaties, such as the 1763 Treaty of Paris255 and the accompanying Treaty of Hubertsburg256 whereby the return of hostages taken during a conflict, without demands for ransom, was part of the peace-making process. The development of such reflections within the treaties had a clear lineage to the taking and holding of hostages from within a population, to be held personally responsible for any acts of their community, even if they did not personally assist or even approve of such acts. This practice is evident during both the French-Indian War and the American War of   McCullough, D (2005) 1776. America and Britain at War (London, Penguin) 56, 223.  Andress, D (2007) The Terror: Civil War in the French Revolution (NYC, Brown) 160–63; Schama, S (1989) Citizens: A Chronicle of the French Revolution (NY, Knopf) 791–92; Griffith, P (1998) The Art of War of Revolutionary France: 1789–1902 (London, Greenhill) 76. 253  Andress, D (2007) The Terror: Civil War in the French Revolution (NYC, Brown) 6, 105–108, 210–11; Bell, D (2007) The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (London, Bloomsbury) 155–59, 172–74; Griffith, P (1998) The Art of War of Revolutionary France: 1789–1902 (London, Greenhill) 29; Rothenberg, G (1980) The Age of Warfare in the Age of Napoleon (Bloomington, Indiana University Press) 118–19. 254   Treaty of Aix-La-Chapelle 1748, Arts 17–19 in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 90. 255  See Treaty of Paris 1763, Art 3. 256  See Treaty of Hubertsburg, Art VI. 251 252

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Independence.257 On the Continent, in 1799, seven years after the French Revolution began to unfold, the Law of Hostages held relatives of émigrés liable for émigré’s actions. Similarly, in terms of occupation, the taking of hostages ‘from among the most notable inhabitants’ quickly became a clear policy of the revolutionary armies and subsequently, Napoleon. Thus, when Napoleon entered Vienna in 1809, he seized several of the city’s dignitaries as hostages and dispatched them forcibly to France. This policy was pursued because Napoleon recognised that: ‘Hostages are one of the most effective ways . . . to keep conquered territories under control . . . when the people are persuaded that the death of these hostages would be the immediate result of a breach of their loyalty.’258 At this point, the link between hostages and reprisals became very strong as the Napoleonic Wars engulfed Spain and resultant guerrilla warfare erupted. The problem was not what to do with the captured guerrillas, but what to do with the communities that supported the guerrillas when the guerrillas had disappeared. The French response was to attack the citizens within these communities. This was especially so if they were directly involved in the fighting. For example, following a confrontation between armed peasants and French soldiers in Calabria after which 40 French soldiers were killed and 26 taken prisoner, the French army responded by razing the village, taking hundreds of prisoners and executing 200 of them. Other instances involved, inter alia, the execution of 100 people chosen at random for the murder of two or three French soldiers. This kind of approach was in direct accordance with Napoleon’s dictate, that: ‘As long as you have not made an example of anyone you will never be master . . . all persons who have committed excesses, and stirred up rebellion . . . must be brought before a military tribunal and instantly shot’.259 Jean Marbot (1782–1854) would add: ‘All means are permissible against those who revolt [and the best means of defence was to] put the town to the torch and shoot constantly upon the inhabitants in order to prevent them from putting the fire out’.260 From such thinking, in 1810 whilst fighting in Spain, it was agreed that for every French soldier killed, four Spanish guerrillas would be executed – but if they were short on guerrillas, Spanish civilians could be substituted. Although this was distasteful, Napoleon remained of the belief that in the short term such acts could reduce attacks on his soldiers by irregular opponents and help establish the basis of secure governance in the area. In practice, as some of Napoleon’s own generals conceded, the French forces had become little better than ‘bandits in uniform’ who practised murder, rape and pillage under the label of reprisals.261 Nevertheless, the practices were never considered unlawful. Thus, Charles Napier (1786–1860) would declare: 257   Boatner, M (1969) The Encyclopedia of the American Revolution (NYC, McKay) 224; Fowler, W (2005) Empires at War (NYC, Walker) 47, 248. 258  Napoleon in Luvaas, J (1999) Napoleon on the Art of War (NYC, Free Press) 126; Bell, D (2007) The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (London, Bloomsbury) 210; Best, G (1980) Humanity in Warfare (London, Weidenfeld) 95, 117. 259  Napoleon In Luvaas, J (1999) Napoleon on the Art of War (NYC, Free Press) 125. For the other examples, see Bell, D (2007) The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (London, Bloomsbury) 271; Rothenberg, G (1980) The Age of Warfare in the Age of Napoleon (Bloomington, Indiana University Press) 89; Esdaile, C (2003) The Peninsular War (London, Penguin) 258, 311. 260   Marbot noted in Nabulsi, K (2005) Traditions of War (Oxford, Oxford University Press) 31. 261  Esdaile, C (2003) The Peninsular War (London, Penguin) 170–71, 179, 194; Best, G (1980) Humanity in Warfare (London, Weidenfeld) 168; Rothenberg, G (1980) The Age of Warfare in the Age of Napoleon (Bloomington, Indiana University Press) 156–57.

The Enlightenment 147 All armies have the incontestable right to defend themselves when they are engaged in hostilities. [In] an insurrection of armed peasants in military anarchy . . . men cannot be restricted in the customs of regular war. This is why, no matter the apparent injustice [one cannot give quarter to] armed peasants, and the right to burn their villages must rest on the principle of necessity.262

Collective punishments were practised by Royalist forces in the War for Mexican Independence between 1810 and 1829; entire villages would be burnt to the ground if they were suspected of harbouring rebels. Similar practices were later recorded towards the end of the century in a number of Latin American countries, such as Columbia, Cuba and Chile as authorities attempted to snuff out insurgencies which had support from local populations.263 At some points, fear that subjects may turn to treason also led to the killing of the families of potential insurgents, such as during the French war in Haiti. In this instance, the execution of hundreds of black soldiers who were feared to be committing treason (whilst under French command) was accompan­ ied by the public execution of their wives.264 Although there were some enlightened moments during this period, such as the 1848 Treaty of Guadalupe Hidalgo between the United States and Mexico which agreed that reprisals against civilians would not be utilised in any future war between the two countries,265 such acts were solitary candles in the dark when attempting to find concrete restraints in attacks on non-combatants. Moreover, in the American Civil War, Abraham Lincoln (1809–65) agreed in 1862 to utilise hostages and general civilians of the opposing side to achieve his war aims. In this context, the Union recognised hostages as persons accepted as pledges for the fulfilment of agreements concluded between belligerents during or in consequence of the war.266 Such hostages were well used during the American Civil War, although they, like the general civilians on the opposing side, tended to pay for breaches of obligations towards their occupiers (such as supporting guerrilla attacks) with their property, not their lives. That is, unlike Napoleon who agreed that hostages could pay with their lives, Lincoln only went so far as to allow his Commanders to ‘seize and use any property, real or personal, which may be necessary for military purposes’.267 Although Lincoln had reservations in this area and did not envisage that the taking or destruction of private houses would become widespread, this is exactly what happened as the destruction of private property became the price for everything from active assistance to passive complicity with the enemy. Thus, Lincoln sacrificed traditional moral restraints to strike fear into the enemy and to protect his soldiers from guerrilla attacks via the destruction of civilian property as long as such destruction was not wanton or malicious. He saw such acts as being in full accord with his recently compiled Lieber Code, or Instructions for the Government of Armies of the United States in the Field. This Code explained that while martial law imposed by the occupying force was recognised as legitimate, it had  Napier noted in Nabulsi, K (2005) Traditions of War (Oxford, Oxford University Press) 30.  Scheina, R (2003) Latin America’s Wars: The Age of the Caudillo, 1791–1899 (Washington, Brassey) 15. 264  Scheina, R (2003) Latin America’s Wars: The Age of the Caudillo, 1791–1899 (Washington, Brassey) 75, 80, 291, 360. 265   Treaty of Guadalupe Hidalgo 1848, Art XXII. 266  See Lieber Code, Arts 54 and 55. Also, Garrison, W (2000) Civil War Hostages: Hostage Taking in the Civil War (Pennsylvania, White Mane Publishing Company). 267   Lincoln, General Order 109, 1862 In Basler, P (1974) The Collected Works of Abraham Lincoln (NY, Westport) 141. 262 263

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to be ‘guided by the principles of justice, honour, and humanity’.268 Within this, the focus was on ‘individual offenders’ and restraints were placed upon the possibility of the death penalty being imposed.269 Nevertheless, Articles 27 and 28 explained: The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilised nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage. Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution.270

Following attacks by guerrillas on his gunboats, General William Sherman (1820–91) had the town of Randolph, Tennesse destroyed and issued orders to expel 10 families for each locality at which his boats were fired upon. When this failed to stop the sniping he had all houses, farms and crops along a 15-mile stretch of the Mississippi south of Memphis destroyed. In time, Sherman extended this approach when he ordered: To corps commanders alone is intrusted the power to destroy mills, houses, cotton-gins etc; and for them this general principle is laid down: In districts and neighbourhoods where the army is unmolested, no destruction of such property should be permitted; but should guerrillas or bushwackers molest our march, or should the inhabitants burn bridges, obstruct roads, or otherwise manifest local hostility, then army commanders should order and enforce a devastation more or less relentless, according to the nature of such hostility.271

From such dictates, and in an attempt to combine reprisals and break the morale of the opposing civilians who continued to support their troops, this policy came to peak and nearly destroy entire cities in acts whereby 5,000 buildings were destroyed and only 400 houses were left intact. At this point Sherman warned: If the people raise a howl against my barbarity and cruelty, I will answer that war is war . . . if they want peace they and their relatives must stop the war . . . we are not only fighting hostile armies, but a hostile people, and [they] . . . old and young, rich and poor [must] feel the hand of war.272

Originally, the Confederate forces refused to practice such reprisals or collective punishments against the property of Union civilians. However, pushed by Sherman’s actions, in the middle of 1864 some 278 houses, factories and businesses were burned in Chambersburg, Pennsylvania. This act only served to provoke the Union side even further, with General Grant going on to destroy all the food, material and even shelter that may have been used by the Confederacy in areas where there was guerrilla activity. Even some hospitals, after they had been emptied, were burnt. Although this was meant to be done in a controlled way, as the cities of Charleston, South Carolina and Richmond Virginia were to testify, this was not always the case.273   Lieber Code, Art 4.   Lieber Code, Art 12. 270  Note also Lieber Code, Art 156. 271  Sherman in Chaliand, G (ed) The Art of War in World History (California, California University Press) 762. 272  Sherman noted in Fuller, J (1972) The Conduct of War 1789–1961 (London, Methuen) 108–11. 273  Stout, H (2006) Upon the Altar of the Nation: A Moral History of the Civil War (NYC, Viking) 141, 143, 153, 155, 259–61, 278, 320–24, 369, 379–82, 418–22. 268 269

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Five years later, a similar approach was replayed with the Franco-Prussian War of 1870, when houses and occasionally entire villages where the Prussian soldiers had been fired on were destroyed if the specific francs-tireurs could not be located.274 In addition, the Prussians also used involuntary hostages as ‘human shields’ to protect their military convoys. This followed several attacks on the railways. Thereafter, the Prussians ordered that all trains should: Be accompanied by inhabitants who are well known and generally respected, and who shall be placed upon the locomotive, so that it may be known that every accident caused by the hostility of the inhabitants will, in the first place injure their countrymen.275

In the period directly following the uprising in Paris in 1871 the use of collective measures against innocent people was taken one step further with the Commune’s Law of Hostages. This law resulted in every person accused of complicity with the Versailles government would be imprisoned and tried. If found guilty, they would be convicted and held as ‘hostages of the people of Paris’ and the execution of any convicted prisoner held by the enemy would be followed immediately, as it was with the execution of three hostages ‘drawn by lot’.276 Over the same time period, the practice of rape in times of war appears to have continued largely unabated. This was despite the acts of some British military leaders like James Wolfe (1727–59) who promised ‘if any violence is offered to a woman, the offender shall be punished with death’.277 Nevertheless, by the time of the American War of Independence, death penalties were sometimes not handed out to British soldiers convicted of rape, as the offences tended to be brushed aside, being seen as evidence of what a ‘spirited lot’ the British soldiers were. The French shared the same spirit in both their revolutionary period and subsequent occupations through Europe, where rape became recognised as an all-too-common occurrence when dealing with populations that were not easily pacified. The War of Greek Independence saw acts of rape carried out on a large scale in addition to the capture and sale of women in the slave markets. This trade was actually encouraged by the nascent Greek government as a way to repay their debts. British forces raped during the Opium War in China in 1839–1842, whilst in the same conflict the French were known to have rewarded their Senegalese soldiers with captured women. European women were raped during the Indian uprising of 1857 (by the rebels) whilst during the first Afghan war it was recorded that a number of British soldiers had ‘conducted themselves deplorably with women’.278 In the American Civil War, rape was recognised as a crime that the culprit could be prosecuted for. In this conflict, the rape of white women appears to have been relatively rare. However, the same standards did not apply to the rape of black or American Indian women, who some white soldiers viewed as ‘the legitimate prey of lust’.279   Howard, M (2002) The Franco-Prussian War (London, Routledge) 208, 251–54, 378–81, 397.  Prussian proclamation in Nabulsi, K (2005) Traditions of War (Oxford, Oxford University Press) 35–36. 276   Horne, A (2004) The Terrible Year: The Paris Commune, 1871 (London, Phoenix) 96, 135. 277   Carr, C (2002) The Lessons of Terror: A History of Warfare Against Civilians (NY, Little) 111. 278   Kiernan, V (1998) Colonial Empires and Armies (London, Sutton) 162; Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 17, 328; Saul, D (2002) The Indian Mutiny (London, Penguin) 221, 251, 257. 279  Stout, H (2006) Upon the Altar of the Nation: A Moral History of the Civil War (NYC, Viking) 417; Robinson, P (2006) Military Honour and the Conduct of War (London, Routledge) 131; Smith, S (1990) The View from 274 275

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8.  International Humanitarian Law Emerges

The positive emergence of international humanitarian law can be traced to the 1785 Treaty of Amity and Commerce Between His Majesty the King of Prussia, and the United States of America. This treaty, which followed the American War of Independence in which Prussian troops had become ensnared, contained the first modern reference to the protection of civilians in times of future combat. Article 23 recorded: If war should arise between the two contracting parties, the merchants of either country, then residing in the other, shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects, without molestation or hindrance: And all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers and fishermen unarmed and inhabiting unfortified towns, villages or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt, or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power, by the events of war, they may happen to fall.

This bilateral treaty of the United States with Prussia was followed in the coming century with a similar treaty between Mexico and the United States. The 1848 Treaty of Guadalupe Hidalgo also made two large steps towards civilising this area of warfare with regards to requisitions and the practice of scorched earth.280 Building on what was clearly an American awareness of the need to protect civilians in times of conflict, midway through the American Civil War the 1863 Lieber Code, as noted above, was unveiled. This Code clearly reflected a sea change in opinion over what could be done to civilians in times of conflict. For example, the Lieber Code stated: [A]s civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honour as much as the exigencies of war will admit . . . private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war.281

The foremost example of this change was the end of discussions about siege and sack. In large part, this occurred because by this point of history, the technology of projectiles had eclipsed the need for sack, as it now became possible to destroy a besieged population without breaching the walls enclosing it. However, aside the technological reality that sacks were no longer technologically necessary, fundamentally, it was no longer assumed that it was permissible to do as an attacker wanted with the non-combatant population of the opposition, as these were people who were to be, prima facie, protected. This change of emphasis was apparent in the areas of both reprisals and rape, although the detail on these questions was often very light. Officers Row: Army Perceptions of Western Indians (Arizona, Tuscon) 82. 280   Treaty of Guadalupe Hidalgo 1848, Art XII. 281   Lieber Code, Arts 22 and 23. See also Art 44.

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The Lieber Code, which was largely copied by, inter alia, Germany and the Netherlands in 1871, France and Russia in 1877, Great Britain in 1883 and Spain in 1893, came to deal with a number of topics of direct relevance to the protection of civilians. What was emerging from this period was often brief on detail. This was especially so when dealing with the international context and difficult issues like occupation, reprisals and the restraints that would be placed on occupying forces. This was most evident with the 1874 Project of an International Declaration concerning the Laws and Customs of War. The 1874 project was the first attempted international instrument which tried to set down rules on military authority over hostile territory. Whilst the authority of the occupying power to ‘take all the measures in his power to restore and ensure, as far as possible, public order and safety’282 was clear, the authority only went so far as to establish limits on what the occupying force could do, in terms of, inter alia, collecting tax and possession of state infrastructure and assets.283 This limited approach changed six years later with the informal 1880 Oxford Manual which, although it reiterated and expanded many of these functional types of rules for occupying forces, added the important Article 49 that also went on to provide the wording, for the prohibition of rape in wartime. Article 49 stated: ‘Family honour and rights, the lives of individuals, as well as their religious convictions and practice, must be respected’.284 The 1899 Convention (II) with Respect to the Laws and Customs of War on Land largely followed the Oxford Manual on this question where in addition to the rules on requisitions and taxes, it was stipulated, and finally agreed by the international community, that: ‘Family honours and rights, individual lives and private property, as well as religious convictions and liberty, must be respected’.285 In addition, the Preamble of the 1899 Convention recognised that a complete code of laws of war had not yet been completed, and until such time: The inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

Questions of reprisals and hostage-taking were not so easily dealt with. With the 1874 project, although the delegates agreed that the occupying force was obliged to ‘take all the measures in his power to restore and ensure, as far as possible, public order and safety’,286 the delegates could not agree on the question of reprisals. This was despite the strong advocacy of the Russians that reprisals should only be allowed in extreme cases after there was ‘unquestionable proof ’ that the laws and customs of war had been violated by the enemy. Even then, the reprisal should be in proportion to the degree of infraction caused, and could only be ordered by the Commander in Chief.287 This failure to set down rules around reprisals meant that the topic had to wait until 1880 when it was dealt with in the Oxford Manual. Once more, the importance of the occupying force to ‘take all due and needful measures to restore and ensure public order and public safety’ was emphasised.288 To that end, it was recognised that the  Project of an International Declaration concerning the Laws and Customs of War 1874, Art 2.  Project of an International Declaration concerning the Laws and Customs of War 1874, Arts 3–8. 284  Oxford Project 1880. For the basic rules, see Arts 40–60. 285   Convention (II) with Respect to the Laws and Customs of War on Land 1899. 286  Project of an International Declaration concerning the Laws and Customs of War 1874, Art 2. 287   Best, G (1980) Humanity in Warfare (London, Weidenfeld) 171. 288  Oxford 1880, Art 43. 282 283

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occupying force may in ‘cases of urgency . . . demand the cooperation of the inhabitants’.289 Prima facie, it was ‘forbidden to maltreat inoffensive populations’,290 although those who committed offences could be tried and punished in accordance with judicial hearings.291 The exception to this was when a serious crime was committed but the individual who committed it could not be found. In such situations the Manual suggested that when ‘the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law’ and ‘no other recourse than a resort to reprisals remains’292 then it was possible to act accordingly even though reprisals were ‘[a]n exception to the general rule of equity, [in] that an innocent person ought not to suffer for the guilty’.293 Such acts were only deemed possible if the injury complained of has not been repaired294 and ‘their nature and scope shall never exceed the measure of the infraction of the laws of war committed by the enemy’.295 When the question of reprisals was re-examined at the Hague Conferences in 1899 and 1907, and the importance of the occupying forces maintaining public order and safety296 was reiterated, Article 50 of the 1907 Hague Convention Respecting the Laws and Customs of War on Land went one step further and stipulated: ‘No general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible’. On the topic of rape, the Lieber Code stated that any soldier convicted of this crime would be punished with the death penalty.297 However, despite this clear recognition within the Lieber Code of the problem of rape, the topic evaded clear sanction in the international context over the following decades. The closest that the scholars came to this area was in the 1874 Project of an International Declaration concerning the Laws and Customs of War which stated that the ‘honor and rights of the family . . . should be respected’. Following through, the 1899 and 1907 Hague Conventions reiterated the vague commitments to occupying forces to respect ‘family honour and rights’.298 Accordingly, as the international community proceeded to plunge into two world wars, the topic of rape was given very little legislative foundation by which to recognise and confront the issue as a serious problem of international concern. 9 .  Two Bad Decades

The emerging rules noted above, were of limited value in the conflicts that flared around the turn of the twentieth century. This was especially so the further the conflicts got from Europe, where the sacking of besieged areas was more of a practice than seen in non-European related conflicts such as in China with the Teiping Rebellion, Afghanistan and the Russian sack of Geok Tepe in 1881, and Africa with  Oxford 1880, Art 46.  Oxford 1880, Art 7. 291  Oxford 1880, Art 84. 292  Oxford 1880, Art 83. 293  Oxford 1880, Art 86. 294  Oxford 1880, Art 87. 295  Oxford 1880, Art 88. 296  See the Hague Conventions of 1899 and 1907 pertaining to the Laws of War on Land, Arts 42 and 43. 297   Lieber Code, Art 44. Note also Art 37. 298   Hague Convention IV 1907, Art 46. 289 290

Two Bad Decades 153

the fall of Khartoum in 1885. In the last instance, 40,000 warriors descended on a semi-starved population of 14,000, with an orgy of murder, torture, rape and enslavement for the survivors, and death for 4,000 other civilians. In all of these instances in which the massacre of civilians followed their failure of defence, the result was entirely consistent with the 3,000 years of practice before them.299 Rape remained a clear problem with some European troops during the Boxer Uprising and with the German troops during uprisings in South West Africa, and later during the 1912–13 Balkan Wars.300 Emerging practices of subjugation of dissident populations also gave cause for concern, with the forced transfer of 30,000 Poles from one part of Poland into another by Otto von Bismarck (1815–98) in 1886 as a possible warning of what was to come. The practices of Leopold II of Belgium (1835–1909) and the Congo Free State between 1885 and 1908 also formed a useful backdrop to this period. From his reign a combination of illness and extreme work appears to have decimated millions of locals who were forced to live under a system of labour which appears to have been close to slavery. Although Leopold did not intend to murder the people in his colony and did not utilise concentration camps, it was apparent to the international community from the turn of the century how easy it was to occupy, utilise and control vast numbers of foreign citizens. The example of the Congo was quickly supplemented in situations of military conflict with the first modern concentration camps being set up by Spain, the United States, Britain and Germany in quick succession. This was particularly easy as the nascent rules of 1874, 1880 and 1899 were silent on these new methods of warfare against civilians, whereby those who perceived to be a threat to military rule, were swept up into special areas. In the first instance, the effort in 1895 in colonial Cuba to put to an end a series of local insurgencies was built around the policy of reconcentracion. This policy was intended to remove the Cuban peasants from their land and ‘reconcentrate’ them in camps, thereby depriving the insurgents of food, shelter and support. In total, some 300,000 Cubans died during their Second War of Independence (1868– 98). Of these, an estimated 200,000 civilians died from disease and famine within concentration camps. These problems were so bad that part of the justification used by the United States to intervene in Cuba was, ‘in the interests of humanity and to put an end to the barbarities, bloodshed and starvation and horrible miseries now existing there’. Specifically, when President William McKinley (1843–1901) conveyed his war message to Congress, he stated: In addition I [have] asked [of Spain] the immediate revocation of the order of reconcentration, so as to permit the people to return to their farms and the needy to be relieved with provisions and supplies from the United States, cooperating with Spanish authorities, so as to afford full relief.301 299   Green, D (2008) Armies of God (London, Arrow) 220–22; Pakenham, T (2003) The Scramble for Africa (London, Abacus) 272–73. 300  Preston, D (2000) The Boxer Rebellion (NYC, Berkeley Books) 284; Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 88, 94, 96; Hull, I (2005) Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca, Cornell University Press) 150; Rubinstein, W (2004) Genocide (London, Longman) 90–92; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 136, 139. 301   McKinley’s war message in Birley, R (ed) (1944) Speeches and Documents in American History, Vol III 1865–1913 (Oxford, Oxford University Press) 230, 233; Scheina, R (2003) Latin America’s Wars: The Age of the Caudillo, 1791–1899 (Washington, Brassey) 364.

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Despite this noble beginning, the Americans were the second country to utilise concentration camps in their war in the Philippines which began in 1899. By the following year, as the insurgency increased, Arthur MacArthur (1845–1912, the father to Douglas) began to move over 10,000 people from rural populations into ring fenced ‘protective zones’. Often these were of a poor standard and many, possibly thousands, perished whilst incarcerated. The same pattern was later replicated with the camps established by the United States in Haiti between 1915 and 1934. Exactly how many died in these camps is a matter of speculation, although estimates range in the thousands.302 The British, in their war with the Boers managed to incarcerate some 154,000 Boer and African civilians. The basis of the detention was Herbert Kitchener’s (1850–1916) intention to deny the Boer guerrillas sustenance by having their civilian populations rounded up and placed in huge laargers. The camps were designed to provide an absolute minimum of resources, with everything under strict control. Kitchener did not intend to kill the women and children in the camps, he simply was not interested in the questions of sanitation, rations and medical care surrounding these civilians. The result was an overall death rate of 24 per cent in the camps. At one point, the death rate peaked at 34.4 per cent in one month alone. In some camps, like Mafeking, the monthly death rates equated to what would have been an annual death rate of 173 per cent. The cumulative result was at least 20,000 white and 12,000 coloured people meeting their deaths, primarily from avoidable epidemics of measles and typhoid. These rates only fell following public uproar in Britain and the work of Emily Hobhouse (1860–1926) who helped establish and lead the Fawcett Commission. The Fawcett Commission acted in the way that the International Committee of the Red Cross (ICRC) would come to do in future conflicts (but not this one), being allowed to investigate and recommend changes to make the camps more humane.303 The final example in this area of concentration camps before the First World War comes from the German colony of Southwest Africa. The concentration camps that the German authorities came to adopt were at the end of their suppression of the Herero and Nama, following their revolts and attacks on white farms between 1904 and 1907. The instruction, from the Kaiser Franz Joseph I (1830–1916) to subdue the rebellions ‘by all means’ may have come very close to genocide. A death rate of between 60,000 and 80,000 people reflected between 66 and 75 per cent of the Herero population. Whilst the German authorities refused to take males within a certain age bracket as prisoners, those who evaded capture were driven into the deserts, after the waterholes had been disabled or poisoned. In addition, one civilian prisoner was being executed each month until the leaders of the revolts were handed over. These policies were clearly advocated and pursued by General Lothar von Trotha (1848–1920). However, when news broke of the annihilation of the Hereros, loud and insistent protests were made in Germany and the Kaiser ordered that apart from the directly guilty rebels, those who voluntarily surrendered had to be treated mercifully. Exactly what 302   Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 124; Applebaum, A (2003) Gulag. A History (London, Penguin) 19; Hull, I (2005) Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca, Cornell University Press) 233; Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900–2001, Vol II (NYC, Brassey) 46–47. 303  Pakenham, T (1991) The Boer War (London, Cardinal) 494–95, 515–18; Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 145–46, 184–85; Knightley, P (1975) The First Casualty (London, Pan) 75–78.

The First World War 155

was merciful is open to debate. In the absence of pre-existing rules governing the concentration camps in which the dissident populations were held, conditions of work, shelter and food were all extremely harsh and the camps had an annual death rate of 11.6 per cent in 1905 and 18.9 per cent in 1906. As horrid as these results were, it would appear that the intentional destruction of the Hereros as an ethnic group was not the deliberate policy of the German government in Berlin, but rather the decision of the local commanders.304 10 .  The First World War

Although there was strong international condemnation of the practices of the local authorities in Southwest Africa in Germany and abroad, when the international community reassembled in 1907 to add to the laws of war, and it came to Convention (IV) respecting the Laws and Customs of War on Land, nothing of note was added to supplement what was already agreed in 1899. As such, it was only reiterated that family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.305 Questions pertaining to the new methods of controlling dissident populations, such as the use of concentration camps, were not examined. The only opening to be critical of these developments lay in the preamble which graced both the 1899 and 1907 instruments, that the laws of war had not yet been completed and all belligerents remained bound by the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity, and the dictates of the public conscience. Unfortunately, attempts to activate ‘the dictates of public conscience’ were nascent and even the emerging ICRC, despite setting up (on its own initiative) a Bureau on Civilian Prisoners, had limited impact at this point, although it did attempt to have some influence as modern warfare began to ensnare civilians in a number of novel ways. The novelty was not in the area of rape, as in this conflict, despite the Allied propaganda, it appears that aside one systematic (possibly planned) episode in early 1914, most of the time instances of rape appear to have not been systematic, preordained or authorised by the German authorities.306 This was unlike the German policies of the utilisation of the labour of occupied populations. In this area, the Germans were clear that ‘the argument of war’ could make the labour of civilians in occupied territories compulsory.307 The application of this approach occurred at two levels. First, civilians who were not deported, but held in occupied zones, were often forced to work for the Germans on projects such as roads and fortifications. The Siegfreid line in France consumed the labour of over one million French citizens. Secondly, civilians in occupied zones risked being taken to Germany to work. An 304   Hull, I (2005) Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca, Cornell University Press) 44–69, 70–89, 152; Totten, S (2004) Century of Genocide (London, Routledge) 15, 27, 30, 46–48. 305   Convention IV Land 1907 Art 46. 306   Brownmiller, S (1975) Against Our Will: Men, Women & Rape (NY, Doubleday) 34–36; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 243–47. 307   Grossgeneralstab (1915) War Book of the German General Staff In trans Morgan, T (2005) (Pennsylvania, Stackpole Books) 84.

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estimated 126,000 French citizens and 60,000 Belgians were deported to work in Germany Although some 5,000 French women and children were returned during the war, the death rate of those working in Germany, depending on which statistics are used, was between 1.8 and 4 per cent. This was despite the unauthorised attempts (there was no authorising convention on this topic at this time) by the ICRC to intervene and assist civilians, foreign and otherwise, held in such places.308 The other area in which the Germans were particularly brutal was with the question of reprisals and collective punishments. In occupied Belgium between August and October 1914, there were 129 incidents in which 10 or more civilians were executed as measures of reprisal. The Germans were clear, going towards these acts that ‘the fear of reprisals’ was the only way to ensure compliance with the expected international norms in the laws of war. The War Book of the German General Staff stated: [C]ertain severities are indispensable to war, nay more, that the only true humanity very often lies in a ruthless application of them . . . professors of international law have wrongly decided that the taking of hostages has disappeared from the practice of civilised nations . . . but hostages and reprisals calm the ‘criminal behaviour of a fanatical population’ as such . . . the ordinary law in this matter [does] generally not suffice, it must be supplemented by the law of the enemy’s right.309

The application of this approach began in the town of Namur after some Germans were attacked. As a reprisal, the town was burnt to the ground and at least 110 people, many of whom were held as hostages in advance, were executed. Three hundred and eighty-four citizens of Tammines were shot on a similar pretext the next day and within the week a further 137 civilians were executed in Dinant because they were ‘collectively culpable’ for the actions of franc-tireurs who could not be identified. Soon after, fearing further franc-tireurs the German authorities executed 248 citizens in the Louvain and deported 1,500 more to Germany. The German forces also used civilians as human shields during combat and as hostages on trains to prevent them from being targeted in 1914. Although such actions were seen by the Germans as regrettable, they maintained that such acts which were necessary to protect both the occupied and occupiers, were lawful. However, due to the outcry of international public opinion, by the end of 1914, Germany stopped these actions which had caused the death of over 5,000 Belgian civilians.310 The Allied forces looked with disdain upon such acts and did not sanction reprisals. Nevertheless, when unauthorised reprisals did occur they rarely dealt with the offenders. For example, when a thief killed a soldier in Surafend in Palestine in 1918, the ANZAC corps responded by killing between 20 and 120 men of the neighbouring local community and burning their village to the ground. There were never any prosecutions for the murders in Surafend.311 308   Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 44, 62; Hull, I (2005) Absolute Destruction: Military Culture and the Practice of War in Imperial Germany (Ithaca, Cornell University Press). 212, 219, 237, 242, 249, 253–54; Horne, J (1994) ‘German Atrocities: 1914’ Journal of Modern History 66: 1–33; Tucker, S (1996) The European Powers in the First World War (New York, Garland) 83. 309   Grossgeneralstab (1915) War Book of the German General Staff In trans Morgan T (2005) (Pennsylvania, Stackpole Books) 4, 6, 85 and 87. 310   Hull, I (2005) Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca, Cornell University Press) 118–25, 209; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 372. 311   Watt, L ‘Stain on the ANZAC Name’ New Zealand Herald (1 August 2009) B4.

The Armenian Genocide 157 11 .  The Armenian Genocide

The nineteenth century was not particularly kind to the Ottoman Empire. Through a series of conflicts the Ottomans lost Greece, much of the Caucasus and eastern Anatolia, Algeria, Egypt, Romania, Serbia, Montenegro, Cyprus, Tunisia, Bosnia, Libya and Albania. Even when they did not lose territory, treaties were forced on them in, inter alia, 1856,312 1878,313 and 1913314 whereby they had to promise tolerance and protection for non-Muslim communities and, in certain areas, autonomy. Whilst the independence of Greece had come on the back of massacres by both the Greek insurgency and the Ottoman authorities, the wars in the Balkans, both before and during the First World War, followed the same track as the Ottoman authorities took an increasingly dim view of their non-Muslim populations. This problem first appeared in 1856, where widespread riots in the Ottoman-controlled Levant eventually culminated four years later in the slaughter of between 20,000 and 25,000 Christians. Thousands more are believed to have died from starvation and diseases, whilst Christian women were swept into harems. A few decades later between 1894 and 1896, a systematic campaign against the Armenians was launched in which between 100,000 and 300,000 were massacred. Further massacres occurred against Armenians in 1909 when another 10,000 to 30,000 are estimated to have been killed. These killings were later supplemented by large-scale deportation orders which were designed to change the ethnic character of Turkey. By the end of 1914, some 1,150,000 people, mainly Greeks, had been deported, of which perhaps half died in the process. Throughout this period there was widespread concern in Europe. For example, at the end of 1912, fearing the collapse of Ottoman authority in Constantinople and possible attacks by enraged Muslims on Christian populations residing there, an inter­ national fleet of warships from France, Germany, Great Britain, Russia, Italy, Spain, the Netherlands and Austria-Hungary landed soldiers to preserve order and protect the Christian population in this threatened city.315 In an attempt to stop such practices occurring elsewhere, the ‘Armenian Reform Agreement’ that aimed to establish autonomy for Armenians in some parts of Anatolia was hoisted on the Ottoman authorities by the Great Powers. A number of Armenians were loyal to these powers and when the First World War broke out, they formed battalions to fight on the Russian side. This is not to suggest that the Russian forces were in any way saintly, as they were also involved in a series of attacks against Jewish populations in 1914 and 1915 along with large-scale deportations of Germans, Gypsies, Hungarians and Turks within their own broad empire.316 This was also a region and a period in which, unlike in the First World War, large-scale atrocities against civilians were well known. Indeed, the Balkan Wars of 1912–13 had seen the large-scale   Treaty of Paris 1856, Art IX. Also, Baumgart, W (1981) The Peace of Paris 1856 (Oxford, ABC) 128–30.   Treaty of San Stefano 1878, Art VI. 314  Treaty of Peace Between Greece, Bulgaria, Montenegro, Serbia and Turkey 1913 in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press). 315   Karsh, E (2006) Islamic Imperialism. A History (NYC, Yale University Press) 92–94, 112–13; Hull, I (2005) Absolute Destruction: Military Culture and the Practice of War in Imperial Germany (Ithaca, Cornell University Press) 213, 278; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 136, 140–41; Totten, S (2004) Century of Genocide (London, Routledge) 68; Rummel, R (1996) Death by Government (London, Transaction) 61. 316   Ferguson, N (2006) The War of the World (London, Allen Lane) 136–38. 312

313

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murder, pillage and rape of opposing civilian communities as the various Serbian, Montenegrin, Bulgarian and Turkish armies advanced and retreated over the disputed territories.317 Accordingly, by the time that the First World War broke out, the main culprit, Turkey, was neither naive nor novice in the situation that was about to unfold before it. Moreover, in the case of the Armenians within Turkey, it appears that some of the Armenian population had started to practice partisan attacks and instigated some anti-Turkish uprisings within the Ottoman Empire. As such, when the Allies landed at Gallipoli, fearing an internal rebellion, the Ottoman authorities turned on the Armenians. Of this event, Winston Churchill (1874–1965) was to write ‘it may well be that the British attack on the Gallipoli Peninsula stimulated the merciless attacks of the Turkish government’.318 On 15 September 1915, the Turkish Minister for the Interior, Mehmed Talaat (1874–1921) cabled the instruction to the armed forces: You have already been informed that the Government . . . has decided to destroy completely all the indicated persons living in Turkey . . . Their existence must be terminated, however tragic the measures taken may be, and no regard must be paid to either age or sex, or to any scruples of conscience.319

He added elsewhere: We have already disposed of three quarters of the Armenians; there are none left in Bitlis, Van and Erzerum. The hatred between the Turks and the Armenians is now so intense that we have to finish them off. If we do not they will plan their revenge.320

The termination of the Armenian people overlapped with evolving goals of a homogenous Turkic-Islamic population, stripped of its Christian communities of Armenians, Greeks, Nestorians, some Syrians and Jews. As a first step, the Armenians were targeted. The initial acts involved the killing of Armenian conscripts in the Ottoman army. Remaining males in the targeted areas were then removed in groups and killed. Some of the few surviving documents of the period stipulated that military commanders were to ‘exterminate all males under 50, priests and teachers [and] leave girls and children to be Islamised’.321 Following this, the elderly, women and children were deported to the deserts of Syria and Mesopatamia. En route, people were shot, stabbed, beaten to death or died of starvation, exposure and thirst. During this entire process, somewhere between 300,000 and 1.8 million Armenians died. If they were not killed, many of the women were taken, raped and sold. In some instances they were tattooed on their arms, chest or face as a sign of their being owned and as a way to discourage escape.322 The ICRC delegate, who managed to visit prisoners of war in both Greece and Turkey recorded:   Hall, R (2000) The Balkan Wars 1912–1913 (London, Routledge) 136–39.  Churchill in Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 394; Rubinstein, W (2004) Genocide (London, Longman) 133–35 319   Talaat noted in Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 390. 320   Talaat in Rubinstein, W (2004) Genocide (London, Longman) 138. 321  See The Ten Commandments of Comite Union and Progress Milton, G (2008) Paradise Lost. Smyrna 1922: The Destruction of Islam’s City of Tolerance (London, Sceptre) 88. 322   Ferguson, N (2006) The War of the World (London, Allen Lane) 178–79; Totten, S (2004) Century of Genocide (London, Routledge) 64; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 396, 433; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 145; Miles, G (2009) Paradise Lost: Smyra 1922 (London, Sceptre) 261, 278, 349, 372. 317 318

The Armenian Genocide 159 During four years of war, the populations of these regions, already few in numbers, had again had to pay a heavy toll in deaths on the battlefields of Europe, Asia and Africa. But the number of dead is nowhere near the number of victims of massacres provoked by racial or religious hatred.323

Scholars remain divided on Germany’s role in the genocide as they had military and advisor missions operating in Turkey at the time. It is notable that a number of high level Nazi officials such as Franz von Papen (1879–1969), Konstantin von Neurath (1873–1956), Karl Donitz (1891–1980) and Rudolf Hoess (1900–1947) – the first commander of Auschwitz – spent much of the First World War in Turkey. The most common view is that although Germany neither welcomed nor instigated the policies, they were guilty of poor judgment, a considerable degree of moral callousness and an excessive concern with what was politically expedient in failing to tell their Turkish allies to stop executing their own non-combatant civilians.324 The focus of the Allies on this question, was that it was the Ottoman authorities were wholly responsible for what had happened. They declared as early as 29 May 1915 that: ‘The Allied governments announce publicly to the Sublime-Porte that they will hold personally responsible [for] these crimes all members of the Ottoman government and those of their agents who are implicated in such massacres.’ The Russian and French, but not the British, versions of this Declaration spoke of ‘crimes committed by Turkey against humanity and civilisation’. As a follow through on this promise, Article 230 of the Treaty of Sevres by which Turkey ended its war with the Allies stipulated: The Turkish Government undertakes to hand over to the Allied Powers the persons whose surrender may be required by the latter as being responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on August 1, 1914.

This Treaty also promised autonomy, if not complete independence to the Armenians and the Kurds and key cosmopolitan areas like Smyra.325 Article 141 added: Turkey undertakes to assure full and complete protection of life and liberty to all inhabitants of Turkey without distinction of birth, nationality, language, race or religion. All inhabitants of Turkey shall be entitled to the free exercise, whether public or private, of any creed, religion or belief.

A special tribunal, either under the authority of the Allied Powers or the League of Nations was to be established for the purpose of bringing those responsible for the atrocities against the Armenian citizens to justice. Against the scepticism of the Americans, the ambivalence of the French and the absence of the Soviets (born Russians), the British produced a list of nine Ottoman leaders accused not of crimes against the Allies, but against their own citizens. These included the ministers of foreign affairs, justice, the grand vizier and the top religious official. The trials, which 323   Telegram of 1923, reprinted in Durand, A (1984) From Sarajevo to Hiroshima: A History of the International Committee of the Red Cross (Geneva, Henry Dunant Institute) 222. 324   Hull, I (2005) Absolute Destruction: Military Culture and the Practice of War in Imperial Germany (Ithaca, Cornell University Press) 265–66, 283; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 150; Tucker, S (1996) The European Powers in the First World War (New York, Garland) 60–61, 525; Totten, S (2004) Century of Genocide (London, Routledge) 57–61. 325   Treaty of Sevres, 1920, Arts 64, 68. Note also point 12 of Woodrow Wilson’s 14 Points.

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were held in Constantinople, saw the production of government records from which some judgements were handed down. The first two cases concerned the military and police commanders of the Yozgat district who had authorised the deportations of the Armenians there. The court ruled the two men had: [I]ssued orders to their subalterns at the time of the deportations of the Armenians. Acting under these orders, their underlings (fell on the Armenians) and without regard to ill health, treating men, women and children alike, organised them into deportation caravans . . . illegal orders were handed down for the murder of the males . . . they premeditatedly, with intent, murdered after the men had their hands tied behind their backs . . . The officials then practiced all methods of murder . . . Nor did they make any attempt to prevent further killings . . . All these facts are against humanity and civilisation. They are never compatible in any manner to human considerations. Moslem supreme justice considers these events as murder, pillage, robbery and crimes of enormous magnitude.326

Three minor officials were hanged, and three others who had fled the country, including Talaat, were sentenced to death in absentia. These death sentences were carried out by non-sanctioned Armenian assassins. However, before the trials could run their full course, Turkey descended into civil war after beating back a Greek invasion of the Levantine Coast. The victorious Turkish forces, supplemented by an unsavoury band of irregulars, then turned on the cosmopolitan areas on the coast, such as Smyra, and ended a successful military campaign with one of rape, murder and pillage, followed by the burning to the ground of one of the last truly multicultural cities in Turkey.327 Soon after, the forces of Mustafa Kemal Ataturk (1881–1938) took 24 British hostages who were resident in Istanbul. All of these hostages were eventually swapped for the remaining Turkish war criminals held in British custody. To complete the process, a series of bilateral treaties with the new Turkish government were supplemented by the 1923 Treaty of Lausanne, which abrogated the Treaty of Sevres. Although the Treaty of Lausanne maintained the importance of the protection of minorities within Turkey, the compulsory transfer of some 1.2–1.5 million Greeks from Anatolia and 356,000 Turks from Greece was facilitated. At the same time, discussions of war crime tribunals for the genocides or war crimes carried out either in the First World War or afterwards when Smyra was literally burnt to the ground, were absent. In this last act, perhaps 100,000 people were killed, whilst 160,000 survivors were deported into the interior, most of whom were never heard of again.328 12.  Between the Wars

Learning quickly from the lessons of the First World War, in 1921, 1923, 1925 and 1930 the ICRC called for the establishment of a convention for the protection of noncombatants in times of war, replete with ICRC visitation rights to captive populations 326   Kazarian, H (1972) ‘A Turkish Military Court Tries The Principal Genocidists of the District of Yozgat The Armenian Review 25 (Summer) 36. 327   The sack of Smyrna is discussed in ch 2 Targets. 328  Rubinstein, W (2004) Genocide (London, Longman) 142–44; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 146; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 406; Tucker, S (1996) The European Powers in the First World War (New York, Garland) 422.

Between the Wars 161

of non-combatants.329 However, the ICRC was substantially without success on this question during the inter-war period. The closest they got to success was the proposed International Convention on the Condition and Protection of Civilians of Enemy Nationality Who are on Territory Belonging to or Occupied by a Belligerent.330 However, this Convention failed to eventuate. This was unfortunate, as this proposed regime tried to build on the 1907 Hague Convention and added that if hostages were taken, they should be treated humanely and not be put to death. Deportations of civilians outside the territory of the occupied State, as happened in the First World War, were prima facie forbidden, and means of communication with civilians, for which the ICRC would have been important, were to remain open.331 The only small success that was achieved with regard to the topics of importance in this chapter was with regard to rape, of which Article 3 of the 1929 Geneva Convention on Prisoners of War stipulated a carefully nuanced sentence that ‘women shall be treated with all the regard due to their sex’. Although this has the obvious limitation of only being applicable to prisoners of war, and not civilians, it was still a small step in the right direction. The failure of international law to substantially evolve between World Wars One and Two did not mean that the ICRC failed to try to deal with civilians in times of conflict. Indeed, in the Spanish Civil War they became active, helping to trace some 30,000 missing persons and to reunite families scattered and/or separated by the front line or driven to seek refuge abroad. Yet such acts were of limited value in a conflict in which atrocities carried out on civilians became standard. For example, despite both sides stating that rape by their forces was prohibited, the rape of Republic woman by Moroccan troops was widespread and in a large number of captured Republican towns, people soon found Nationalist graffiti daubed in big letters on public walls which read ‘your women will give birth to fascists’.332 The other area in which the Spanish Civil War was notable was with regard to the practice of reprisals, via collective punishments, against non-combatants. Such acts were not unusual in the inter-war period, being notable both in India (when General Reginald Dyer (1864–1927) approached a group tangentially linked to a riot that killed, inter alia, five British citizens, and had his forces open fire, killing between 379 and 1,800 people)333 and Ireland. In the second instance, following the assassination by the Irish Republican Army (IRA) of 12 British spies on 21 November 1920, on the same day, 14 civilians, including one woman andone child were shot dead by police in Croke Park, Dublin. Such reprisals, which soon became routine, were usually carried out by drunken soldiers or policemen venting their spleen against property and by killing Sinn Fein or IRA supporters. Dozens of residences were ‘fired up’ as part of nonsanctioned reprisals across Ireland, before part of Cork city was burnt to the ground 329  Resolutions from the 1923 and 1925 ICRC Conferences in ICRC (1995) The Humanitarian Endeavour (Geneva, ICRC) 157, 159. 330  Note the prohibition of reprisals and hostage taking. The Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality Who Are On Territory Belonging to or Occupied by a Belligerent 1934, Arts 10 and 11. 331   Junod, M (1982) Warriors Without Weapons (Geneva, ICRC) 230–31; Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 413. 332   Beevor, A (1982) The Spanish Civil War (London, Cassell) 51, 101, 103, 109; Othen, C (2008) Franco’s International Brigades (Wiltshire, Reportage) 195; Capdevilla, L (2006) War Dead: Western Societies and the Casualties of War (Edinburgh, Edinburgh University Press) 103. 333   Collett, N (2005) The Butcher of Amrisar (London, Hambledon).

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by Auxiliaries in late 1920 as a large-scale non-authorised reprisal. After the British left the Republic of Ireland and the civil war broke out, the Provisional Government resorted to measures that were indistinguishable from the British to win what had become a civil war. In this regard 77 republican captives were executed, regardless of whatever services they had performed on behalf of Irish patriotism. The IRA responded by killing government ministers, to which the government replied by executing four prisoners for each murder.334 In Latin America, civilians were increasingly killed as collateral damage as battlefields sprang up around them, or they were victims of reprisals, being convicted of crimes of sedition or treason, or held as hostages for ransom or execution. This practice was noticeable in the Mexican Revolution of 1910–20, the conflict in Nicaragua between 1927 and 1933, and the conflict in El Salvador around 1932 and again in 1944, with around 3,000 being murdered in the last instance. Similarly, under the British mandate of Palestine, anti-Jewish violence was evident as early as 1920, with the killing of Jewish civilians occurring periodically during the decade. Things escalated to the point that in the middle of 1938, an Arab terrorist threw a bomb into a Jewish wedding. One month later, the underground Jewish defence force responded in kind, when a Jewish terrorist bomb exploded in Haifa melon market, killing 39 Arabs. The British response to the Arab actions and subsequent uprising was swift, with over 100 captured rebels being executed between 1937 and 1939. British troops also routinely demolished houses and orange groves wherever they were fired upon. In addition, to prevent attacks against their trains, male relatives of the local guerrilla commanders were placed on inspection trolleys attached to the front of each train.335 In the case of Spain, hostage-taking and reprisals against civilians became an entrenched practice for both sides, and even some spectator countries. Thus, when the German battleship Deutschland stationed off Ibiza was attacked by a Republican plane in 1937, Hitler ordered the Spanish harbour town of Almeria to be attacked for one hour. This left 21 civilians dead and 53 injured. With regard to the primary belligerents in the war, the only vague difference on the question of reprisals was that Republican reprisals tended to come from the bottom up, whereas Nationalist reprisals were top down. For example, after nationalist bombings angry crowds were known to storm the prisons, and kill the Nationalist prisoners and hostages who were detained on the inside. During the battle for Madrid, 1,029 inmates of the prison were shot, whilst in Grenada some 2,000 were thought to have been killed this way. These deaths were supplemented by class-orientated killings such as those of the estimated 7,937 religious persons, thousands of right-wing nationalists and even those in ideologically different left wing groups. Nationalist killings of civilians was much greater than the Republicans. Targets, once occupation was complete involved, inter alia, union leaders, teachers, doctors, intellectuals, even the typists working for revolutionary committees. Estimates vary widely, from 50,000 to 250,000. Queipo de Lllano (1875–1951) boasted of a ratio of 10 leftists for every Nationalist supporter killed. The executions continued long after the war ended. For example, 16,952 were ‘legally sentenced’ to 334   Cottrell, P (2006) The Anglo-Irish War. The Troubles of 1913–1922 (London, Osprey) 30, 47–49, 62; Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 24–25. 335  Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900–2001, Vol II (NYC, Brassey) 17–18, 27, 31–32, 68, 82, 176; Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 95–97.

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death in 1944 in Malaga alone. A total of 200,000 may be a good overall estimate. The truth is very difficult to ascertain. In 1979, a mass grave 500 metres long near Sargossa with around 7,000 corpses in it was found.336 Even greater atrocities were to occur with the emerging Soviet state. On the issue of reprisals and collective responsibilities during the Russian Revolution, Vladimir Lenin (1870–1924) directed Bolshevik leaders that, in order to crush the rebellion, a selection of known rich men should be identified publically, held as hostages and then hung, in groups of over 100 people per time as retaliation for attacks upon Soviet forces. Leon Trotsky (1879–1940) would also order his troops to arrest all of the families of soldiers who fought against them. He explained: ‘Let the turncoats realise that they are at the same time betraying their own families – their fathers, mothers, sisters, brothers, wives and children’.337 Thousands of innocent people were killed under collective responsibility as a result of such dictates between 1917 and 1921 for offences as minor as the failure of someone else to clear the railway lines of snow. Others were held as hostages and made to answer with their lives if regions did meet their food production quotas or if their sons tried to avoid conscription, whilst villages were burnt to the ground if they were believed to have helped opposing forces.338 To supplement their work on reprisals and collective responsibilities, the Soviets borrowed directly from the French Revolution with a policy that utilised terror of civilian populations to achieve their goals. This is not to suggest that the initial opponents of the Soviets were any better, as a White Terror, although never as systematic as the Red Terror, still allowed for a wave of pogroms carried out in the Ukraine in 1919 that left perhaps 150,000 Jewish victims.339 The Red Terror emulated such achievements. Official figures suggest that the security services executed some 6,300 people from 20 provinces by 1918, but this is almost certainly an underestimate. Those executed were nearly always from the economic classes which were the antithesis of the communist revolution. Vladimir Lenin and Joseph Stalin (1878–1953) were both on record as wanting to ‘liquidate the kulaks as a class’,340 whilst the early leader of the Cheka, Felix Dzerzhinsky (1877–1926), explained his goal of ‘exterminating the bourgeoisie as a class’.341 The problem with this targeting was/is that the mass killing of a group of people because of their socio-economic identity was not, according to the definitions of the 1948 Convention, a crime of genocide. In addition, both Lenin and Stalin targeted different groups like these as ‘class enemies’ for certain periods. For example, after the White armies were defeated and fled from the shores of the Black Sea, between 50,000 and 200,000 ‘politically unreliable’ elements were swept up by the 336   Beevor, A (1982) The Spanish Civil War (London, Cassell) 101–109, 125, 192, 214, 284–85; Lannon, F (2002) The Spanish Civil War (London, Osprey) 72–76; Junod, M (1982) Warriors Without Weapons (Geneva, ICRC) 90, 98, 107; Othen, C (2008) Franco’s International Brigades (Wiltshire, Reportage) 56–57; Kershaw, I (2008) Hitler (London, Allen); 384. 337   Mawdsley, E (2000) The Russian Civil War (Edinburgh, Birlinn) 61. 338   Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 72–73, 75–78, 92–94, 116–17; Volkogonov, D (1994) Lenin: Life and Legacy trans Shukman, H (London, Free Press) 69–70. 339   Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 292; Mawdsley, E (2000) The Russian Civil War (Edinburgh, Birlinn) 210. 340  Amis, M (2003) Koba the Dread (London, Vintage) 124; Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 55, 59, 143; Mawdsley, E (2000) The Russian Civil War (Edinburgh, Birlinn) 83. 341   Mawdsley, E (2000) The Russian Civil War (Edinburgh, Birlinn) 81.

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advancing Red Army and between 80,000 and 100,000 ‘bandit families’ were executed. In addition, some 270,000 ethnic Turks were deported after their villages were destroyed from the Tambov and the Ukraine by the middle of 1921. Similar mass deportations occurred again between 1930 and 1933. Such terror was not the monopoly of any one target. That is, unlike in the genocide in Germany, no person nor any social identity was protected in the Soviet Union. Everyone was terrorised to such an extent that in the repressions between 1936 and 1938 there were six million arrests, three million executions and two million deaths in the Gulags.342 The primary method of dealing with suspected dissidents in the Stalinist period was the ‘Gulag’. The word Gulag is an acronym, meaning Glavnoe upravlenie lagerei, or main camp. Gulags were the Soviet versions of concentration camps. The Gulag had its antecedents in tsarist Russia and the forced labour brigades that operated in Siberia from the seventeenth century onwards. From the beginning, being exiled was seen as a humane alternative to the death sentence or mutilation. However, the scale and depths of depravity that Gulags came to descend to under the Soviet period outstripped that of their predecessors. Nevertheless, the Soviets were always very legal in this approach. Indeed one of the unique aspects of the Soviet system was that inmates arrived, most of the time, via a legal process. This was completely different to the Holocaust, where people were swept up, without legal process, because of the displeasure they caused to the fascists. The only difficulty with the Soviet legal processes, as their infamous show trials came to exemplify, was that their legal system, more often than not, omitted the most basic rights and fundamental legal processes for defendants.343 The Japanese would be guilty (literally, at the Tokyo Trials) for similar abuses at the end of the Second World War.344 In the course of the existence of the Soviet Union, at least 476 distinct camp complexes came into being. The largest camp, Bamlag, held 260,000 prisoners. Most of these people were accused of political crimes, or were held as hostages, for the actions of others. In the middle of 1939, at least 10,000 children were also being held. Civilians taken from Stalin’s conquests in Poland and the Baltic were also often taken into Gulags. The best estimates suggest some 18 million people passed through this system, with another six million sent into exile, deported to unpopulated areas of the Soviet Union. Similar deportations, but without the same death rates, would plague Eastern Europe after the Second World War, as hundreds of thousands of dissidents were emptied from Albania, Bulgaria, Poland, Czechoslovakia, Hungary and Romania into either national or regional Gulags. Cuba would also manage to imprison 100,000 of its own citizens for political reasons between 1959 and the turn of the twenty-first century.345 In one form or another, 342   Bullock, D (2008) The Russian Civil War (London, Osprey) 81, 101, 122, 286; Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 289–91; Beckett, I (2001) Modern Insurgencies and Counter Insurgencies (London, Routledge) 50; Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 8–9, 99–102, 168. 343  Applebaum, A (2003) Gulag. A History (London, Penguin) 127–40; Amis, M (2003) Koba the Dread (London, Vintage) 7; Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 126–27. 344   United Nations War Crimes Commission (1945) Law Reports of Trials of War Criminals: The Almelo Trial Case No 3, Vol I (London, HMSO) 35; United Nations War Crimes Commission (1946) Law Reports of Trials of War Criminals: The Trial of Captain Kato Case Number 28, Vol I (London, HMSO) 37; United Nations War Crimes Commission (1946) Law Reports of Trials of War Criminals: Trial of General Tanaka Hisakasu, Vol VI (London, HMSO) 66. 345   Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 212–13, 218–19, 225–31, 372, 416–23, 439, 449, 656.

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political prisons existed in the Soviet Union until 1987, when Mikhail Gorbachev (b 1931), himself the grandson of Gulag prisoners, began to dissolve all of the political camps under his auspices.346 The Gulags were different from the concentration camps of the Nazis because the Gulag camps never overlapped with extermination camps. Gulags were primarily focused on the provision of prisoners to complete projects such as the White Sea canal, which covered a route of 227 kilometres and cost some 25,000 lives. Although death was almost guaranteed in some Gulags, death was not the intention. Inmates were killed by starvation through policies such as the ‘eat as you work’ schemes and from the vagaries of war, such as when one quarter of the Gulag population starved to death in the winter of 1941–42. Inmates were killed by transport methods, from being stuffed into railway wagons without adequate food or water, through to forced marches in inhumane conditions. Finally, they were killed via inhumane work, harsh discipline and even quotas, such as those in operation during 1937 for how many executions should be achieved in a Gulag per year.347 13.  The Second World War A. Rape

Some commanders during the Second World War took the crime of rape very seriously. For example, General George Patton (1885–1945) warned that he would hang any of his men convicted of rape. Although those convicted of the crime were not hung, 70 men convicted of this crime (out of 971 courts martials for rape in the American forces between 1942 and 1947) were executed. Likewise, rape was dealt with particularly severely by the German authorities in Italy, Poland, Greece and France, with a small number of German soldiers being executed for such offences. This was the only crime that Hermann Goering (1893–1946) clearly objected to at Nuremburg and evidence showed he actually increased the penalty for rape by soldiers under his command from prison to death. Even in the hardest struggles, such as those with the Soviet Union, whilst some commanders including Wilhelm Keitel (1882–1946) did not believe ‘lack of self-control in sexual matters’ warranted a court martial, other German commanders still prosecuted and executed convicted German soldiers guilty of the crime of rape.348 Allegations of rape also accompanied Commonwealth troops in Kure 346  Applebaum, A (2003) Gulag. A History (London, Penguin) 3, 4–5, 13, 14, 15, 17, 64, 173, 382–83; Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 80, 204; Ferguson, N (2006) The War of the World (London, Allen Lane) 204–208; Mawdsley, E (2000) The Russian Civil War (Edinburgh, Birlinn) 191; Amis, M (2003) Koba the Dread (London, Vintage) 208. 347  Applebaum, A (2003) Gulag. A History (London, Penguin) 14, 23, 45–46, 54–55, 57, 77–79, 88, 99, 104, 113–16, 119, 160–66, 170–71, 211, 378–79, 388. 348   Bourke, J (2007) Rape. Sexual Violence History (London, Shoemaker) 357–63; de Zayas, A (1989) The Wehrmacht War Crimes Bureau, 1939–1945 (Nebraska, Nebraska University Press) 18–21; Brownmiller, S (1975) Against Our Will: Men, Women and Rape (NY, Doubleday) 34–36, 47–51; Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 82, 337; Vinen, R (2006) The Unfree French: Life Under the Occupation (London, Penguin) 25, 28–29, 171, 180; Rees, L (1999) War of the Century: When Hitler Fought Stalin (London, BBC) 103–104, 222–23; Tolstoy, N (1977) Victims of Yalta (London, Hodder) 57, 226; Gellately, R (2007) The Nuremberg Interviews (London, Pimlico) 113.

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(the port of Hiroshima) and American troops in Okinawa and Europe, where up to 17,000 women may have been raped. In Italy, rape by (French) Moroccan troops was the subject of over 3,100 official complaints.349 Japan stands out in turning a blind eye to the practice of rape by soldiers in a number of campaigns in, inter alia, China and the Philippines. In the case of China, when Nanking fell, somewhere between 8,000 and 20,000 women are believed to have been raped. Often these women were killed afterwards to prevent them going to the authorities. Notwithstanding the fact that military policy forbade rape and the army had officially outlawed it, it appears that rape was deeply embedded in the military culture and that few took the prohibition seriously, when coupled with the low status of captured women. However some leaders, like General Tomoyuki Yamashita (1885–1946) did have some of his own men executed when they were convicted of this crime. Ironically, in response to such problems, the Japanese government attempted to create a giant system of prostitution through 200,000 so-called ‘comfort women’ of Chinese and Korean dissent, in addition to hundreds of white women. These women were forced to work as prostitutes in Japanese military brothels.350 It was because of the scale of such problems that at the War Crimes Tribunal in Tokyo (unlike at Nuremberg) sexual violence and war rape were, for the first time in international law, prosecuted as war crimes under the wording ‘inhumane treatment’ and ‘ill-treatment’ in the 1907 Hague Convention and for ‘failure to respect family honour and rights’. In this regard, General Yamashita (despite his attempts at controlling his troops) was convicted for allowing, inter alia, ‘rape under his command’, whilst Takashi Sakai (1887–1946)351 was convicted of crimes against civilians, including, inter alia, allowing the rape of thousands of women following the fall of Nanking. Likewise, Generals Akira Muto (1892–1948) and Iwane Matsui (1878–1948) were in charge of the army that took Nanking when the atrocities were committed, as was Baron Koki Hirota (1878–1948), as Foreign Minister during the same period.352 The topic of ‘comfort women’ has proved more difficult, despite the fact that some 35 Dutch comfort women brought a successful case before the Batavia Military Tribunal in 1948. Although offering limited compensation for these victims, Japan has consistently avoided substantial responsibility for the wrongdoing, denying that the women were coerced and debating the numbers involved and the role of the military.353 Whilst some of the victims of Japanese rape and sexual coercion found justice after the Second World War, the same cannot be said for Soviet victims in this area. Rape was also prohibited in the Soviet military manuals, for which the penalty was death. Some Russian commanders clearly tried to stop their men raping but these attempts appear weak against the wave of uncontrolled Soviet soldiers who swept over Eastern 349  Schrijvers, P (2002) The GI War Against Japan (NYC, New York University Press) 212, 216; Holland, J (2008) Italy’s Sorrow: A Year of War, 1944–1945 (London, St Martin’s) 151, 166–68, 391. 350   Tanaka, T (2003) Japan’s Comfort Women: Sexual Slavery and Prostitution During World War II (London, Routledge) 111–17; Ferguson, N (2006) The War of the World (London, Allen Lane) 478–80; Chang, I (1997) The Rape of Nanking (Sydney, Penguin) 48–50, 52–54, 89–98; Rees, L (2001) Horror of the East (London, BBC) 78–79, 81; Hastings, M (2008) Nemesis: The Battle for Japan (London, Harper) 55, 215, 254–55, 388. 351   United Nations War Crimes Commission (1948) Law Reports of the Trials of War Criminals: The Trial of Takashi Sakai, Vol III 1. 352   Brackman, A (1990) The Other Nuremberg: The Tokyo War Crimes Trials (Glasgow, Fontana) 454–64. 353  Reuters (2007) ‘Abe Rules Out New Apology’ New Zealand Herald (6 March 2007) B1; Brackman, A (1990) The Other Nuremberg: The Tokyo War Crimes Trials (Glasgow, Fontana) 190–91, 195, 198, 334, 365–66; Lamont-Brown, R (2002) Ships from Hell. Japanese War Crimes on the High Seas (London, Sutton) 128.

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Europe. This problem was muddied by the large numbers of women who turned to prostitution as one of the few ways to feed themselves and their children. Moreover, the supreme authorities tended to turn a blind eye to these often overlapping problems. Moreover, the supreme authorities tended to turn a blind eye to this problem. For example, when Stalin was told how some Red Army soldiers were treating German refugees he is reported to have said ‘we lecture our solders too much, let them have some initiative’.354 When he was later told of the rape of Yugoslavian women he retorted ‘and what is awful in his having fun with a woman, after such horrors?’355 Such a lack of restraint created the way for the large-scale rape of all females caught in their path, from foreign women working in the Reich, through to patients in psychiatric hospitals. The exact number of women raped by Soviet troops will never be known, but it was most probably in the hundreds of thousands if not the low millions. The rate of one million illegal abortions a year performed in Germany between 1945 and 1948 pointed to an unprecedented and horrifying magnitude. These rape figures were supplemented with an estimated 100,000 people who may have been killed in wanton acts of murder, after Germany had surrendered.356 B. Reprisals

Reprisals were of plague-like proportions in the Second World War. The Axis forces in general liked using them whilst in occupied territories as an attempt to terrify civilian populations into submission. Conversely, many Partisan or Resistance groups sought to provoke such reprisals or acts of terror as a way to both galvanise and mobilise the civilian populations against their oppressors. Collectively, these two approaches collided to result in the deaths of hundreds of thousands of non-combatants. This process began immediately prior to the Second World War on 24 July 1939, when General Eduard Wagner (1894–1944), whilst preparing for the invasion of Poland, issued a set of special regulations that authorised German troops to take and execute hostages in the event of attacks by snipers or irregulars. This approach was quickly followed in all of the occupied territories. In 1940, the Commander in Chief of the German Army in France defined hostages as: ‘Inhabitants of a country who guarantee with their lives the impeccable attitude of the population. The responsibility for their fate is thus placed in the hands of their compatriots.’357 After warning Warsaw and other Polish cities ‘that every attempt at rebellion will be drowned in a sea of blood’ the German authorities stated that for every assassination of a German soldier in Warsaw, 100 Polish civilians would be executed. This rule was applied loosely both during and after the occupation. Thus, after the city of Bromberg  Stalin noted in Rees, L (1999) War of the Century: When Hitler Fought Stalin (London, BBC) 60.  Stalin in Amis, M (2003) Koba the Dread (London, Vintage) 135. Stafford, D (2007) Endgame 1945 (Abacus, London) 130–33. 356   Beevor, A (2002) Berlin: The Downfall 1945 (London, Penguin) 28–33, 106–10, 122, 273, 295, 326–27, 410–15; Merridale, C (2005) Ivan’s War: The Red Army 1939–45 (London, Faber) 264, 267–77; Weiner, A (2006) ‘Something to Die For, A Lot to Kill For’ In Kassimeris, G (ed) The Barbarisation of Warfare (London, Hurst) 100, 112–16. 357   Hostage definition in Russell of Liverpool (2008) The Scourge of the Swastika: A History of Nazi War Crimes 82–83. Also, Megargee, G (2007) War of Annihilation: Combat and Genocide on the Eastern Front, 1941 (Boulder, Rowman) 13. 354 355

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was occupied, 400 civilians were taken as hostages and executed in reprisal for an unknown but small number of German soldiers who had been hit by unidentified gunfire. Likewise, when a bullet fired from the Copernicus secondary school hit a German army officer, 50 pupils of the school were taken out and executed – despite the gunman bravely surrendering himself. After such initial acts, the Nazis went on to shoot, ‘in reprisal’ 50,000 Polish civilians, 15,000 religious and political leaders and 2,000 Jews. Of such actions Hans Frank (1900–1946) explained: In Prague, large red posters were put up announcing that seven Czechs were shot [in one] day . . . If I wanted to put up a poster for every seven Poles shot, the forests of Poland would not suffice to produce the paper for such posters.358

The Nazis followed these approaches to their conflict in the Soviet Union. Although some Nazi commanders like Alfred Rosenberg (1893–1946), Arthur Seyss-Inquart (1892–1946), and Konstantin von Neurath (1873–1956) attempted to reign in excessive reprisals, Adolf Hitler ordered that it was necessary to treat local populations ‘strictly but justly’ so as to gain their support in the fight against ‘banditry’. To assist this he recommended rewards for cooperation.359 However, in cases of non-cooperation he stated that ‘reprisals for action in support of the bandits must be more severe’.360 In this regard, it was agreed from the outset of the invasion of Russia that harsh ‘collective measures of force against villages’ would be used in the areas where support (from active fighting through to the provision of food, transport and/or shelter) for partisan activity was detected. In some instances, civilians were also used as shields in times of conflict, although this ended up being of little value. For example, the German besiegers of Leningrad adopted the practice of advancing behind screens of women, children and old men towards the Soviet lines. Due to the fact that it obviously confused the Soviet defenders as to what to do, Stalin decided to resolve the matter. He stated in late September 1941 that hostages were ‘unwilling enemies’ and decreed: [I]f there are such people among the Bolsheviks [that is, soldiers who refused to shoot at the screen of civilians] then they should be destroyed first, because they are more dangerous than the Fascists. My advice is, don’t be sentimental, smash the enemy and his willing accomplices in the teeth. Hit the Germans and their delegates, whoever they might be, with everything you’ve got, cut the enemy down, never mind if they are willing or unwilling enemies.361

To further such practices of using hostages and reprisals, the German High Command, exonerated their soldiers in advance for any crimes committed by them (provided they were mandated by a battalion commander or higher).362 At the end of July 1941, Keitel added that they would successfully conquer Russia:

358  Olson, L (2003) For Your Freedom and Ours (London, Heineman) 202, 206; Davies, N (2003) Rising ’44: The Battle for Warsaw (London, Pan) 33, 197; Burleigh, M (2010) Moral Combat. A History of World War II (London, Harper) 128–29, 539. 359   Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 129, 141, 171, 457, 469. 360   Directive 46 in Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 197; Kershaw, I (2008) Hitler (London, Allen) 518–24, 670–71. 361  Stalin, noted in Burleigh, M (2010) Moral Combat. A History of World War II (London, Harper) 346. 362   Beevor, A (1998) Stalingrad (London, Penguin) 14–15, 54, 177; Megargee, G (2007) War of Annihilation: Combat and Genocide on the Eastern Front, 1941 (Boulder, Rowman) 37, 65, 126; Davies, N (2003) Rising ’44: The Battle for Warsaw (London, Pan) 299; Olson, L (2003) For Your Freedom and Ours (London, Heineman) 329.

The Second World War 169 [N]ot by legal punishment of the guilty, but by striking such terror into the population that it loses all will to resist . . . they will contrive to maintain order . . . by employing suitably draconian methods . . . this war no longer has anything to do with knightly conduct or with the agreements of the Geneva Convention. . . . the troops are therefore empowered and are in duty bound in this war to use without mitigation even against women and children any means that will lead to success.363

Apparently Keitel had proposed a ratio of five civilians killed as a reprisal measure for each German soldier, but Hitler had raised this to 50 to one. In practice this appears to have risen to between 50 and 100 Soviet civilians for the life of each German soldier. Some commanders executed much higher numbers than those suggested. For example, on 2 July 1941, 1,160 Jews were killed in a reprisal for the killing of 10 German soldiers. This type of example was replicated hundreds of times, as the war against the Jewish people was closely tied into the use of reprisals, although in the majority of cases, there was no link between the victims and the acts that offended the Germans. The policy of harsh reprisals was also carried through in other parts of Eastern Europe. After a bomb destroyed a Romanian military headquarters in the captured city of Odessa in October 1941, the Romanian army shot and burnt alive more than 30,000 people of Jewish heritage and put another 35,000 into ghettos. Fifteen thousand of the latter group died of neglect in the next three years.364 This pattern was replicated everywhere in the East. In Belarus, no fewer than 628 villages were destroyed by German troops and perhaps as many as 350,000 people lost their lives as a direct consequence of reprisals associated with anti-partisan operations. In Yugoslavia vast numbers of peasants were killed as reprisals for attacks on German forces. As many as 7,000 men and boys were killed in Kragujevac, 1,755 in Kraljevo and 80,000 in Jajinci. War diaries record hostages being executed in batches of between 50 and 250. Twenty thousand hostages were shot in the six months following the German offensive in Kragujevac, Serbia, in 1941. At Lidice, after the assassination of General Reinhard Heydrich (1904–1942), the Germans shot 172 men and boys over the age of 16. A further 195 were sent to concentration camps before the village was completely destroyed. In Warsaw, after General Franz Kutscher (1904–1944) was killed, they shot 300 civilians.365 A strict policy of reprisals against civilians was also carried out in Western Europe. This was first evident in Crete where, following the killing and mutilation of German parachutists, three villages (Skines, Prasses and Kandamos) were destroyed and the whole male population was executed. In Greece, the Nazis may have burned and 363   Keitel Order in Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 333; Directive 33 in Trevor-Roper, H (1964) Hitler’s War Directives 1939–1945 (London, Pan) 145. Note also the very similar Jodl Order in Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 350. 364  Megargee, G (2007) War of Annihilation: Combat and Genocide on the Eastern Front, 1941 (Boulder, Rowman) 70, 97, 122–23, 125. Also, Habeck, M (2006) ‘Barbarity and Warfare on the Eastern Front’ In Kassimer, G (ed) The Barbarisation of Warfare (London, Hurst) 83, 96–98; Baker, N (2008) Human Smoke (London, Simon & Schuster) 413; Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 333. 365   Beckett, I (2001) Modern Insurgencies and Counter Insurgencies (London, Routledge) 61; Davies, N (2003) Rising ’44: The Battle for Warsaw (London, Pan) 198; Megargee, G (2007) War of Annihilation: Combat and Genocide on the Eastern Front, 1941 (Boulder, Rowman) 127; Rummel, R (1996) Death by Government (London, Transaction) 115; Beckett, I (2001) Modern Insurgencies and Counter Insurgencies (London, Routledge) 66; Woodhead, H (1985) Scorched Earth (NY, TimeLife Books) 127.

170  Occupation

destroyed as many as 1,600 villages and as many as 25,000 Greeks may have died as a direct result of reprisals. In the Netherlands, five civilians were executed after an attack on a German train in Rotterdam in the middle of 1942 and 10 more after the shooting of a German medical orderly in early 1943. The rate of reprisal shootings went up dramatically after September 1944 and perhaps 8,000 lives, in total, were lost through German military or police actions.366 In France, although fewer than 2,000 Germans died at the hands of the French Resistance before the retreat of August 1944, the Germans and their Vichy collaborators killed some 29,660 hostages and deported a further 21,000 to concentration camps, of whom only 40 per cent returned. This process began soon after invasion. The so-called Hostages Order (in France) the following year stated that: 1. All Frenchmen held in custody of any kind by the German authorities in France are to be considered hostages. 2. If any incident occurs, a number of these hostages are to be shot, to be determined according to the gravity of the offence.367

For example, in August 1941, a German colonel was stabbed on the Paris subway. By the end of the month, 6,000 Jewish people were arrested and 50 French hostages were shot. Such processes accelerated rapidly following the Allied landings in France. Following resistance activity, on 8 June 1944, 99 citizens from Tulle were hanged and a further 200 deported to Germany. On 10 June 642 men, women and children in the village of Oradour-sur-Glane were herded into a church and burnt alive. A further 67 people were executed at Argenton. Amongst other examples, further reprisals of note followed ‘battles with terrorists’ killing 25 civilians in St Pol-de-Leon and 42 men, women and children in Gouensou. The execution of two German officers resulted with the killing of 65 civilians in Bucheres. At Ruines the German army machinegunned 25 inhabitants, whilst at Clavieres they killed nine people and burnt the village down. At Murat, following the assassination of the local Vichy Gestapo chief, 25 local people were summarily court-martialled and shot. In Tourouvre 68 men, women and children were killed after a similar act, whilst in Maille, 42 women and 44 children were executed after an order went out stating that ‘reprisals cannot be harsh enough’.368 Reprisals were equally forceful in Italy after the Italians changed sides. Hitler originally demanded 50 Italian civilians for every German soldier killed, although this was later reduced to 10. Typically, these reprisals were usually inflicted on those already in prison, but often there was not sufficient numbers, so others ‘worthy of death’, such as Jews and/or communists, were taken and executed. After one attack in Rome, 335 civilians were executed. Other mass killings of civilians due to the activities of partisans ran into the thousands.369 366   Beckett, I (2001) Modern Insurgencies and Counter Insurgencies (London, Routledge) 57, 68; Rummel, R (1996) Death by Government (London, Transaction) 115; de Zayas, A (1989) The Wehrmacht War Crimes Bureau, 1939–1945 (Nebraska, Nebraska University Press) 161. 367   The Hostages Order in Russell of Liverpool (2008) The Scourge of the Swastika: A History of Nazi War Crimes 83–84. 368  Glover, M (1982) The Velvet Glove. The Decline and Fall of Moderation in War (London, Hodder) 68; Burleigh, M (2010) Moral Combat. A History of World War II (London, Harper) 215–20, 280–86; Russell of Liverpool (2008) The Scourge of the Swastika: A History of Nazi War Crimes 86. 369   Holland, J (2008) Italy’s Sorrow: A Year of War, 1944–1945 (London, St Martin’s) xliii–xlv, 221–22, 265, 290, 314, 356; Glover, M (1982); The Velvet Glove The Decline and Fall of Moderation in War (London, Hodder) 68.

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From 1942 onwards, the Nazi’s also began to experiment with ‘ransoming’ Jewish civilians to acquire what Heinrich Himmler (1900–45) described as ‘appreciable quantities of foreign currency’.370 This was in addition to a series of five exchanges whereby Jewish internees were traded for German internees in some of the Allied countries between 1941 and 1945. Adolf Eichmann (1906–62), also attempted the ‘sale’ of one million Jews in exchange for 10,000 trucks, 200 tons of tea, 800 tons of coffee, two million bars of soap, and an unspecified amount of tungsten (required for armourpiercing shells). The Americans refused such a deal, but a less ambitious deal was agreed whereby 1,685 Jews were allowed to travel to Switzerland on a special train with seats at US$1,000 each.371 As such acts of reprisal, hostage-taking, ransom and collective responsibility came to the attention of the Allies, both Winston Churchill and Franklin D Roosevelt (1882–1945) expressed their concerns. Churchill strongly objected, arguing that: ‘Civilised peoples long ago adopted the basic principle that no man should be punished for the deed of another.’ Roosevelt added: ‘Frightfulness can never bring peace to Europe. It only sows the seeds of hatred which will one day bring fearful retribution.’372 With such concern, it was no surprise that the topics of reprisals against civilians, hostage-taking and collective responsibility were dealt with comprehensively at the Nuremberg trials. C.  Killing Civilians in the East

The harsh treatment of civilians under occupation by Japanese forces was a strong source of concern and one that featured at the Tokyo trials after the war.373 In China, even before the Japanese launched their ‘Three All’ offensive, explicitly named for its purpose to ‘Kill All, Burn All, Destroy All’, they were renowned for their atrocities. For example, during the sack of Nanking in 1937, according to the Tokyo War Crimes Tribunal, an estimated 260,000 civilians died. These people were only one subset of a possible two million civilians who were killed by the Japanese military in China. In the Philippines, records suggest somewhere 89,000 and 131,000 Filipino civilians had been killed during the occupation. Similar statistics followed the Japanese occupations in Singapore, Malaya, Burma, French Indochina and the Dutch East Indies. For example, of the 130,000 Europeans interned in the Dutch East Indies, almost all civilians, 30,000 died, including 4,500 women and 2,300 children.374

  Himmler, in Shephard, B (2006) After Daybreak: The Liberation of Belsen (London, Pimlico) 11.   Miller, D (2008) Mercy Ship. The Untold Story of Prisoner of War Exchanges (NYC, Continuum) 4. 372   Baker, N (2008) Human Smoke (London, Simon & Schuster) 418; Miller, D (2008) Mercy Ship. The Untold Story of Prisoner of War Exchanges (NYC, Continuum) 37. 373   UN War Crimes Commission: Law Reports of the Trials of War Criminals, The Trial of Yamamoto Chusaburo, Case No 20 (1948, London, HMSO). Vol III. 76; See Maga, T (2000) Judgement at Tokyo (Kentucky University Press) 108–09. 374   Chang, I (1997) The Rape of Nanking (Sydney, Penguin) 46–47, 82–87, 100–101; Hastings, M (2008) Nemesis: The Battle for Japan (London, Harper) 226, 253–55, 258, 375; Ferguson, N (2006) The War of the World (London, Allen Lane) 476–79; Rummel, R (1996) Death by Government (London, Transaction) 146. Note, Associated Press ‘Rape of Nanking Downplayed’ New Zealand Herald (21 June 2007) B2; MacArthur, B (2005) Surviving the Sword: Prisoners of the Japanese (London, Time) 30; Rummel, R (1996) Death by Government (London, Transaction) 147–48; Brackman, A (1990) The Other Nuremberg: The Tokyo War Crimes Trials (Glascow, Fontana) 227, 267–69. 370 371

172  Occupation D.  The Holocaust in the West

Adolf Hitler did not see individuals. He saw race and national identity. He adopted the powerful image of the German nation as a human body which was sick and could only be cured by removing the ‘virus’, ‘plague’ or ‘disease’ of certain groups who were ‘parasitic’ on the German body. The group he feared most was the Jews. Jews inhabited Hitler’s mind. He believed they were the absolute source of all evil, misfortune and tragedy. He suggested in his book Mein Kempf, that if between 12,000 and 15,000 ‘Hebrew corrupters of the people’ had been held under poison gas at the start of the First World War, then ‘the sacrifice of millions at the front wound not have been in vain’ Elsewhere, he suggests that the ‘international poisoners [that is the Jewish people should be] exterminated’.375 From such a background, it was no surprise that from the first moment the Nazis came to power they instituted discriminatory measures against these people. In 1933 most Jews were removed from civil service. In 1935, by the Nuremberg Laws, they lost their citizenship rights and were forbidden to inter-marry with Aryans. In 1938, a Nazi instigated pogrom was launched on Jewish communities, and it was made absolutely clear that all Germany’s Jews would have to emigrate. This policy of emigration was, however, not facilitated by other countries who were reluctant to open their borders to expelled German nationals. Even Mohandas Gandhi (1869–1948) disliked this idea and when it was discussed at the inter-governmental Evian conference in 1938, nothing of substance was concluded to help facilitate the exit of German Jews from Europe. Hitler, building on such a failure, warned on 30 January 1939: If the international Jewish financiers inside and outside of Europe should again succeed in plunging the nations into world war . . . the result will be, not the Bolshevization of the earth, and thus the victory of Jewry, but the annihilation of the Jewish race throughout Europe.376

Hitler was forced to bide his time and search for another solution to the ‘Jewish problem’, which he did until the time of the invasion of the Soviet Union in June 1941. It appears that at this point, Hitler turned to a policy of genocide, although the exact timing of when this occurred is disputed. What is not in dispute is that by August 1941, mobile killing squads, SS Einsatzgruppen (‘Special Task Forces’ designed to deal with ‘hostile elements’) were killing all Jews who came within their grasp. However, this policy did not begin with the Jews. The mass murder of civilians had begun with the Polish people some 20 months earlier. The first instance of mass murder by gas appears to have occurred in the middle of November 1939, at a psychiatric hospital near Poznan, in Poland where 1,000 people, including 78 children were killed with carbon monoxide. This act was supplemented with the arrival of five Einsatzgruppen groups, who were sent into Poland within one month of occupation and summarily executed between 16,000 and 20,000 members of the aristocracy, the professions, intelligentsia and clergy. By the end of 1940, the total number of victims had reached 50,000. By the end of the war, a quarter of the Polish intelligentsia had been killed, including 40   For a discussion of these passages, see Kershaw, I (2008) Hitler (London, Allen) 149–50, 467.   Laqueur, W (ed) (2001) The Holocaust Encyclopedia (New Haven, Yale University Press) 189. Other figures in this paragraph come from Laqueur, at 174–75; Baker, N (2008) Human Smoke (London, Simon & Schuster) 267; Kershaw, I (2008) Hitler (London, Allen) 40–41, 91–93, 149–50, 286–88, 468, 574–75, 678– 91. 375 376

The Second World War 173

per cent of university professors, 56 per cent of lawyers, 15 per cent of school teachers and 18 per cent of the country’s Catholic priests. The policy, as revealed at Nuremberg, was of: ‘The extermination measures directed particularly against the Polish intelligentsia, the nobility, the clergy, and in fact all elements which could be regarded as leaders of national resistance’.377 Very similar thinking, but focused on the Jews, followed the invasion into Russia. At the end of September 1941 outside Kiev, nearly 33,771 Jews were killed by machine gunning carried out by the SS with the help of local Ukrainian militia. In time, these ‘open-air’ killings within all of the countries under Nazi sway, would claim, perhaps, one million Jewish non-combatants. By this point, the overlap between killing partisans and the holocaust was complete, or as a local commander reported to Hitler: ‘Where there’s a partisan, there’s a Jew, and where there’s a Jew, there’s a partisan’.378 News of such actions soon leaked out and Churchill classified the Nazis as: ‘A monstrous tyranny, never surpassed in the dark, lamentable catalogue of human crime.’379 Churchill could be confident in these statements for as early as 24 August 1941, after the German radio code had been broken, the British became aware of practices in occupied Europe which Churchill labelled as ‘a crime without a name’ when he explained to the British public that: ‘Scores of thousands– – literally, scores of thousands – of executions in cold blood are being perpetuated by the German police troops.’380 At the time, it was known by the Nazis, obliquely, as ‘The Final Solution’. It was explained at Nuremburg that this meant: ‘The biological annihilation of the Jewish race in the Eastern Territories’.381 Exterminations under the Final Solution halted in October 1944, when Himmler ordered all of the extermination camps to be destroyed before they could be liberated by the Allied forces. Posterity identifies the acts from this period as ‘The Holocaust’. The word ‘holocaust’ comes from the Greek hólos, (whole) and kaustós, (burnt). The term is generally used to describe the genocide of approximately five to six million European Jews during the Second World War through a programme of planned statesponsored extermination by Nazi Germany. The deaths of Jewish people were supplemented by the systematic murder of millions of people in other groups, including, approximately, some 260,000 Gypsies, 10,500,000 Slavs, 220,000 homosexuals, as well as 170,000–200,000 disabled Germans (before Hitler halted the killing of disabled Germans in the middle of 1941). The victims of the Holocaust were a combination of German citizens and citizens of other countries which Germany occupied during the course of the war. For example, inter alia, some 35.9 per cent of all Austrian Jews (65,459 people) met their deaths. Only six per cent of Baltic Jews were alive when the war ended. Approximately 800,000 Jews from Belorussia were killed, 700,000 from the Ukraine, 564,000 from Hungary, 375,000 from Romania and 80,000 Jews from 377   Testimony of Lahousen in Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 52; Ferguson, N (2006) The War of the World (London, Allen Lane) 399; Burleigh, M (2010) Moral Combat. A History of World War II (London, Harper) 142. Note also the attacks on German civilians by Poles before the war broke out. See de Zayas, A (1989) The Wehrmacht War Crimes Bureau, 1939–1945 (Nebraska, Nebraska University Press) 140–42. 378   Local commander noted in Kershaw, I (2008) Hitler (London, Allen) 673. 379   Churchill, W (1957) Great War Speeches (London, Transworld) 12. 380   Churchill, W (1957) Great War Speeches (London, Transworld) 122. 381   Testimony of Wisliceny in Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 82. Also, Kershaw, I (2008) Hitler (London, Allen) 690–99.

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France. Taken collectively, the Nazi genocides likely cost the lives of between 11 and 17 million human beings. These numbers could have been even greater had some of the last orders of the war been carried out. That is, on 14 April 1945, Heinrich Himmler ordered: ‘No prisoners shall be allowed to fall into the hands of the enemy alive. Prisoners have behaved barbarously to the civilian population at Buchenwald.’382 Similarly, Hitler had ordered (but was also defied): ‘To let no camp inmate in the southern half of Germany fall into enemy hands alive.’383 (i)  The Camps

As soon as the National Socialists came to power, they began to round up their enemies and put them into camps which became known as concentration camps. The first of these camps, Dachau, was opened in March 1933. These camps, which were administered by the SS, held all forms of opponents to the regime. Although conditions were brutal and over one million people died in these camps, the ultimate aim was not to murder the inmates. They were penal institutions with an economic function, especially during the war. Prisoners were cheap labour and were used in many branches of industry. At its peak in 1944, the concentration camp network consisted of over 500 camps, with over 300 in Germany. This diversity of locations was due to the fact that those to be exploited were brought to camps from all over occupied Europe. For example, approximately 76,000 Jews were deported from France, of whom only 2,500 survived the war. In the East, massacres and deportations worked hand-inhand.384 Concentration camps were exemplars of crimes against humanity where starvation, lack of adequate medical facilities, absence of sanitation, overwork and forced labour, slavery, torture and execution took place. Notable camps in this group included Dachau and Belsen, which both became hopelessly overcrowded, and in which tens of thousands of inmates would die due to the combination of factors noted above. Food was so insufficient at Belsen in the final months of the war that some of the inhabitants resorted to cannibalism. Other camps, such as that of Yanov, appear to have been operating on the verge of insanity where the commander used to strangle men, women and children with his own hands, and his guards would take bets on their ability to split 10-year old boys in half with an axe.385 Extermination camps were different to concentration camps in both administrative and functional terms. While concentration camps served as places of imprisonment 382   Himmler noted in Maguire, P (2001) Law and War: An American Story (NYC, Columbia University Press) 105. 383   Laqueur, W (ed) (2001) The Holocaust Encyclopedia (New Haven, Yale University Press) 49, 54, 65, 219, 321, 582, 600, 652; Rubinstein, W (2004) Genocide (London, Longmans) 161–65; Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 458; Totten, S (2004) Century of Genocide (London, Routledge) 161–202, 205–32; Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 83; de Zayas, A (1989) The Wehrmacht War Crimes Bureau, 1939–1945 (Nebraska, Nebraska University Press) 112. 384  Vinen, R (2006) The Unfree French: Life Under Occupation (London, Penguin) 139–44; Merridale, C (2005) Ivan’s War: The Red Army 1939–1945 (London, Faber) 116; Megargee, G (2007) War of Annihilation: Combat and Genocide on the Eastern Front, 1941 (Boulder, Rowman) 69; Beevor, A (2009) D-Day. The Battle for Normandy (London, Viking) 447. 385   UN War Crimes Commission: Law Reports of the Trials of War Criminals, The Trial of Martin Weiss, Case No 60 (1949, London, HMSO) Vol XI, 1.

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and re-education through terror, punishment and economic exploitation, as well as being training grounds for the SS, the extermination camps had only a single purpose. Testimony at Nuremberg explained how, from the middle of 1942, the execution of captive Jewish civilians in some of the occupied parts of the Soviet Union was carried out under the orders of Himmler in mobile gas vans.386 This was the first clear point that The Final Solution was coming into operation. Soon after, six death camps were established. Treblinka, Kulmhof, Sobibior and Belzec were strictly killing centres whose victims were immediately gassed upon arrival. Auschwitz-Birkenau and Majdanek were centres for both killing and slave labour. Somewhere between 2.5 and four million people were killed at Auschwitz-Birkenau. Sobibor killed 250,000 as did Belzic. Treblinka oversaw the deaths of between 750,000 and 900,000 people. Some 360,000 died at Majdanek.387 The majority of Germany’s concentration camps were not aiming at the direct delivery of death for the inmates but the extraction of their labour. The utilisation of civilian workers for the benefit of Germany, either in the occupied territories or in Germany itself, was a key goal of the Nazi war effort. As Hermann Goring (1893– 1946) stated in 1942: God knows you are not sent there to work for the welfare of the people in your charge but to get the utmost out of them so that the German people can live. This is what I expect from your exertions. This everlasting concern about foreign people must cease now, once and for all. It makes no difference to me if your people starve.388

By the end of 1941, there were 3.5 million labourers in Germany, including prisoners of war. By autumn 1944, there were 7.65 million foreign labourers of whom 1.9 were prisoner of war. These workers accounted for 25 per cent of all of those employed in the German economy. At least three million Soviet civilians were also shipped as labour to Germany. They were joined by more than 2.5 million French (with one million being prisoners of war), half a million Dutch and 150,000 Belgians. Those deported were always in addition to those forced to work for the occupying powers within their own country. For example, in the course of the war, 738,000 French civilians were forced to work on German projects in France. In most instances, the ideal of voluntary workers had been dispensed with by the middle of 1942 and laws allowed workers to be forced into employment by mechanisms such as stopping unemployment compensation unless they volunteered to go. Fritz Sauckel (1894–1946) who would round up over three million workers over the course of the war, would go even further when voluntary enlistment to work in Germany did not work and adopt methods such as surrounding cinemas or churches and scooping up hundreds of people at a time to work in the Reich. In Poland, little pretence was made that the entire area was anything more than a colony designed to serve Germany, with the entire population aged between 14 and 60 liable to forced labour by early 1943. This was in accordance with Hitler’s views that ‘the Poles were born for heavy labour’.389 All Polish universities,  See the testimony of Ohlendorf in Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 87.  Steinbacher, S (2005) Auschwitz (London, Penguin) 29, 31, 37, 86–87; Laqueur, W (ed) (2001) The Holocaust Encyclopedia (New Haven, Yale University Press) 44, 231–38, 409, 640; Totten, S (2004) Century of Genocide (London, Routledge) 129. 388   Goring noted in Russell of Liverpool (2008) The Scourge of the Swastika: A History of Nazi War Crimes 81. 389   Davies, N (2003) Rising ’44: The Battle for Warsaw (London, Pan) 95; Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 432. 386 387

176  Occupation

technical colleges, and secondary schools were closed. Similar restrictions were also imposed in Czechoslovakia. Likewise, Rosenberg, who was responsible for the recruitment of forced Soviet labour, had plans for the bringing out of Soviet children between the ages of 10 and 14 to be trained to work in the Reich. The fate of the workers depended upon their nationality and their importance to the German war effort. Some, such as the Soviet citizens, once fully utilised, ended up in concentration camps.390 This was an expected place to end up, as the provision of labour was often part and parcel of the concentration camp system. For example, the original purpose of placing Polish people in Auschwitz was to provide labour to the IG Farben factory. Of about 35,000 working camp inmates, more than 25,000 died as a result of their work for the chemicals giant.391 However, not all Nazis were ruthless on this question, preferring to protect their workers because of their utility to the Nazi economy. Albert Speer (1905–81) and Hans Frank were notable in this regard, whilst Baldor von Schirach (1907–74), who was in charge of collecting ‘lost’ children behind German lines, refused to let the 40,000 children under his care be turned into slave labour, preferring to send them back to Germany to learn trades. However, only between 2,500 and 3,000 ever arrived.392 (ii)  The Question of the Red Cross

Independent criticism of Nazi actions in this area at the time did not eventuate through the ICRC during the Second World War. Rather, the ICRC kept silent on the atrocities that they were aware were occurring. The prima facie reason for a mute response from the ICRC was that, unlike with prisoners of war, at this point in history, the ICRC had no routes of access to visit incarcerated civilians as there was no international legal instrument specifically dealing in this area until 1949. The difficulty with this is that, although the ICRC did not have a direct legal auspice in the area of civilians, in practice, it was seeking access, and moreover, in some instances, the Nazis granted it. Although the incarceration of civilians was seen as a matter of national consideration, the ICRC took the view that national Red Cross bodies (as opposed to the ICRC at the international level) would take the matter up. The problem in this context was that the German Red Cross, one of the oldest national societies in the world, was ideologically captured by the Nazis and they turned a blind eye to the excesses of their government. However, this was not the end of the matter, and prior to the Second World War, the German government, under mounting international pressure, agreed that some, but not all, concentration camps like Dachau would be opened to the ICRC for visits in 1936 and 1938. Unlike the media at the time, the ICRC was not overtly concerned with what they saw. Once the war broke, the ICRC was excluded from further visits to concentration camps. However, the problem was not their exclusion from the camps, but their failure as an organisation, unlike some spirited ICRC individuals, to act or speak out, either publicly or through high-level pressure behind closed doors, when   Merridale, C (2005) Ivan’s War: The Red Army 1939–45 (London, Faber) 253.  Allen, M (2004) Hitler’s Slave Lords: The Business of Forced Labour in Occupied Europe (Tempus) 120, 134, 156, 176–78, 182; Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan); 126, 171, 472, 492, 511; Vinen, R (2006) The Unfree French: Life Under Occupation (London, Penguin) 117, 165, 285–95. 392   Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 303–304, 437, 439, 489–504. 390 391

Examining the Killing of Civilians at Nuremburg 177

evidence of the Holocaust was becoming available. This was unlike the Allies who were speaking openly about the Holocaust by the middle of 1942. Conversely, the ICRC preferred not to upset Germany and potentially disrupt their access to prisoners of war and the responsibilities they did possess in international law rather than those which it did not. This approach may have reaped some rewards, as the following year the Nazis allowed parcels to named inmates (not a general relief) to be sent to the camps and, through their records, the ICRC was able to construct a list of more than 100,000 named concentration camp detainees to whom they sent regular parcels, although these were often not distributed at the other end.393 The ethical question concerns the weight of these parcels against the public silence that met the extermination of millions of people. The subsequent view of the ICRC was that their own guiding principles had been ‘outrageously flouted, in a total perversion of moral values that resulted in the industrialization of death’.394 The fact that some ICRC workers had been involved in dubious activities during the war, and a number of top Nazis, such as Josef Mengele (1911–79), Adolf Eichmann and Klaus Barbie (1913–91), managed to escape from Europe to Argentina by using Red Cross documents obtained by using false identity papers, did not engender international support to the ICRC over this period. Feelings ran so high over these instances that the Soviet Union went as far as demanding the outright abolition of the ICRC.395 14.  Examining the Killing of Civilians at Nuremberg

The three issues noted above, namely slave labour, reprisals and the Holocaust, were all examined at the Nuremberg trials following the Second World War. On the first topic, section B of Article 6 of the Tribunal stated there was to be individual responsibility which included, inter alia, ‘ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory’. With such a basis, the cases of, amongst others, Leopold Goeth (1908–46)396 Robert Wagner (1895–1946)397 and Joseph Buhler (1904–48)398 all turned on the illegal exploitation of foreign labour, for which these men were found guilty and sentenced. 393   Favez, J (1999) The Red Cross and the Holocaust (Cambridge, Cambridge University Press); Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 345–61, 412–55; Forsythe, D (2005) The Humanitarians: The International Committee of the Red Cross (Cambridge, Cambridge University Press) 46–50; Shephard, B (2006) After Daybreak: The Liberation of Belsen (London, Pimlico) 12, 30, 42, 47. 394   ICRC (2007) The Nazi genocide and other persecutions (Official Statement, adopted by the ICRC Assembly on 27 April 2006); Favez, J (1999) The Red Cross and the Holocaust (Cambridge, Cambridge University Press) 273–82. 395  See Bugnion, F (1995) ‘From the End of the Second World War to the Dawn of the Third Millennium: The Activities of the Red Cross During the Cold War’ IRRC 305: 207–24; Anon (1999) ‘The International Committee of the Red Cross Affirms Open Door Policy On Its Role During and After World War II’ IRRC 834: 414–15; Bugnion, F (1997) ‘ICRC Action During WWII’ IRRC 317: 156–77. 396   UN War Crimes Commission: Law Reports of the Trials of War Criminals, The Trial of Leopold Goeth, Case No 37 (1948) Vol VII (London, HMSO) 1. 397   UN War Crimes Commission: Law Reports of the Trials of War Criminals, The Trial of Robert Wagner, Case No 13 (1948) Vol III (London, HMSO) 1. 398   UN War Crimes Commission: Law Reports of the Trials of War Criminals, The Trial of Joseph Buhler, Case No 34. (1948) Vol VI (London, HMSO) 83; Steinbacher, S (2005) Auschwitz (London, Penguin) 49, 51, 61.

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Article 6, section B of the Charter also spelt out clearly that war crimes included the killing of hostages. The lineage of this concern in the Charter was from the 1943 Four Nation Declaration of the Moscow Conference, where it was promised: Germans who take part in the wholesale . . . execution of French, Dutch, Belgian, Norwegian hostages or Cretan peasants, or who have shared in slaughters inflicted on the people of Poland or in the territories of the Soviet Union . . . will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged.399

Cases on this topic at Nuremberg involved Karl Buck (1900–46),400 Ernst Flesch (1909–47),401 Frank Holstein (1901–54),402 Albert Kesselring (1885–1960),403 Oscar Hans (1894–1947),404 Wilhelm List (1880–1971)405 and the trials of Generals Mackensen and Maelzer.406 In all instances, the conclusion was the same. Namely, although reprisals were recognised as being repugnant to justice, they could be resorted to in cases of absolute necessity. The courts repeatedly came to this conclusion because, as was pointed out in the List Case, the British Manual of Military Law permitted the taking of reprisals against a civilian population as did the United States Basic Field Manual: Rules of Land Warfare. In addition, Article 50 of the Hague Regulations prohibiting collective punishment, was understood as being without prejudice of the question of reprisals. Nevertheless, the Nuremberg courts were unanimously of the view that although reprisals, hostage-taking and collective punishments may have been legal, they were still subject to restrictions. In particular, the justifying act must have been one which was a violation of the laws and usages of war and the purpose of the reprisal must be coercion to make the other belligerent adhere to the laws and usages of war in the future. Fundamentally, they must be a last resort (with death being at the extreme outer of possible reactions) carried out with due process (such as fair trials), correct authorisation, the people targeted must have some tangible link to the original act and the penalty must be proportionate to the original crime. For example, in the so-called Einsatzgruppen trial, Otto Ohlendorf (1907–51), admitted responsibility for overseeing the killing of between 60,000 and 90,000 civilians (primarily as reprisals) in the Nazi war against Communism. In coming to its judgement, the tribunal pointed out if civilians were killed for the acts of others, ‘there must at least be such close connection between these persons and these acts as to constitute a joint responsibility’. In that connection the Tribunal quoted the text of Article 50 of the Hague Regulations and recalled an instance where ‘859 out of 2,100 Jews shot in alleged reprisal for the killing 399   The Statement of Atrocities, within the 1943 Four Nation Declaration of the Moscow Conference in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 666. 400   United Nations War Crimes Commission: Law Reports of Trials of War Criminals: The Trial of Karl Buck and Ten Others Case No 29 (1947) Vol V (London, HMSO). 401   United Nations War Crimes Commission: Law Reports of Trials of War Criminals: The Trial of Ernst Flesch Case No 36 (1948) Vol VI (London, HMSO) 111. 402   UN War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of Frank Holstein Case No 46 (1949) Vol VIII (London, HMSO) 27. 403   UN War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of Albert Kesselring Case No 44 (1949) Vol VIII (London, HMSO) 3. 404   UN War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of Oscar Hans Case No 34 (1948) Vol VI (London, HMSO) 83. 405   UN War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of Wilhelm List (1949) Case No 47, Vol VIII (London, HMSO) 38. 406  UN War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of General Von Mackensen and General Maelzer Case No 43, (1949) Vol VIII (London, HMSO) 1.

Examining the Killing of Civilians at Nuremburg 179

of 21 German soldiers near Topola were taken from concentration camps in Yugoslavia, hundreds of miles away [for the execution]’. The tribunal concluded that it was ‘obvious that a flagrant violation of international law occurred and outright murder resulted’.407 The topic of the Holocaust was also dealt with at Nuremberg. This was despite the fact that there was no detailed legal instrument of international significance dealing with the protection of civilians in times of war. However, as early as 1943, the Allies had made it clear that they intended to deal with these issues. Specifically, the 1943 Four Nation Declaration of the Moscow Conference stated: There is now evidence of monstrous crimes . . . massacres and cold-blooded mass executions . . . those responsible or have taken a consenting part of the atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they be judged and punished according to the laws of these liberated countries and of free governments erected therein.408

These promises were later carried through into the Charter of the International Military Tribunal. The constitution of the body was given two specific areas to deal with the crimes at hand. In particular, Article 6, section C, was clear that crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility were, inter alia: (c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

With these two charges, and crimes against humanity in particular, most of the principal defendants at Nuremberg would be brought to account for their role in the Holocaust. Some, such as Hitler’s second in command, Hermann Goering, despite personally ordering ‘a complete solution of the Jewish question in the German sphere of influence in Europe’409 would feign a type of surprise that such of crimes occurred, and when it did occur, he felt it was ‘meaningless [in terms of helping the war effort] and did nobody any good except give Germany a bad name’. Goering also found the killing of women and children the ‘main thing that bothers me about the extermination of the Jews’.410 Some, like Hans Frank, although a ruthless anti-Semite and harsh oppressor of the Polish people, would come to express remorse for the acts he had 407   United Nations War Crimes Commission: Law Reports of Trials of War Criminals: United States v Otto Ohlendorf et al (1947) Case No 29, Vol IV (London, HMSO) 1 at 411; Gellately, R (2007) The Nuremberg Interviews (London, Pimlico) 387–92. For the same point repeated, see United Nations War Crimes Commission: Law Reports of Trials of War Criminals: The Trial of Karl Buck and Ten Others Case No 29, (1947) Vol V (London, HMSO). Also, The Trial of Ernst Flesch 111; The Trial of Frank Holstein Case No 46 (1949) Vol VIII (London, HMSO) 27; The Trial of Ernst Flesch Case No 36 (1948), Vol VI (London, HMSO) 111; The Trial of Albert Kesselring, Case No 44 (1949) Vol VIII (London, HMSO) 3; The Trial of General Von Mackensen and General Maelzer, Case No 43 (1948) Vol VIII (London, HMSO) 1, 4–5; The Trial of Wilhelm List, Case No 47 (1949) Vol VIII (London, HMSO) 38. 408   The Statement of Atrocities, within the 1943 Four Nation Declaration of the Moscow Conference in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 666. 409   Goering’s memo of 1941 in Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 75. 410   Goering in Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 258; Gellately, R (2007) The Nuremberg Interviews (London, Pimlico) 113–14, 117, 131–32.

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done,411 whilst Joachim von Ribbentrop (1893–1946) denied that he had declared that Jews ‘were either to be exterminated or sent to concentration camps’. He went on to argue that ‘the big historical issue was not that Jews had been exterminated but that Germany had really been oppressed and never been given a chance’.412 Others such as Seyss-Inquart appeared more as efficient administrators who did not object to their job of collecting the Jews in the occupied zone they oversaw and shipping them to the gas chambers (about 90,000 of Dutch Jews) Adolf Eichmann, later brought to justice in Israel in 1961, was guilty, in substance, to a very similar approach as that taken by Seyss- Inquart. Klaus Barbie was also guilty of such crimes, being responsible for, amongst others, the separation of 44 Jewish children from an orphanage in France to Auschwitz. Some were unrepentant. Rosenberg was implacable with his multiple hatreds, including that of Jewish people, whilst the more visceral Julius Streicher (1885–1946) was an unrepentant anti-Semitie who continued to call openly for the extermination of Jewish people during this trial. He was joined by Ernst Kaltenbrunner (1903–46) who was tireless in his hunting of the Jews, apparently even going further than Himmler in pursuing exterminations.413 The most significant defendant on the question of crimes against humanity at Nuremberg was Rudolf Hoess (1900–47), who had been the commander of Auschwitz.414 Hoess, who had a change of heart after being arrested, recalled Himmler telling him ‘that the Fuhrer had given the order for the final solution of the Jewish Question’.415 He then went on to outline the process of killing inmates by gassing, maltreatment and starvation. Hoess was, without doubt, guilty of genocide, admitting that Himmler had put the number of people in Auschwitz whilst under his command at 2.5 million – although Hoess thought this was ‘too high’ as none of the people exterminated were registered (only those kept for work left a record). Despite admitting to overseeing the deaths of what must have been over a million people, the court that sentenced him to death only dealt with this particular crime in passing, preferring to deal with more ‘concrete’ crimes. This was similar to the case of Amon Leopold Göeth (1908–46), the liquidator of the Cracow ghetto, who implemented the policy of intending to destroy an entire ethic group. In this case, for the first time, the topic of genocide was directly discussed, of which Göeth was no doubt guilty. The prosecution stated therein that the defendant: [C]onducted deliberate and systematic genocide, the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups, particularly Jews, Poles and Gipsies, and others.416 411  Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 215; Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 431. 412   Von Ribbentrop, in Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 181; Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 161. 413   Davidson, E (1966) The Trial of the Germans: 22 Defendants at Nuremberg (NY, Macmillan) 46, 104–105, 125–26, 143, 320–21, 465. Lipstadt, D (2011) The Eichmann Trial (NYC, Nextbook) 64, 108–17, 132–33, 136, 143–47. Finkielkraut, A (1989) Remembering in Vain: The Klaus Barbie Trial (NYC, Columbia University Press) 9–10, 22–25, 39–41, 45–47. 414   United Nations War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of Rudolf Hoess (Commandant of Auschwitz) Case No 38, (1948) Vol VII (London, HMSO) 18. 415   Hoess in Owen, J (2006) Nuremberg: Evil on Trial (Kent, Headline) 200, 202, 204; Gellately, R (2007) The Nuremberg Interviews (London, Pimlico) 298–311. 416   United Nations War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of Leopold Goeth, Case No 37(1948) Vol VII (London, HMSO) 1, 7.

Examining the Killing of Civilians at Nuremburg 181

Göeth’s methods of destruction involved acts such as the transport of 10,000 Jews to Auschwitz by rail in wagons that were without water, food or ventilation and were massively overcrowded. The result was that only 400 of the original consignment even made it alive. The Tribunal, although dealing in great length with the substance of the charge of genocide, did not use this term or make any reference to the conception of genocide. It left it to future developments, which were soon to come, and to the subsequent labours of international bodies and jurists to define the notion of this new, and already generally recognised, crime under international law. Nevertheless, the Tribunal did accept that Göeth was guilty of ‘the policy of extermination . . . directed against the Jewish and Polish nations’.417 The Trial of Josef Kramer and 44 Others (the Belsen trial)418 saw 45 defendants tried by a British war crimes court from the middle until the end of 1945. Thirty of the accused were found guilty, and of these, 12 were sentenced to death and 19 to various terms of imprisonment. The core international law involved, as elaborated upon in the various military codes, was Article 46 of the Hague Convention which, as noted above, stated ‘family honour and rights, individual life, and private property, as well as religious convictions and worship, must be respected’. The Court supplemented the Hague Convention with Article 6(c) of their Charter, namely, crimes against humanity, to cover the specific crimes of ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war’. The point about it covering any civilian population was how the judges and the prosecution managed to avoid the defendant’s argument that the laws of war with regard to occupation could not be taken to apply to Germany or their Allied citizens, such as the Jews from Hungary.419 The trial of Martin Gottfried (1905–46) (who was the Commander of the Dachau Concentration Camp,) and 39 Others420 involved charges by the prosecution that all the accused had participated in a common plan to run these camps in a manner so that the great numbers of prisoners would die or suffer severe injury. Indictments of ill-treatment and killings were introduced to show that each individual accused took a vigorous and active part in the execution of this plan. Forty officials were tried, of which 36 defendants were sentenced to death. Once more, Article 46 of Hague Convention of 1907 was brought to the forefront, as was the Prisoner of War Convention 1929 (as some of those killed were prisoners of war and not civilians) with its various requirements of humane treatment. The Court, in this instance, avoided the question of the ill-treatment of citizens of Germany, Rumania and Italy, feeling that the prosecutions would stand for the maltreatment of citizens and soldiers from the Allied side alone. Additional trials of note for concentration camp commanders, administrators and guards involved those for Mauthausen (of which the Court sentenced 58 of the defendants to death and gave the other three life sentences), Flossenburg (41 found guilty, 15 of whom were condemned to death for crimes of murder, torture, and starvation) and 417   United Nations War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of Leopold Goeth, Case No 37(1948) Vol VII (London, HMSO) 1. 418   United Nations War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of Joseph Kramer, Case No 21 (1947) Vol II (London, HMSO) 1. 419  Shephard, B (2006) After Daybreak: The Liberation of Belsen (London, Pimlico) 166–68. 420   United Nations War Crimes Commission: Law Reports of the Trials of War Criminals: The Trial of Martin Weiss, Case No 60, (1949) Vol XI (London, HMSO) 1.

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the Buchenwald trial. In the last instance, some 31 members of the staff of the Buchenwald camp were found guilty of atrocities and 22 were sentenced to death for the murder and/or ill treatment of some 43,000 inmates who had died from execution, disease, malnutrition, exhaustion, ill-treatment and physical abuse.421 15 .  The

1948

Convention on the Prevention and Punishment   of the Crime of Genocide

The 1948 Convention on Genocide was a direct reaction to the Holocaust and the difficulties that this issue caused at Nuremberg. It was, as the United Nations General Assembly recognised in 1946, a crime under international law ‘which the civilised world condemns’.422 From such unanimous international agreement, the 1948 Convention was relatively easy to conclude. Under the Convention on the Prevention and Punishment of the Crime of Genocide, the Parties, of which there were 140 in 2010, confirmed that: ‘Genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish’.423 Acts424 which are committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group must be punished, whether they are by constitutionally responsible rulers, public officials or private individuals.425 Such persons charged with genocide, shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunals as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.426 The only difficulty with such noble aims, was that the regime became subject to instant disagreement when some countries attached reservations to the Convention (largely over the question of the input of the International Court of Justice on such issues) and others, such as the United States, did not get around to ratifying the Convention until 40 years after it was concluded.427 Moreover, in practice in the decades to come, as the General Assembly would note, despite such efforts of the international community, ‘many thousands of innocent human beings continue to be victims of genocide’.428 421  Note, United Nations War Crimes Commission Law Reports of Trials of War Criminals. The Hadmar Trial, Case No 4, (1945) Vol I (London, HMSO) 47. 422   UNGA Res 96 (I). The Crime of Genocide, 1946. 423   Genocide Convention 1948, Art 1. 424   Including physical acts of genocide, conspiracy to commit, direct or incite, attempt or complicity in genocide. The acts range from killing, causing serious bodily or mental injury, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group or forcibly transferring children of the group to another group. See Art III of the Convention. 425   Genocide Convention 1948, Art IV. 426   Genocide Convention 1948, Art VI. 427  Genocide Convention Implementation Act 28 ILM (1989) 754. Note the subsequent Genocide Accountability Act 2007 of the United States to ensure that foreign nationals resident in the US could be charged with genocide. Genocide Accountability Act 47 ILM (2008) 125. For the ICJ questions surrounding this, see the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 12. Note, reservations were permissible, provided that they did not undermine the core purposes of the Convention. 428  UNGA Resolution (1999) 53/43 Fiftieth Anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide.

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16 .  The

1949

Convention (iv) Relative to the Protection of   Civilian Persons in Time of War

Following directly on from the conclusion of the Genocide Convention came the Fourth Convention from the Geneva Conferences of 1949. This Convention on the protection of civilians in times of war, was necessary, as the ICRC noted, because the absence of such protection ‘had been so cruelly felt during the last conflict’.429 The 1949 Fourth Convention was the first international instrument, ever, to focus specifically on the needs of civilians in this context. Although it had some faults, given its point in history, it was a monumental step forward in terms of progress in trying to mitigate the ravages of war from non-combatants. This was especially so since the Convention was, despite the objections of Britain and France, designed to apply to all situations, including non-international conflicts – although in true reflection of the war which had just past, it was primarily a document on warfare between States.430 In addition, it was meant to apply irrespective of whether one party to the conflict recognised it or not, whether or not the territory was occupied, or if one side denounced the Convention.431 The objective of the Convention was for the alleviation of ‘the sufferings caused by war’ to civilians.432 The general rule was agreed as: Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.433

Some of the developments in this Convention reflect what happened to civilians under Japanese occupation. For example, the protection of women, and especially women with children, was greatly enhanced.434 On the question of rape, whilst prohibiting ‘outrages upon personal dignity, in particular humiliating and degrading treatment’,435 the 1949 Convention went one step further and, although not classifying the act of rape as ‘grave breaches’ of the law, it explicitly forbade rape, enforced prostitution and/or any form of indecent assault.436 However, the majority of the Fourth Geneva Convention was more of a reflection of the Nazi practices associated with the Holocaust. For example, in addition to general rules that civilians in occupied territories are to be protected, irrespective of governmental changes or annexations of the territory if still occupied,437 Convention IV contained eight novel steps. First, whilst protected persons were free to leave an occupied territory by their own choice, unless their departure was contrary to the national interests of the State,   Conference Resolutions 1948 In ICRC (1995) The Humanitarian Endeavour (Geneva, ICRC) 169.  Specifically, it was signaled that in non-international conflicts, the minimum rule to be applied, without distinction was that persons taking no active part in hostilities shall not suffer violence to life and person, in particular murder of all kinds, mutilation or cruel treatment. Civilians 1949, Art 3. On the British objections, see Best, G (2002) War and Law Since 1945 (Oxford, Oxford University Press) 171, 172. 431   Civilians 1949, Art 2. 432   Civilians 1949, Art 13. 433   Civilians 1949, Art 27. 434   Civilians 1949, Arts 38 (5), 50, 89 and 97. 435   Civilians 1949, Art 3(c). 436   Civilians 1949, Art 27(2). 437   Civilians 1949, Art 47. 429 430

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individual or mass transfers of protected populations (including deportations) into the territory of the occupying (or other) country were prohibited.438 Second, although it was agreed that civilians under occupation could be moved, it was stipulated that this must be done humanely, that is, food, water, safety and medical attention must be adequate. As a general rule, transport must be carried out by rail and under conditions at least equal to those used for the forces of the detaining power. If, as an exceptional measure, such removals have to be effected on foot, they may not take place unless the internees are in a fit state of health, and may not in any case expose them to excessive fatigue. Notification of location and consent to share this information with the outside world is mandatory. Families should not be separated and people should be kept in their same social groupings if possible.439 The third conclusion of importance from 1949 had to do with the agreement that civilians in occupied territories could be ‘compelled’ to do work for the Occupying Forces. However, it was added that the work must be absolutely necessary, the person must be over 18 and safe whilst doing the work and must be equitably remunerated. The work can only be done to satisfy the ‘needs of the army of occupation’ which are not directly military-related such as the ‘feeding, sheltering, clothing, transport and health of human beings and which is not directly related to the conduct of military operations’.440 Fourth, clear restrictions on internment were set down. That is, although it was agreed that citizens of the occupied State may be interned if necessary, they cannot be interned simply because of their nationality. They cannot be transferred to countries which are not a Party to the Convention nor to Parties which are not fulfilling their obligations under it. If they are taken to a place of internment, amongst other concerns, it must be safe and meet minimum standards in terms of hygiene, warmth, lighting and space. It must also be safe from the dangers of war and be clearly marked so as to be visible from the air, and such information must be conveyed to the other side. Shelters from military attack are obligatory, as is adequate food, water, clothing and medical treatment sufficient to keep them in a good state of health, comparable to the general population. Every serious injury or death of an internee must be immediately followed by an official enquiry by the detaining power. The outcome of this shall be forwarded to the other side, and if someone is found criminally guilty in these deaths, they must be prosecuted.441 Although the Convention recognised that all such camps had to have the authority to deal with troublemakers, it was made clear that all rules must be publicised, punishments should be consistent with national standards and due process and natural justice considerations apply at all times. If a person is found guilty of an offence, cruel or inhuman penalties were forbidden, such as imprisonment in premises without daylight or punishment lasting beyond 30 days. Basic housing, health and safety standards were deemed non-negotiable for all crimes, including attempted escape.442 In addition, punishments shall:

  Civilians 1949 Arts 31, 35–36, 38–39.   Civilians 1949, Arts 78, 80–82, 127–128. 440   Civilians 1949, Arts 39, 40–42, 51, 52 and 96. 441   Civilians 1949, Arts 43–45, 89 and 131. 442   Civilians 1949, Arts 99, 116, 119, 120, 123–125. 438 439

The 1949 Convention (IV) 185 [I]n no circumstances include regulations imposing on internees any physical exertion dangerous to their health or involving physical or moral victimization. Identification by tattooing or imprinting signs or markings on the body, is prohibited. Prolonged standing and roll-calls, punishment drill, military drill and manoeuvres, or the reduction of food rations, are prohibited.443

Finally, interned people should be released as soon as possible once the reasons which necessitated their internment cease to exist, or sooner, with particular classes of people given priority such as children, pregnant women and mothers with infants and young children, the wounded and sick, and internees who have been detained for a long time.444 In time, these rules on internment and legal process were supplemented by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights445 and Security Council resolutions expressing concern where trials, such as those in apartheid-led South Africa and Namibia were: ‘flagrantly affronting the conscience of mankind’.446 The fifth, and somewhat fundamental step, involved the agreement that civilians under general occupation or interned are not allowed to become invisible. Once a civilian is interned (or transferred while interned) the detaining power must notify the protecting power of their status. The ability of the civilian to communicate with the outside world is uppermost. In addition, the internee must be able to contact directly their family and the Central Agency informing them of this. Internees are allowed to communicate with the outside world and receive parcels (which can be inspected to ensure they do not contain contraband) either individually or as a form of collective relief.447 Collective relief could be provided, subject to the security needs of the occupying power, and be provided by organisations assisting the protected persons.448 Representatives or delegates of the protecting powers must have permission to go to all places where protected persons are, particularly places of internment, detention and work, unless imperative military necessity prohibits such visits. The delegates of the ICRC were also given these prerogatives, as well as the right to offer their services to the Parties of the conflict.449 The ICRC was also meant, as appropriate, to act as a central information agency for the purpose of collecting and transmitting information   Civilians 1949, Art 100.   Civilians 1949, Arts 132–35. 445   Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 at 71 (1948), Arts 6, 9, 11 . For the International Covenant, see UNGA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966), 999 UNTS 171, Arts 9 and 14. Note also, the Basic Principles on the Role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990, UN Doc A/CONF 144/28/Rev 1 at 118. Guidelines on the Role of Prosecutors, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990, UN Doc A/CONF144/28/Rev 1 at 189. Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August –6 September 1985, UN Doc A/CONF121/22/Rev 1 at 59. 446  S/RES/253 (1968, May 29); S/RES/190 (1964, June 9); S/RES/191 (1964, June 18); S/RES/245 (1968, Jan 25); S/RES/246 (1968, Mar 14); S/RES/ 277 (1970, Mar 18). S/RES/ 311 (1972, Feb 4); S/ RES/ 392 (1976, June 19); S/RES/417 (1977, Oct31); S/RES/556 (1984, Oct 23); S/RES/385 (1976, Jan 30); S/RES/503 (1982, Apr 9); S/RES/525 (1982, Dec 7); S/RES/533 (1983, June 7); S/RES/547 (1984, Jan 13); S/RES/610 (1988, Mar 16); S/RES/615 (1988, June 17). 447   Civilians 1949, Arts 25, 102–104 and 105–113. For the draft regulations concerning collective relief, see Annex II. 448   Civilians 1949, Art 142. 449   Civilians 1949, Arts 3 and 143. 443 444

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(including, transfers, releases, repatriations, escapes, admittances to hospitals, births and deaths) in respect of the protected persons who were in the power of the occupying force.450 The sixth improvement involved the agreement of each Party to the Convention that they would publicise the new regime and each provide effective penal sanctions to assist compliance with it. In addition to the creation of mechanisms to examine breaches of the Convention during a conflict,451 it was agreed that each was under an obligation to apprehend any such person who committed any ‘grave breaches’ of it. In accordance with some of the first United Nations General Assembly resolutions, it was further agreed that, irrespective of nationality, people who breach the Convention must be brought before their own courts – or those of another Contracting Party, providing a case can be made out.452 It was specified that the ‘grave breaches’ for Convention IV were: Wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.453

The seventh novel step under Convention IV dealt with the topic of penalties, collective and otherwise. The Parties agreed that although existing penal laws and the judiciary are prima facie, meant to be kept in place, the occupying power may alter these454 or act otherwise to ‘maintain the orderly government of the territory, and to ensure the security of the Occupying Power’.455 If people are found to breach such rules, they may be dealt with by ‘non-political military courts’456 which can impose penalties that must be proportionate to the offence.457 Offences against the occupying power which do not constitute an attempt on the life or limb of members of the occupying forces or administration, a grave collective danger, or serious damage to the property of the occupying forces or administration or the installations used by them, shall only be liable to internment or simple imprisonment for reasonable periods.458 Following strong advocacy from the United States and the United Kingdom, the death penalty was retained as an option for Occupying Forces.459 However, it was agreed it may only be imposed on a protected person (over 18) in cases where the person is guilty of espionage, serious acts of sabotage against the military installations or for intentional offences which have caused the death of one or more persons (provided that such   Civilians 1949, Arts 136, 138–140.   Civilians 1949, Art 149. 452   Civilians 1949, Art 148. Also, UNGA Res 3 (I) (1946). Note also the subsequent UNGA Res 3074 (XXVIII). Principles of International Cooperation [for] . . . Persons Guilty of War Crimes and Crimes Against Humanity 1973. 453   Civilians 1949, Art 147. 454   Civilians 1949, Art 64. 455   Civilians 1949, Art 64. 456   Civilians 1949, Art 66. 457   Civilians 1949, Art 67. 458   Civilians 1949, Arts 68 and 70. 459   Best, G (2002) War and Law Since 1945 (Oxford, Oxford University Press) 126. 450 451

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offences were punishable by death under the law of the occupied territory in force before the occupation began). At all points, when examining such acts in legal trials, high standards of due process and natural justice must be followed.460 Finally, and fundamentally, in a paradigm-changing moment, Article 34 of the Fourth Geneva Convention of 1949 prohibited the taking of hostages in times of warfare between Parties to the Convention and in armed conflicts not of an international character,461 whilst Article 33 added: ‘No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation . . . are prohibited. Reprisals against protected persons and their property are prohibited.’462 17.  Between

1949

and

1977

The decades between the conclusion of the 1949 Geneva Conventions and the 1977 additions were not particularly enlightened when it came to considerations of the protection of civilians in times of war and in times of civil war in particular. In all of these settings, the issues of reprisals, collective punishments, genocide and rape continued to appear. Moreover, in all of the conflicts that are listed within this period, no-one was ever brought to justice within an international setting for the violation of crimes which were, by this point, meant to be of international concern. The placement or ‘resettlement’ of civilians into ‘protection areas’ were a clear practice in the civil wars where attempts were made to isolate locals from insurgents, and the benefits of isolation were meant to be more attractive than the alternatives. As such, the pursuit of the ‘hearts and minds’ of the locals (a phrase coined the Governor of Malaysia, Gerald Templer (1898–79) was practiced in the conflicts of Angola (some 3,000 villages), Algeria (1,840 villages) and with some success in Malaysia (509 villages), and later in Vietnam, where the attempt to provide secure areas for over eight million civilians within secure and desirable ‘hamlets’ ultimately failed.463 The practice was also utilised by the British in the suppression of the Mau Mau uprising in Kenya from 1952 to 1960, although in the case of Kenya, the practice appears to have been much more punitive, with a death toll of possibly thousands due to what may have been neglect, forced labour, inadequate food and even torture.464 Although in the case of Kenya the British may have been close to replicating some of the practices they fought against in the Second World War, it was in China that the practices of the Soviet-style gulags continued unabatedly. However, before the Communists won the war, the Nationalists were known to have exterminated large sections of civilian populations in areas where sympathy with the Communists was high. According to one estimate, over one million peasants were killed in such operations. When the civil war was over, the communists replied in kind. While estimates are   Civilians 1949, Arts 68, 71–77.   Civilians 1949, Art 3(1)(b). 462  Note the taking of hostages was recognised as a grave breach of the Convention, Art 147. 463  Slim, H (2008) Killing Civilians (NYC, Columbia University Press) 80; Beckett, I (2001) Modern Insurgencies and Counter Insurgencies (London, Routledge) 101, 137, 164. 464  Elkins, C (2005) Britain’s Gulag. The Brutal End of Empire in Kenya (London, Pimlico) 56, 117, 129–30, 203, 241, 312; McGreal, C‘Mau Mau Veterans To Sue Britain Over Illegal Torture and Killings in Kenya’ The Guardian (6 October 2006) 17. 460 461

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speculative, it is believed that there were between six and 10 million deaths as a direct result of Communist actions, including hundreds of thousands of Tibetans. In addition, perhaps over 10 million ‘counter-revolutionaries’ expired within the Chinese prison system which included over 1,000 large-scale camps as well as innumerable detention centres. Such great numbers have been needed to facilitate the estimated 50 million plus people who have been incarcerated at various times, before the system started to improve in the 1990s. Tibet alone had 166 known camps, in which as many as one in 10 Tibetans were incarcerated during the 1950s and 1960s. The only positive difference from this Chinese system compared to that of its North Korean counterpart is that something is known of the Chinese one. In the case of North Korea, a nearcloistered State replete with a highly effective security, prison and espionage service may have been responsible for the deaths of over one million of its own citizens.465 The only other State which may have been close to replicating, if not exceeding, such practices in this period was Indonesia. During the six-month period from October 1965 to March 1966 approximately 50,000 Indonesian citizens were killed in a series of massacres by their own security forces. Most of the victims were members of the Indonesian Communist Party, executed because of their political loyalties. They were not executed as a process of reprisals or collective punishments, as at this point, there was no civil war in Indonesia. This was unlike the Indonesian practices following their occupation of East Timor, between 1975 and 1979, where collective punishments, reprisals, hostage-taking and rape all appear as consistent patterns.466 The topic of reprisals after the Second World War was equally bleak. The first example of this involved the French, who adopted a heavy-handed approach to reprisals against civilians in their war in Indo-China467 and Algeria. In the first instance, the ending of reprisals was an important part of the 1954 Geneva Agreements, by which the signatories promised: [T]he competent representative authorities of the Northern and Southern zones of Viet Nam, as well as the authorities of Laos and Cambodia, must not permit any individual or collective reprisals against persons who have collaborated in any way with one of the parties during the war, or against members of such persons’ families.468

Reprisals in the second instance of Algeria, began on the same day that Germany surrendered in the Second World War. This day, 8 May, saw a massacre around the Algerian market town of Setif. The reprisals by the French police and military against the Muslim Algerians who had attacked and killed 103 Europeans, mostly civilians, resulted in summary executions and the aerial bombing of some villages which killed somewhere between 1,000 and 6,000 people. In years to come, although the French authorities explicitly forbade indiscriminate reprisals, the restrictions were avoided by commanders on the ground. This was especially so after the insurgents targeted the 465   Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 463–64, 483, 497, 498, 507, 540–42, 545, 558, 564; Rummel, R (1996) Death by Government (London, Transaction) 101, 105, 122, 128. 466   Commission for Reception, Truth and Reconciliation Timor-Leste (2005) Chega! (CRTP, Faber) 108, 116–24; Totten, S (2004) Century of Genocide (London, Routledge) 233–59, 275; Human Rights Watch (1991) East Timor: The November 12 Massacre and Its Aftermath (NYC, HRW) 6–14, 18–23. 467   Windrow, M (2005) The Last Valley (London, Cassell) 101. 468   Geneva Agreements 1954, Art 9 in Axelrod, A (ed) (2001) Encyclopedia of Historical Treaties and Alliances, Vol II (NYC, Facts on File) 731.

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military or their associated communities. By the second half of 1961 it was estimated that there were an average of 3,000 acts of terror per month, as executions, torture, reprisals, assassinations and bombs attacks against civilians, in both France and Algeria, became the norm as civilians became the primary, not the supplemental, target. Such attacks were responded to with utmost brutality. For example, after one of their sergeant majors was knifed in the street, an entire company descended into the Arab quarter of Algiers, and within 15 minutes, 64 people, mostly men, were slaughtered by machine gun fire or bayonet. The military were also known to attack villages on the other side of the border with other countries if they were believed to be helping the insurrection. The leaders of the Muslim insurgency replied in kind and declared that a total of 100 French and colonists would die for each member of their troops captured and executed by the French. Although the general rule was believed to be that any European male between the ages of 18 and 54 was a legitimate target (irrespective of whether they were in the military or not), many children, women and elderly were also victims. The total civilians in Algeria, on both sides, who were killed by such reprisals may have been as high as 50,000 and possibly higher as the conflict degenerated into a series of tit-for-tat actions.469 This tit-for-tat approach, whereby civilians became the primary victims of the conflict in a spiral of collective punishments and reprisals became standard practice in many of the insurgency wars in the decades that followed. However, this was not always the case. Some conflicts, such as with the Red Army Factions in Europe, had the terrorists selecting targets that were nearly always military or the police, and collateral damage of ‘common’ civilians was the exception, not the rule. Nevertheless, they did also shoot at, bomb and kidnap members of Parliament, leading industrialists, diplomats and members of the judiciary. The Basque armed separatist group, ETA (Euskadi Ta Askatasuna) would pursue very similar tactics between the early 1960s and the twenty-first century, targetting ‘functionaries’ of the Spanish State, such as police officers, members of the judiciary, industrialists, journalists and members of the military. Indeed, more senior army officers (including more than a dozen generals) died fighting ETA than in any other Spanish war . However, in their attempts to kidnap or assassinate such people, dozens of civilians were killed in the crossfire. This was especially so as ETA began to target tourist resorts and civilian areas, including one attack which killed 21 civilians in 1987 when a bomb exploded in a shopping complex in Barcelona.470 In other tit-for-tat conflicts that emerged in the 1970s, non-prominent civilians being killed or punished was much more common. For example, the Irish Republican Army that emerged in the 1960s attacked soldiers, police officers and civilians. The armed Protestant groups, such as the Ulster Volunteer Force did the same, killing people because they thought they were linked to the IRA or because they were Catholic. 469   Horne, A (2006) A Savage War of Peace: Algeria 1954–1962 (NYC, New York Review Books) 84, 86, 88, 93–94, 113–15, 121–22, 124, 171–73, 183, 187, 192, 208–11, 269–70, 291, 411, 413, 430–32, 441, 470, 486, 488–89, 495–97, 503, 526, 530, 550; Moran, D (2001) Wars of National Liberation (London, Cassell) 104, 106; Harclerode, P (2002) Fighting Dirty (London, Cassell) 223, 230–33, 238–39, 243, 244, 262; Knightley, P (1975) The First Casualty (London, Pan) 359–64; Corbett, R (1986) Guerrilla Warfare (London, Orbis) 73–75; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 665–75. 470   Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 198–201, 205–14, 218–21, 241–43, 246, 248–52, 262–63, 280–83, 285–86.

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The IRA responded in kind. By 1971, the deaths of civilians (92) were much greater than those of the IRA (23) or British soldiers (44). This figure escalated in 1972 to over 500 people. Assassination attempts were mixed with enforced disappearances and bombing campaigns which became increasingly indiscriminate. This was especially so after opposing informal belligerents such as the Ulster Defence Force started exploding bombs and shooting Catholic civilians in reprisal operations. The IRA response was more targeted assassinations, collateral damage, reprisals and counter-reprisals. These ranged from the 22 IRA bombs in Belfast city centre in 1972 (which killed nine civilians) through to the attacks that spread from Northern Ireland to both the Republic of Ireland and England. In the first instance, 22 people died in Dublin when three car bombs exploded at the end of 1974. These coincided with the two bombs that exploded in Birmingham in late 1974 killing 19 people and injuring 162. By the mid 1970s, whilst fighting both the British army and loyalist terrorist groups, the random killing of civilians was common. For example, in 1976 the IRA executed 10 non-Catholic workers from a textile plant. By the end of that year loyalist terrorists had killed nearly 250 people, most of them innocent non-combatants of a different religious faith, whilst 150 Protestants, unconnected to the Troubles, met a similar end. By 1990 the IRA had degenerated into the practice of forcing non-combatants to deliver bombs to the IRA’s enemy, which would explode, killing both. Even when peace was agreed between the primary belligerents at the end of the twentieth century, breakaway groups continued to target, either intentionally or recklessly, non-­combatants. Thus, in the middle of 1998, 29 civilians were killed and more than 300 were injured when a bomb demolished the centre of Omagh.471 Very similar practices occurred after the Second World War in Latin America between 1945 and 1977, in Argentina (with 400 bombs during one night in September 1974 alone), Columbia (41 bombs in five cities in September 1963 alone) and Venezuaela. Hostage-taking was also popular for insurgents during this period with the Cuban Revolution, and the insurgencies in Argentina, Brazil, Guatemala, Nicaragua and Uruguay472 Even the African National Congress saw a terror campaign against white civilians in the early 1980s which involved the direct killing of non-combatants via both bombs and landmines.473 Despite such unrelenting practices of targeting civilians and then directing reprisals against them, it would be wrong to suggest that the international community agreed to such acts. This was especially so when the reprisals and/or collective punishments were carried out by a State actor. The United States publicly condemned French reprisals in 1964,474 whilst the Security Council came to condemn them explicitly in the cases of Britain and Israel. In the first case, following the British reprisal air attack on Yemen following their assistance with insurgents in Aden, the Security Council ‘condemned reprisals as incompatible with the purposes and principles of the United Nations’.475 471   Moloney, E (2002) A Secret History of the IRA (London, Penguin) 22, 97, 100–01, 103, 111, 117, 129– 30, 145, 146, 175, 185, 320–22, 348; Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 291–309, 329–34, 338, 345. 472  Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900–2001, Vol II (NYC, Brassey) 190–91, 224, 256–57, 268–71, 283–84, 291, 293, 295–98, 341. 473   Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 146–47. 474   Hitchens, C (2001) The Trial of Henry Kissinger (Melbourne, Verso) 34. 475  S/RES/188 (1964, Apr 9).

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In the second case, the Security Council has warned Israel, repeatedly, that ‘actions of military reprisal cannot be tolerated’.476 These warnings have been supplemented by a long and consistent demand by the Security Council (and the General Assembly) that Israel recognise that the Fourth Geneva Convention of 1949 has a direct applicability in the wars it has with some of its neighbours, but especially with the territory that Israel acquired following its 1967 war.477 This is particularly so with regard to the protection of civilians in the occupied zone, by not deporting non-Israeli citizens, and not settling parts of the Israeli population in the occupied regions. Such settlement actions have been condemned by the Security Council ‘[A]s a flagrant violation of the Geneva Convention relative to the Protection of Civilian Persons in Times of War’.478 Israel has not been greatly deterred by such warnings and has long argued that the Fourth Geneva Convention does not apply in occupied zones. The General Assembly,479 the Security Council480 and the International Court of Justice481 disagree with Israel on this point. Unwilling to change its ways, Israel has continued to operate on a system which has been built, since the foundation of the State, upon collective responsibility and reprisals on the civilian populations in the occupied or neighbouring zones. For example, at the end of 1947, taking revenge for the killing of six of their fellows by the Irgun, Arab irregulars attacked and killed 39 Jews at the Haifa oil refineries. The Haganah responded in kind, attacking the village of Blad-el-Sheikh, where it killed more than 60 Arabs including women and children. Early the following year car bombs killed 77 Jews. A month later, 110 Palestinians, men, women and children, were killed in the small village of Deir Yassin with at least 25 of them executed in cold blood. Soon afterwards, 77 Jewish medical staff paid the price of the attack on Deir Yassin with their lives. The following year, two irregular Jewish groups, Stern and Irgun, inter alia, blew up hotels which housed British targets causing large-scale collateral damage; assassinated the United Nations envoy (Count Folke Bernadotte 1895– 1948) and associated staff; and executed captured British soldiers as reprisals for the execution of captured Israeli insurgents.482 By the early 1950s the Israeli actions in this area had solidified into their ‘doctrine of retaliatory action’. Retaliatory action falls somewhere between unofficial reprisals and  S/RES/228 (1966, Nov 25); S/RES/270 (1969, Aug 26).  S/RES/347 (1974, Apr 24). 478  S/RES/465 (1980, Mar 1). For the other resolutions on this question, see S/RES/468 (1980, May 8); S/RES/469 (1980, May 20); S/RES/607 (1988, Jan 5); S/RES/608 (1988, Jan 14); S/RES/636 (1989, July 6); S/RES/641 (1989, Aug 30); S/RES/673 (1990, Oct 24); S/RES/681 (1990, Dec 20); S/RES/694 (1991, May 24); S/RES/726 (1992, Jan 6); S/RES/799 (1992, Dec 18); Supreme Court Judgment in Cases Concerning Deportation Orders; 29 ILM (1990); 139; S/RES/1435 (2002, Sept 24); S/RES/1397 (2002, Mar 12); S/RES/1405 (2002, Apr 19). 479  See UNGA A/RES/2252 (ES-V). July 5, 1967. Also 6 ILM (1967) 833. This has been repeated dozens of times subsequently. See for example, 60/105 (2006) and 58/97 (2003). 480  S/RES/271 (1969, Sept 15) S/RES/446 (1979, Mar 22); S/RES/469 (1980, May 20); S/RES/471 (1980, June 5); S/RES/97 (1981, Dec 17); S/RES/592 (1986, Dec 8); S/RES/607 (1988, Jan 5); S/ RES/608 (1988, Jan 14); S/RES/636 (1989, July 6); S/RES/641 (1989, Aug 30); S/RES/673 (1990, Oct 24); S/RES/681 (1990, Dec 20); S/RES/694 (1991, May 24); S/RES/726 (1992, Jan 6); S/RES/799 (1992, Dec 18); S/RES/1322 (2000, Oct 7); S/RES/465 (1980, Mar 1). 481   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 131 in 43 ILM (2004) 1009 at 137. 482   Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 453–59; Sinclair, A (2003) An Anatomy of Terror (London, Macmillan) 278–81. For the Security Council concern on the assassination, see S/RES/72 (1949, Aug 11); Moorehead, C (1998) Dunant’s Dream: War, Switzerland and the History of the Red Cross (NYC, Carroll & Graf) 565. 476 477

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general collective responsibility for the crimes of others. That is, when those who commit acts of aggression against Israel cannot be found, those supporting them may be punished instead. However, it is never the intention of Israeli forces to kill innocent civilians, although the manner in which these policies are implemented often results in civilian deaths, as Israel has struck back, hard, against both the neighbouring countries or occupied zones that hosted the insurgents in the 1970s, 1980s, 1990s and in the new century. Within the occupied zones, the costs were particularly high. For example, following the first Intifada, by the summer of 1990, over 600 Palestinians had been killed by the Israeli Defence Force, including 76 children under 14, with a further 12,000 people injured. A further 10,000 were held in detention camps and prisons. On the Israeli side, 18 people had been killed, including 10 civilians, with 3,391 injured, the majority of them being soldiers.483 One of the practices most notable in the occupied territories is with regard to the destruction of civilian property, or property associated with the insurgents (such as their family homes). The flip side is that the insurgents operating against Israel are often directly targeting civilians (as in people, not their properties). This choice of target is because it was suggested that all Israeli people are legitimate targets because many of them are in the military and even if they are not, they are on occupied lands and have lost their right to civilian status. The response of the Israeli military, in conflicts such as these, has been to destroy the civilian property associated with those attacking Israel. These acts have been the subject of international criticism. For example, following the destruction of houses by Israeli authorities in the Rafah refugee camp in 2004, the Security Council called upon Israel to ‘respect its obligations under international humanitarian law, and insists, in particular, on its obligation not to undertake demolition of homes contrary to that law’.484 Unrepentant, four years later during the so-called ‘Gaza War’ of 2008–09, Israel directly attacked military targets, police stations, government buildings and a United Nations compound in Gaza. There was also significant damage to civilian buildings which appears to have been the excessive and unnecessary destruction of civilian infrastructure as a type of collective punishment. Between 1,166 and 1,417 Palestinians and 13 Israelis were killed. More than 400,000 citizens of Gaza were left without running water, while 4,000 homes were destroyed or badly damaged, leaving tens of thousands of people homeless and 80 government buildings hit.485 The reaction of the United Nations General Assembly to this last instance was to recommend a conference of the Parties to the 1949 Geneva Conventions, with the particular purpose of examining, ‘measures to enforce the Convention in the Occupied Palestinian Territory’.486 In terms of conflicts which had an international context, attacks against civilians in times of occupation were notable in both the Korean and Vietnam Wars. In the first 483   Bregman, A (2004) Israel’s Wars. A History Since 1947 (London, Routledge) 14, 19–20, 50, 150–51, 158–78, 200, 210–233; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 506; Burleigh, M (2008) Blood and Rage. A Cultural History of Terrorism (London, Harper) 387–88. 484  S/RES/1544 (2004 May 19). 485  The Goldstone Report A/HCR12/48 at 50–54; Human Rights Watch (2010) Israel’s Unlawful Destruction of Property During Operation Cast Lead (NYC, HRW) 1–10, 14–23; Anon ‘Israel Gives Gaza Force a Legal Shield’ Herald Tribune (26 January 2009) A4; Human Rights Watch (2004) Razing Rafah (NYC, HRW) 12–23. 486   UNGA Resolution (2010) 64/10. Follow Up to the Report of the Fact Finding Mission on the Gaza Conflict.

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instance, when North Korean troops took Seoul in September 1950, some 14,602 civilians who were classified as political prisoners are believed to have been executed within a four-day period. Similar practices occurred in other captured cities, with perhaps up to another 10,000 civilians being massacred in later months. However, such acts were not the monopoly of the communist forces. That is, in the early days of the Korean War, the South Korean authorities, possibly with the complicity of United States officials, may have executed tens of thousands of South Korean civilians, who they believed may have been communist sympathisers.487 Similar actions involving the killing of civilians who were held in situations of occupation and who were believed to be politically dangerous by communists in the Vietnam War occurred when the Viet Cong took parts of territory during the Tet Offensive in early 1968. In the city of Hue, which was occupied for 26 days, 5,800 civilians were killed or missing by the time the communist forces left. These deaths were supplemented by what is believed to have been executions in the range of tens of thousands in the countryside, as the Viet Cong demonstrated to locals in their areas the risks of not being loyal to their goals. How many civilians fell victim to the Viet Cong in these operations is a matter of speculation, although estimates have been produced of around 37,000 murdered around a further 58,000 abducted between 1957 and 1972. The Viet Cong also seem to have been willing to try to attract reprisals upon civilians, as a way to bolster support for their campaign and undermine the moral authority of the United States and its allies.488 Whilst the Viet Cong were busy targeting enemy civilians, the United States was trying to distance itself from such acts. Most notably, during the Vietnam conflict the Viet Cong had a practice of converting hamlets into fortified areas, despite them being populated by civilians. In theory, the United States should not have penalised such individuals for being supportive or associated with the insurgents. However, in practice, it appears that the United States may have had a policy of air and ground strikes against such areas. At the macro level, this included the unofficial bombing of Cambodia and Laos. At the micro level, this involved striking hamlets in South Vietnam suspected of ‘harbouring’ Viet Cong guerrillas. These acts were, in essence, collective penalties or reprisals, in the same manner as those utilised by some of the primary belligerents in the Second World War. The use of reprisals was a clearly advocated policy within the Administration of the United States. For example, McGeorge Bundy (1919–96), the National Security advisor to president Lyndon Johnson (1908– 73) argued: In partnership with the Government of Vietnam, we should develop and exercise the option to retaliate against any Vietcong act of violence to persons or property . . . we will not use our force indiscriminately, but we can no longer sit by in the face of repeated acts of terror and violence . . . we are convinced that the political values of reprisal require a continuous operation.489 487   Chinnery, P (2000) Korean Atrocity. Forgotten War Crimes 1950–1953 (Maryland, Naval Institute Press) 3, 15, 39–41, 45, 61; Hanley, C (2008) ‘Korean Executions: The US Connection’ New Zealand Herald (9 July 2008) A17. Hastings, M (1987) The Korean War (London, Guild) 105–07. 488   Greiner, B (2010) War Without Frontiers. The USA in Vietnam (NYC, Vintage) 32–33, 34, 36, 38; Brenner, S (ed) (2006) Vietnam War Crimes (NYC, Greenhaven) 97–107; Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 570, 572. 489   Memorandum from Bundy, in Porter, G (1979) Vietnam: A History in Documents (NYC, Miridian) 295– 98.

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In theory, this policy was linked to the aerial bombardment campaigns. In practice, it also became implicit in ground warfare. On the ground, attacks were called in on areas where sniper fire had come from, even if the areas were surrounded by civilians, and these people were destroyed by ‘friendly fire’. License to destroy and annihilate also applied to the ‘Free Fire Zones’ whereby anyone left within an identified zone, after being warned to leave, was considered fair game, as they had forfeited the right to protection as in Free Fire Zones there was no distinction between combatants and noncombatants. Collectively, the death toll from such operations of the soldiers of the United States, and especially those of South Vietnam, may have been in the tens, if not hundreds, of thousands.490 However, the United States did not publicly condone such operations, and when one in particular (of which there may have been multiple), at Mai Lai occurred, the leader of the troops on the ground, Lieutenant William Calley (b 1943), was prosecuted by his own government. That is, Calley was successfully prosecuted for going into a potential enemy stronghold, and destroying all of the crops, livestock and houses in the area. In addition, women were raped (which appears to have been common in this conflict) and somewhere between 100 and 504 women, children and elderly men were killed as reprisal for believing they actively supported the Viet Cong.491 As a way to underline restraint in this area, when the 1973 Paris Peace Accords were agreed, it was stipulated that ‘reprisals by both sides’ [namely North and South Vietnam] will be banned.492 The other conflict of particular note from this period involved the war which saw Bangladesh emerge. Following the first elections by the Pakistani military in over a decade in 1970 and a vote easily won by the Bengali-based Awami League, General Yahya Khan (1917–80), head of the outgoing military regime, postponed its convening. This resulted in mass protests, of which the Pakistani army, despite the urging of the General Assembly of the United Nations, ‘that every effort be made to safeguard the lives and well-being of the civilian population in the area of conflict’ struck with force. It is estimated that at least 10,000 civilians were killed in the first three days and the death toll reached the hundreds of thousands before Pakistan finally quit the area.493 In addition, the practice of rape may have been officially approved, as the estimated number of victims, being between 200,000 and 250,000, suggests a policy that was much more than a few soldiers behaving in an unapproved manner. Despite the efforts of the Bangladeshi government to bring those accused of committing such crimes to justice, 40 years after the event, progress in this area has been very slow.494

490   Greiner, B (2010) War Without Frontiers. The USA in Vietnam (NYC, Vintage) 69–75, 97–99, 148, 155, 165–70, 176, 188–90, 194–95, 210–17, 222–28, 245–73, 287. 491   Belknap, M (2002) The Vietnam War on Trial: The My Lai Massacre and the Court Martial of Lieutenant Calley (Lawrence, University of Kansas Press 167–82; Tucker, S (1998) The Encyclopedia of the Vietnam War (Oxford, Oxford University Press) 29–30, 280–81; Brenner, S (ed) (2006) Vietnam War Crimes (NYC, Greenhaven) 46-47, 69-76, 88–92; Hitchens, C (2001) The Trial of Henry Kissinger (Melbourne, Text) 30–33; Bourke, J (2000) An Intimate History of Killing (London, Granta) 172–75, 188, 191; Bourke, J (2007) Rape. Sexual Violence History (London, Shoemaker) 365–67, 379–81; Associated Press ‘US Soldiers Massacred Villagers’ New Zealand Herald (21 October 2003) B2; Knightley, P (1975) The First Casualty (London, Pan) 395. 492  Paris Peace Agreement 1973, Art 3(c). 493   UNGA Resolution (1971) 2793 (XXVI). 494  Proclamation of Independence of Bangladesh 11 ILM (1972) 119; Totten, S (2004) Century of Genocide (London, Routledge) 233–59, 275, 295, 299–301, 315. Anon (2010) ‘Answering for History’ Economist. December 18, 50.

1977 Protocols and 1979 Hostage Convention 195 18 .  The

1977

Additional Protocols and the

1979

Hostage Convention

Against the background of all of the above conflicts, the international community negotiated new principles, in the form of two new Protocols, to be added to the Geneva Conventions. The Protocol Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) was concluded. By 2010, this Protocol with 102 articles which dealt with everything from civilians to combatants had 170 State Parties. Although not as widely adhered to as the 1949 Conventions, the Protocols reflect a ‘trend towards a similarly wide acceptance’.495 With specific regard to the further protection of civilians, Additional Protocol I emphasised the importance of treating people in the power of the occupying power humanely and without discrimination.496 Such people are to be protected against, inter alia, murder, corporal punishment, and mutilation.497 If people are arrested in relation to actions related to the armed conflict, they must be accorded basic rules of due process and justice (ranging from being tried in a language they understand, through to having all the alleged offences disclosed before trial and the right to cross-examine witnesses).498 As a general principle: To the maximum extent feasible, the Parties to the conflict shall endeavour to avoid the pronouncement of the death penalty on pregnant women or mothers having dependent infants, for an offence related to the armed conflict. The death penalty for such offences shall not be executed on such women.499

Depriving a person of such rights of a fair and regular trial was considered as a grave breach of the Protocol, as was the transfer by the occupying power of parts of its own civilian population into the territory it occupies. In clear reference to the situation in territories occupied by Israel after their 1967 war, Additional Protocol I reiterated that the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, was in violation of Article 49 of the Fourth Convention.500 The importance of a protecting power, or the Red Cross if a protecting power is not available, was also reiterated.501 The 1977 Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts began with the general prohibition ‘at any time and in any place whatsoever’ with regard to violence to the life, health and physical or mental wellbeing of persons, murder in particular.502 Thus, all persons who do not take a direct part in hostilities, whether or not their liberty has been restricted, shall in all circumstances be treated humanely.503 As a rule, civilian populations should not be subject to forced movement ‘unless the security of the civilians involved or imperative military reasons so demand’. Should such displacements have to be carried out, all possible 495   UNGA Resolution (2006) 61/30 Status of the Protocolss Additional to the Geneva Conventions of 1949. 496  Protocol I 1977, Art 75. 497  Protocol I 1977, Art 75(2). 498  Protocol I 1977, Art 75(3) and (4). 499  Protocol 1977, Art 76(4). Note, Art 6.5 of the International Convention on Civil and Political Rights. 500  Protocol I Art 85(4). 501  Protocol I 1977, Arts 5 and 81. 502  Protocol II 1977, Art 4(2). 503  Protocol II 1977, Art 4. Note, if someone is engaged in hostilities, they cannot claim the protections given if this would be prejudicial to the State. See Arts 5 and 13.

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measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.504 With regard to people whose liberty had been restricted for reasons related to the armed conflict, they shall, to the same extent as the local civilian population, be provided with food and drinking water and be afforded safeguards as regards health and hygiene and protection against the rigours of the climate and the dangers of the armed conflict. Medical help, which is consistent with general practice, must be given. Individual and collective relief was to be assured, as was their right to practice their religion. If they were ‘made’ to work, they should have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population. Families should be held together, unless the women are single, when they should be held, and supervised, separ­ately and by other women.505 In terms of penal prosecutions and punishment of criminal offences related to the armed conflict, the fundamental rule was agreed that no sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality, with clear regard to due process. Notably, the death penalty was not to be pronounced on persons who were under the age of 18 years at the time of the offence and should not be carried out on pregnant women or mothers of young children.506 With regard to relief societies and relief actions, it was agreed that: Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red Crescent, Red Lion and Sun) organizations may offer their services for the perform­ ance of their traditional functions in relation to the victims of the armed conflict. . . . If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as food-stuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.507

On the question of rape, in 1977 following the acts noted above and the general concerns of the United Nations General Assembly in this area,508 the international community prohibited ‘outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form or indecent assault’ in both international509 and non-international contexts.’510 In part, due to the practice of warfare during this period, the prohibition against reprisals against civilians was reiterated by the United Nations General Assembly,511  Protocol II 1977, Art 17.  Protocol II 1977, Art 5(1). 506  Protocol II 1977, Art 6. Some of the notable rights include that the accused shall be informed of their alleged crime without delay, they shall not be convicted of an offence except on the basis of individual penal responsibility, there shall be no retrospective liability and penalties must be commensurate with the time and gravity of the crime. Defendants are presumed innocent, and no-one shall be compelled to testify against himself or to confess guilt. 507  Protocol II Art 18. 508   UNGA Res 3318 (XXIX). Declaration on the Protection of Women and Children in Emergency and Armed Conflict. 509  Protocol I Art 75(2). 510  Protocol II Art 4(2). 511  UNGA. Res 2765 (XXV). Basic Principles for the Protection of Civilian Populations in Armed Conflict (1970). 504 505

1977 Protocols and 1979 Hostage Convention 197

and then the international community in 1977 when they added the Additional Protocols to the 1949 Geneva Conventions. Protocol I reiterated the rule that attacks against the civilian population or civilians by way of reprisals were prohibited512 as were collective punishments ‘at any time and in any place whatsoever’.513 Protocol II, dealing with non-international conflicts, iterated the same rule for collective punishments.514 Both protocols, following the direction of the ICRC,515 reiterated the prohibition on hostage-taking.516 Despite this prohibition, the problem of hostage-taking increased as the decade of the 1970s came to an end. The foremost example of this was when the revolutionary forces in Iran in 1979 overran the embassy of the United States and Ayatollah Khomeini (1900–89) told the world he would try them all for espionage, for which the penalty was death and that diplomatic immunity did not apply to spies. The Security Council was unequivocal in its condemnation of Iran in this act whereby the staff were being held as ‘hostages’ and called upon them to be both protected and released immediately.517 However, revolutionary Iran did not respond favourably to such requests. Accordingly, the matter went to the International Court of Justice, where the continued internment of such people met with the clear condemnation by the Court for failing to protect these people who were due extra special protection in international law. Their long-standing immunity was cause for concern, as the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, recognised: ‘Crimes against [such persons] . . . create a serious threat to the maintenance of normal international relations which are necessary for co-operation among States’.518 The Court found that it was a well-recognised principle that those officially working on behalf of a State are both sacrosanct and immune and should not be attacked or held as hostages. This ruling had little influence on Iran, which was found to be in breach of its obligations for not only failing to stop this event, but actually condoning it, and making clear that the hostages, who were kept bound, interrogated and threatened for 444 days, were for trading purposes.519 Such developments, although contextually related to the laws on diplomacy, served to highlight the rapidly growing problem that hostage-taking was a favoured practice. This was especially so with insurgent/guerrilla/terrorist organisations whereby the control of hostages allowed weak, often obscure, groups to extort concessions from otherwise powerful governments. This was amply displayed during the 1970s, from the seizure and murder of Israeli athletes at the 1972 Munich Olympics through to the capture and ransoming of 60 OPEC officials in Vienna in 1975. Over 1,500 hostages were taken in 1978 when the Sandinista guerrillas seized the Nicaraguan Chamber of Deputies.  Protocol I 1977, Art 51(6).  Protocol I 1977, Art 75(2)(d). 514  Protocol II 1977 Art 4(2)(b). 515   ICRC 1977 Conference Resolutions in ICRC (1995) The Humanitarian Endeavour (Geneva, ICRC) 181. Note also ICRC (2002) ‘ICRC Position on Hostage Takers’ IRRC 846: 467–70. 516  Protocol I, Art 75(2). Protocol II, Art 4(2)(c). 517  S/RES/457 (1979, Dec 4); S/RES/461 (1979, Dec 31). 518  Australian Treaty Series (1977) No 18. See also the Vienna Convention on Diplomatic Staff 1961 and the Vienna Convention on Consular Relations, 1963. 519   United States Diplomatic and Consular Staff in Tehran. (United States of America v Iran) [1980] ICJ Rep 64. On their handling, see 23, 26, 59, 69–71, 76 and 86. For the bilateral settlement, see Iran-United States, Settlement of the Hostage Crisis 20 ILM (1981) 223–85. 512 513

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Due to such a growth in hostage-taking practices, a specific convention on this topic was concluded. The 1979 International Convention on the Taking of Hostages, which has received ongoing support from the General Assembly, made it an offence to seize, detain and/or threaten to kill, injure or continue to detain another person (the ‘hostage’) in order to compel a third party to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage, and then fleeing to another country.520 That is, the Convention was strictly based around hostage-taking that was of an international nature, although not of the type of armed conflict covered in the 1949 Geneva Convention or Additional Protocol 1.521 As such, the focus was very much on ‘the taking of hostages [a]s . . . a manifestation of international terrorism’.522 The Convention required each Party to ensure that hostage-taking was a punishable offence, to secure the release of hostages, to take all practicable measures to prevent hostage-taking occurring and to seek jurisdiction, custody and punishment over hostage-takers, even if they caused the offence in other countries.523 In the decade that followed, the Security Council reiterated its view that hostage-taking was ‘a manifestation of international terrorism’524 and such manifestations were a ‘grave concern to the international community’ that have ‘severe adverse consequences for the rights of victims and for the promotion of friendly relations and co-operation among states’.525 Accordingly, they consistently ‘condemned unequivocally all acts of hostage taking and abduction’526 and called for the ‘immediate and safe release of all hostages and abducted persons wherever and by whomever they are being held’.527 19 .  Between Pol Pot and Saddam Hussein

The decades between 1977 and the turn of the twenty-first century were poor in terms of preventing the mistakes of the recent past. The conflicts in Cambodia, Iraq, the former Yugoslavia and Rwanda all defy explanation in terms of their practices. The notable feature of this period was that many of the primary perpetuators of extreme crimes against humanity were slowly brought to justice. This was not always the case, with some conflicts going completely without censure, despite the utilisation of practices against civilians which were clearly outlawed, such as in the Soviet–Afghanistan War.528 In other instances, the perpetuators of clear crimes against civilians were never brought to justice. For example, one of the most brutal moments of Lebanon’s 1975– 90 civil war was the massacre that occurred in the Sabra and Chatila Palestinian refugee camps in September 1982. At this point, the camps were attacked by gunmen from   Hostages Convention, Arts 1 and 13. Note, UNGA Resolution (2007) 61/172 Hostage Taking.   Hostages Convention, Art 12. 522   Hostages Convention, Preamble. 523   Hostages Convention, Arts 2–11, 14 and 15. 524  S/RES/579 (1985, Dec 18); S/RES/638 (1989, July 31). 525  S/RES/579 (1985, Dec 18). 526  S/RES/579 (1985, Dec 18); S/RES/638 (1989, July 31). 527  S/RES/579 (1985, Dec 18). 528  Stroock, W ‘Afghanistan: The Soviet Union’s Vietnam’ Military Heritage (August 2009) 48–53; Human Rights Watch (1991) The Forgotten War (NYC, HRW) 5; Human Rights Watch (2002) All Our Hopes Are Crushed: Violence and Repression in Western Afghanistan (NYC, HRW) 14–29; Human Rights Watch (1988) Violations of the Laws of War in Afghanistan By All Parties to the Conflict (NYC, HRW) 41–42. 520 521

Between Pol Pot and Saddam Hussein 199

the Phalaanist militia, who were allies of Israel at the time. For the next 48 hours they tore through the camps in an indiscriminate wave of killings, with perhaps 2,000 people, including many women and children, being executed. Although this act was condemned by the Security Council,529 and labeled as a genocide by the General Assembly of the United Nations, the authors of this crime were never forced to answer for their acts.530 A similar set of omissions occurred in many of the wars in Latin America, whereby civilians were increasingly caught in the crossfire, were held as hostages or were intentionally targeted as reprisals implemented through either the insurgents or the government forces. This was a clear problem in the 1980s in El Salvador, Nicaragua, Peru and Columbia.531 It was a particularly notable problem in Guatemala where enforced disappearances, arbitrary executions and massacres of civilians (and especially the Mayan population) who were believed to be sympathetic to the insurgents may have, in the opinion of the Truth and Reconcilation report on Guatemala, been conducted and implemented with genocidal intentions.532 The war in Cambodia began in 1975 whilst the Additional Protocols were being drafted. The consequences of this war and its complete blindness to international humanitarian law, which ended in early 1979, were near unbelievable. This was because Democratic Kampuchea had managed to turn itself into one large prison camp for its eight million citizens. During this period, several hundred thousand people, or between 46 and 54 per cent of the total population of the country were uprooted and moved as the victorious Khmer Rouge emptied many of the urban centres. Massacres of entire areas were common. Exactly how many were killed by the forces of Saloth Sar (1928–98) or Pol Pot is a matter of speculation, although 1.6 million, which equated to 20 per cent of the population, is a commonly accepted figure. Everyone from former soldiers of the original government through to those whose only crime was living in the city, fell to a vicious, nationalistic, populist, peasant-driven chauvinistic hatred. Some groups were particularly targeted. For example, by 1979 the number of Buddhist monks in Cambodia had fallen from approximately 60,000 to 1,000. In addition, 50 per cent of the 400,000 strong Chinese community died as did an even higher proportion of Vietnamese who stayed. The Muslim minority – the Chams – saw a systematic attempt to destroy their leadership and identity as about one third of their population (some 77,000 individuals) were terminated. Most of the people who died met their end in places of internment, although remarkably, according to Pol Pot, prisons did not exist in Cambodia, only ‘re-education centres’. One of these  S/RES/564 (1985, May 31); also, S/RES/512 (1982, June 19); S/RES/513 (1982, July 4).   For the General Assembly resolution, see A/RES/37/123 of 16 December 1982. Note also the Commission of Inquiry Into the Event at the Refugee Camps in Beirut in 22 ILM (1983) 473–519. 531   Human Rights Watch (1992) Massacre at El Mozote (NYC, HRW); Lacayo, J (2000) ‘International Humanitarian Law and Irregular Warfare: Lessons Learnt in Latin America.’ IRRC: 840: 941–51; Human Rights Watch (1994) Mexico: The New Year’s Rebellion (NYC, HRW) 15; Megevand, B (1995) ‘Between Insurrection and Government: ICRC Action in Mexico’ IRRC 304: 94–108; Human Rights Watch (1998) Columbia and International Humanitarian Law (NYC, HRW) 5–6; Human Rights Watch (2001) Columbia: Beyond Negotiation: International Humanitarian Law and its Application to the Conduct of the FARC (NYC, HRW) 13–14; Minnig, M (1998) ‘The Lima Hostage Crisis’ IRRC 323: 293–302; Scheina, R (2003) Latin America’s War. The Age of the Professional Soldier, 1900–2001, Vol II (NYC, Brassey) 341, 351–55, 367–70, 377–83. 532   Historical Clarification Commission. (1999). The Guatemala Memory of Silence. (Guatemala) 85–89, 108–22. 529 530

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centres, known simply as S-21, saw at least 15,000 people being executed, with the chances of survival for detainees fluctuating between 2 and 5 per cent, due to a combination of torture, starvation and murder.533 The only positive news that came out of Cambodia on these topics was that after a hiatus of 27 years, the Extraordinary Chambers in the Courts of Cambodia,534 came into existence in 2006. The chambers were designed to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognised by Cambodia over the period of the war. The Extraordinary Chambers recognised the crime of genocide,535 crimes against humanity536 and crimes of war, as derived from the commission of grave breaches of the Geneva Conventions of 1949.537 As of 2010, in addition to the case of Guek Eav Kaing (alia Duch) (b 1949) who was commander of the torture and execution centre S-21,538 the more notable indictment for the purposes of this chapter is of Chea Nuon (b 1926).539 Nuon, the former Deputy Secretary of the Communist Party of Kampuchea was also indicted for his authority and effective control over the internal security apparatus of Democratic Kampuchea such as detention centres and the forcible transfers, enslavement, forced labour and other inhumane acts of the civilian population he oversaw. The second case of substantial, systematic and serious violations of international humanitarian law in terms of large-scale intentional killing, if not genocide, occurred in Iraq in the 1970s and 1990s, under the regime of Saddam Hussein (1937–2006). However, before this came to light, it was Hussein’s practice of taking hostages during his invasion of Kuwait that was of greatest concern to the international community; even though the Western hostages were released, hundreds, if not thousands of Kuwaiti hostages never returned to their country.540 Before and after his invasion of Kuwait, Hussein had been busy liquidating his own civilians, especially those of Kurdish ethnicity. Of these acts, the Security Council condemned the ‘Repression of the Iraqi civilian population in many parts of Iraq, including most recently in the 533   Kiernan, B (2002) The Pol Pot Regime (New Haven, Yale University Press) 32–33, 48–49, 107, 165, 173, 212, 217, 223, 238, 241, 243, 271, 294–98, 456–64; Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 583, 587, 589–91, 614–15; Totten, (2004) Century of Genocide (London, Routledge) 344–56. 534  See the Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006). Also, UNGA Resolution (2003) 57/228 The Khmer Rouge Trials. 535  Art 4. 536  Art 5. Where they were committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as murder, extermination, enslavement, deportation, imprisonment, torture, rape, and/or other inhumane acts. 537  Such as, inter alia, forbidden acts against prisoners of war and/or civilians, such as torture, unlawful deportation or unlawful confinement. 538   Case File No 001/18-07-2007/ECCC-TC. 539   Case File No 002/19-09-2007/ECCC-PTC. 540  S/RES/667 (1990, Sept 16); S/RES/674 (1990, Oct 29); S/RES/664 (1990, Aug 18); S/RES/666 (1990, Sep 13); S/RES/674 (1990, Oct 29). On the Kuwaiti hostages, see Human Rights Watch (2004) International Humanitarian Law Issues in a Potential War in Iraq (NYC, HRW) 2–4; Bin, A (1998) Desert Storm. A Forgotten War (Westport, Prager) 29; Forsythe, D (2005) The Humanitarians: The International Committee of the Red Cross (Cambridge, Cambridge University Press) 104; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 778, 862.

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Kurdish populated areas, the consequences of which threaten international peace and security’.541 Hussein failed to live up to the demands, and following the invasion of his country in 2003, he, along with six others, was brought to justice before the Iraqi Special Tribunal that was created by the Coalition Provision Authority. This tribunal dealt with crimes of genocide, crimes against humanity and crimes of war, in addition to violations of stipulated Iraqi law. Whilst some of his accomplices, such as Ali Hassan al-Majid (1941–2010) were tried for acts of genocide, this was not, in essence, the case with Hussein. For Hussein, it was for the killing of 148 Shiites from Dujail, via a collective reprisal, in retaliation for the assassination attempt on him of 8 July 1982, that sent him to the gallows.542 What Saddam was not brought to justice for, despite it being recognised by the Iraqi Special Tribunal as a crime in both international and non-international conflicts, was allowing his troops to practice systematic rape during his invasion of Kuwait, when perhaps 5,000 female Kuwaiti civilians were raped by the men of the Iraqi occupying force.543 The point at issue here is not that rape was unusual in the conflicts of the late 1970s and 1980s, indeed it featured in the conflicts of, inter alia, Afghanistan, Argentina, El Salvador, Guatemala Iran and Peru. Rather, the point is that it was only in the case of Iraq where it appears much more widespread and systematic.544 20.  The Wars of the

1990 s

As the Cold War waned throughout the 1990s, the Security Council came to place a clear and increased emphasis upon all countries complying strictly with their obligations under international humanitarian law. In particular, they highlighted the Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949, the 1977 Protocols, as well as pertinent Security Council decisions.545 For such a basis, they directed resolutions towards, inter alia, Afghanistan (before the United Nations invasion),546 Armenia 541  S/RES/688 (1991, Apr 5); Totten, S (2004) Century of Genocide (London, Routledge) 376–83; Human Rights Watch (2006)Genocide In Iraq: The Anfal Campaign (NYC, HRW) 2–5, 12–18, 23–34; Human Rights Watch (1994) Iraq’s Crime of Genocide: The Anfal Campaign Against the Kurds (NYC, HRW); Human Rights Watch (1993) Genocide in Iraq (NYC, HRW); Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 202–203. 542  Newton, M (2008) Enemy of the State: The Trial and Execution of Saddam Hussein (London, St Martin’s Press) 29–34; Human Rights Watch (2005) Ali-Hassan al Majid and the Basra Massacre (NYC, HRW) 2–5, 34–46; Wong, E ‘Saddam Charged With Genocide’ New York Times (5 April 2006) A1; Wong, E ‘Saddam Charged With Genocide’ New York Times (5 April 2006) A1. 543   Bin, A (1998) Desert Storm. A Forgotten War (Westport, Prager) 25; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 837; The crime was recognised in Arts 12(7) and 13(d)(6). 544   For the non-Iraqi conflicts, see The National Commission of Argentina on Disappeared People (1986) Nuncas Mas (London, Faber) 45–49; Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 719, 721; Human Rights Watch (1992) Untold Terror: Violence Against Women in Peru’s Armed Conflict (NYC, HRW) 15–19; Corbett, R (1986) Guerrilla Warfare (London, Orbis) 177; Fisk, R (2006) The Great War for Civilisation: The Conquest of the Middle East (London, Harper) 338. Historical Clarification Commission (1999) The Guatemala Memory of Silence (Guatemala) 82, 92–94. 545  S/RES/1265 (1999, Sept 17). 546  S/RES/1076 (1996, Oct 22); S/RES/1193 (1998, Aug 28). For the situation, see Human Rights Watch (1998) Afghanistan: The Massacre in Mazar-I Sharif (NYC, HRW) 7–19; Human Rights Watch (2005) Blood Stained Hands: Afghanistan’s Legacy of Impunity (NYC, HRW) 3–8, 43–51; Human Rights Watch (2001)

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and its neighbours,547 Angola,548 Georgia and its neighbours,549 Lebanon550 and Somalia.551 However this growth of emphasis upon compliance with international humanitarian law and the protection of civilians during the 1990s were most obvious with the conflicts of Liberia, Rwanda, Sierra Leone and the former Yugoslavia. It would be an exaggeration to suggest that this was a universal approach. That is, over this period, some conflicts have, such as in Chechnya, with the help of the Russian seat on the Security Council, managed to avoid any form of international censure. This is despite the systematic attacks on civilians by both sides of the conflict, with security forces being linked to policies ranging from enforced disappearances through to collective punishments and reprisals. Despite atrocities being committed by both sides, one area where one side has surpassed the other is in the taking of hostages. In this regard, as the conflict spilled over the borders, the taking of hostages became common. In the first instance, over 1,600 hostages were taken by Chechen insurgents in the town of Budennoovsk in 1995, of which over 100 were killed before a negotiated exit plan was agreed. Further hostages were taken in Kizliar in 1996. An additional 1,100 civilians, including 777 children, were taken hostage in Beslan, Russia in 2004 (of which approximately 350 were killed). In 2002, civilian hostages were taken in Dubrovka and Moscow. In the latter instance, 979 hostages were captured at Moscow’s Dubrovka theatre, including 100 school-age children. This last instance was condemned by the Security Council as a ‘heinous act’.552 The taking of hostages from within the Chechen population was supplemental to this practice, where hundreds of people, especially foreigners caught in Chechnya, were being taken each year around the turn of the century.553 Very similar problems also grew to occur with the United States-led forces in both Afghanistan and Iraq, in terms of the insurgents whom viewed civilians as legitimate targets, and who bore the brunt of being the intentional and collateral targets, as well as being victims of reprisals and collective punishments.554 Afghanistan: Massacres of Hazaras in Afghanistan (NYC, HRW) Sections IV and V; Human Rights Watch (2002) Paying for the Taliban’s Crimes (NYC, HRW); Human Rights Watch (2001) Afghanistan: Ethnically Motivated Abuses Against Civilians (NYC, HRW); 2–18; Human Rights Watch (1988) Violations of the Laws of War in Afghanistan By All Parties to the Conflict (NYC, HRW) 34–40. 547  S/RES/853 (1993, July 29); S/RES/822 (1993, Apr 30). 548  S/RES/1213 (1998, Dec 3) S/RES/1219 (1998, Dec 31); S/RES/1221 (1999, Jan 12); S/RES/1229 (1999, Feb 26); S/RES/811 (1993, Mar 12); S/RES/1157 (1998, Mar 20); S/RES/1164 (1998, Apr 26); S/RES/1180 (1998, June 29); S/RES/804 (1993, Jan 29); S/RES/834 (1993, June 1). 549  S/RES/896 (1994, Jan 31); S/RES/876 (1993, Oct 19); S/RES/881 (1993, Nov 4); S/RES/1036 (1996, Jan 12); S/RES/1065 (1996, July 12); S/RES/1124 (1997, July 31); S/RES/1150 (1998, Jan 30); S/ RES/1225 (1999, Jan 28); S/RES/1255 (1999, July 30); S/RES/1311 (2000, July 28); S/RES/1364 (2001, July 30); S/RES/1187 (1998, July 30); S/RES/1494 (2003), July 30. Note Application of the International Convention on the Elimination of all Forms of Racial Discrimination: (Georgia v Russia) ICJ 2008/44; Human Rights Watch (1992) Georgia/Abkhazia: Violations of the Laws of War (NYC, HRW) 24-28; Human Rights Watch (1992) Violations of Humanitarian Law and Human Rights in the Georgia-South Ossetia Conflict (NYC, HRW) 5–6. 550  S/RES/618 (1988, July 29). 551  S/RES/733 (1992, Jan 23); S/RES/814 (1993, Mar 26). Note this problem reappeared in the coming decade. See Human Rights Watch (2008) War Crimes and Devastation in Somalia (NYC, HRW) 2–14. 552  S/RES/1440 (2002, Oct 24). 553   Gilligan, E (2010) Terror in Chechnya (New Jersey, Princeton University Press) 8, 28–29, 57–58, 68–69, 124–43; Human Rights Watch (2009) Punitive House Burning in Chechnya (NYC, HRW) 7–14; Human Rights Watch (1995) Russia: Partisan War in Chechnya (NYC, HRW) 3, 9–18; McAllister, J ‘Defenceless Targets.’ TIME (13 September 2004) 10–19. 554   Human Rights Watch (2006) The Human Cost: The Consequences of Insurgent Attacks in Afghanistan (NYC, HRW) 2-12, 7–101; Human Rights Watch (2006) A Face and a Name: Civilian Victims of Insurgent Groups (NYC, HRW) 17–23, 34–38, 42, 51–69.

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Conversely, when American soldiers have replied in kind, the United States has (in theory) applied the same policy of prosecuting soldiers involved with reprisals against civilians in their conflict in Iraq and Afghanistan, such as those in inter alia, Haditha and Al-Falluja, as it did in Vietnam at Mai Lai.555 A.  The Former Yugoslavia

The series of violent wars fought in the former Socialist Federal Republic of Yugoslavia between 1991 and 1995 were characterised by bitter conflicts among the peoples of the former Yugoslavia, mostly between Serbs (and to a lesser extent, Montenegrins) on the one side and Croats and Bosniaks (and to a lesser degree, Slovenes) on the other; but also between Bosniaks and Croats in Bosnia. Between 1996 and 1999, these conflicts also came to encompass Kosovo. The common threads in all of these inter-related conflicts was the practice of targeting civilians via ethnic cleansing, hostage-taking, indiscriminate killings and, in places, genocide.556 The victims were disproportionately non-combatants. For example, the Croatian War which began in 1991 left a death toll of 103,000 dead, of which 55,261 were civilians. In addition, rape appears to have become a militarised practice in which between 20,000 and 50,000 women were victims. The majority of the rape victims were Muslim and Croat women raped by Serbian soldiers, although there is evidence that several hundred Serb women were also raped. Although men also became victims of sexual violence, war rape was disproportionately directed against women who were (gang) raped in the streets, in their homes and/or in front of family members. Some of the victims were as young as three or four. There were also at least 17 rape camps in eastern Bosnia, where Bosnian women and girls were held for weeks and repeatedly raped.557 555   Human Rights Watch (2003) Hearts and Minds: Post-War Civilian Deaths in Baghdad Caused By US Forces (NYC, HRW) 18–40; Human Rights Watch (2003) Violent Response: The United States Army in Al-Falluja (NYC, HRW) 6–18; Human Rights Watch (2004) Enduring Freedom: Abuses By US Forces in Afghanistan (NYC, HRW) 10–49; Duffy, M ‘The Shame of Kilo Company’ TIME (5 June 2006) 34–36; Independent ‘Grim Echoes of Vietnam in Iraq Massacre’ (30 May 2006) B3; Telegraph ‘Leaked Report Gives Chilling Detail of Marines Killing of Iraqi Civilians’ New Zealand Herald (8 January 2007) B3; Associated Press ‘Papers Show Belief in Freedom to Kill’ New Zealand Herald (5 September 2007) B3; Associated Press ‘Marine on War Crime Charges’ New Zealand Herald (19 August 2008) A13; Reuters. ‘Civilians Massacred by Marines’ New Zealand Herald (22 March 2006) B1. 556   Honig, J (1997) Srebrenica: Record of a War Crime (London, Penguin) xviii–xix; Glenny, M (1996) The Fall of Yugoslavia (London, Penguin) 125, 168, 186–87; Finlan, A (2004) The Collapse of Yugoslavia 1991–1999 (London, Osprey) 45; Drakulic, S (2004) They Would Never Hurt a Fly. War Criminals on Trial in the Hague (London, Abacus) 27–28, 36; Stephen, C (2004) Judgment Day. The Trial of Slobodan Milosevic (London, Atlantic) 6-7, 63, 69–70; Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 127–28; Human Rights Watch (2004) Failure to Protect: Anti-Minority Violence in Kosovo (NYC, HRW) 12, 16–28; Human Rights Watch (2001) Under Orders: War Crimes in Kosovo (NYC, HRW) 119–30; Human Rights Watch (1999) A Village Destroyed: War Crimes in Kosovo (NYC, HRW); Human Rights Watch (1996) Persecution Persists: Human Rights Violations in Kosovo (NYC, HRW); Human Rights Watch (1996) Human Rights Abuses During a Cease Fire and Peace Negotiations (NYC, HRW) 7–12; Human Rights Watch (1994) ‘Ethnic Cleansing’ In Northern Bosnia (NYC, HRW); Human Rights Watch (1994) Six War Criminals Named For ‘Ethnic Cleansing’ (NYC, HRW) Human Rights Watch (1994) Bosnia-Herzegovina: Sarajevo (NYC, HRW) 5–6; Human Rights Watch (1994) Human Rights Abuses of Non-Serbs in Kosovo, Sandaz and Vojvodina (NYC, HRW); Human Rights Watch (1993) Abuses By Bosnian Croat and Muslim Forces (NYC, HRW) 4–17; Human Rights Watch (1992) War Crimes in Bosnia-Herzegovina, Vol 1 (NYC, HRW) Human Rights Watch (1992) Human Rights Abuses in Kosovo 1990–1992 (NYC, HRW) 12–19, 22–25. 557   Human Rights Watch (2000) Kosovo: Rape As A Weapon of Ethnic Cleansing (NYC, HRW) 2–13; Human Rights Watch (2001) Under Orders: War Crimes in Kosovo (NYC, HRW) 130–34; Glenny, M (1996) The Fall of

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All of the above practices were of direct concern to the Security Council between 1992 and 1998, where the Council continually reiterated their condemnation of ‘the abuses committed against the civilian population, particularly on ethnic grounds’.558 The Council repeatedly condemned any violations of international humanitarian law, to which all Parties were bound, ‘including those involved in the practice of [so-called] ethnic cleansing’.559 Following the capture of the United Nations safe areas in 1995, including Srebrenica (of which 23,000 Bosnian women and children were deported and at least 6,513 men went missing), the Council condemned the grave violations of international humanitarian law including ‘summary executions, mass expulsions, arbitrary detentions, forced labour and large scale disappearances’.560 The Security Council also strongly condemned the acts of rape as being ‘of unspeakable brutality’ and demanded that the camps where these acts were allegedly occurring be opened up to outside inspectors, with a view to the camps being closed immediately.561 Against such a background, it was not surprising that when the International Criminal Tribunal for the former Yugoslavia was established it was given clear oversight over the crimes of, inter alia, genocide, and crimes against humanity including crimes involving murder, extermination, hostage-taking, enslavement;, unlawful deportation and other inhumane acts. Rape was also explicitly recognised as a crime against humanity (rather than just as a violation of the laws and customs of war).562 From oversight for such crimes, a large number of perpetuators of murder such as Mitar Vasiljevic (b 1954)563 were brought to justice. Other criminals were incarcerated for, inter alia, the abuse of civilians for unlawful labour, such as with Dario Kordic (b 1960)564 Vinko Martinovic (b 1958)565 and Biljana Plavsic (b 1930)566 and even enslavement in the case of Dragoljub Kunarac (b 1960)567 and others. In the case of Thihomor Blaskic (b 1960) captured orders were revealed in the court room by which it was agreed that ‘the entire male population’ of certain villages would be killed, and then the villages would be torched.568 The crime of rape became the basis from which a number of men were indicted to stand trial and subsequently convicted, including, Yugoslavia (London, Penguin) 208–209; Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 127; Forsythe, D (2005) The Humanitarians: The International Committee of the Red Cross (Cambridge, Cambridge University Press) 114; Human Rights Watch (1994) Bosnia-Herzegovina: Sarajevo (NYC, HRW) 14–18. 558  S/RES/769 (1992, Aug 7); S/RES/819 (1993, Apr 16); S/RES/941 (1994, Sept 23). 559  S/RES/752 (1992, May 15); S/RES/764 (1992, July 13); S/RES/771 (1992, Aug 13); S/RES/787 (1992, Nov 16); S/RES/819 (1993, Apr 16); S/RES/941 (1994, Sept 23); S/RES/1199 (1998, Sept 23). 560  S/RES/1034 (1995, Dec 21); Honig, J (1997) Srebrebuca: Record of a War Crime (London, Penguin) xviii, 48–66; Glover, J (2001) Humanity. A Moral History of the Twentieth Century (London, Pimlico) 134–40; Finlan, A (2004) The Collapse of Yugoslavia 1991–1999 (London, Osprey) 53–55. 561  S/RES/798 (1992, Dec 18); S/RES/820 (1993 Apr 17); S/RES/1019 (1995, Nov 9). 562  Art 4 refers to genocide, and Art 5 refers to crimes against humanity, including rape. Note also, UNGA Res 50/192 Rape and abuse of women in the areas of armed conflict in the former Yugoslavia (1995). 563   The Prosecutor v Mitar Vasiljevic The Hague (29 November 2002) JL/PIS/713-e. 564  See Trial of Kordic & Cerkez The Hague (26 February 2001) JL/PIS/567-e. 565   Prosecutor v Naletilic & Martinovic The Hague (31 March 2003) CC/PIS/742e. 566   Prosecutor v Biljana Plavsic The Hague (27 February 2003) CC/PIS/734e. 567  See Appeals Chamber Judgement in the Kunarac, Kovac & Vukovic Case The Hague (12 June 2002) CVO/PIS/679-E. Also available www. icty.org. 568   Prosecutor v Blaskic The Hague (3 March 2000) JL/PIS/474-e. Note, Del Ponte, C (2008) Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (NYC, Other Press) 247–50, 263–66.

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inter alia, Kunarac,569 Marko Radic (b 1961),570 Anto Furundzija (b 1958),571 Radovan Stankovic (b 1961),572 and Dragan Zelenovic (b 1957)573. The crime of genocide has proven much harder to convict. Whilst some criminals have been convicted of murder, such as Goran Jelisic (b 1968), despite being highly odious and discriminatory, his actions were more opportunistic and inconsistent as opposed to being systematic and part of an overall plan to destroy in whole or in part an ethnic group.574 Likewise, with the case involving Ljubica Kupreskic (b 1954), without the specific intent to commit genocide, the defendant could only be prosecuted for murder.575 Even with the high-level defendants, such as Ljubisa Beara (b 1939) and Radislav Krstic (b 1948), the colonel and general in charge of over-running the United Nations safe area of Srebrenica in 1995 in which some 7,000 to 8,000 men were captured and executed, Krystic was found guilty only of aiding and abetting genocide, not of committing the act himself.576 Accordingly, the core of the crime of genocide has only been laid at the feet of the highest level leaders in the former conflict such as Slobodan Milosevic (1941–2006) – who never answered the charge as he died whilst in custody and Radovan Karadzic (b 1945).577 Although the fate of Karadzic had not been decided at the time of writing this book, in 2008, the International Court of Justice in the judgment on the Case Concerning the Application of the Genocide Convention (Croatia v Serbia), was of the opinion that the acts committed at Srebrenica were genocidal in that they were committed with the specific intent of destroying in part the group of Muslims of Bosnia and Herzegovina. However, the Court found that Serbia, through its organs or persons whose acts engage its responsibility under customary international law, was neither directly responsible for the Srebrenica genocide, nor complicit in it. Nevertheless, the Court did rule that Serbia had committed a breach of the Genocide Convention by failing to prevent the Srebrenica genocide and for not cooperating with the International Criminal Tribunal for the former Yugoslavia in punishing the perpetrators of the genocide, in particular in respect of General Ratko Mladi   c´ (b 1942), the former chief of the Bosnian Serb Army, who was finally arrested in 2011.578 569  See Appeals Chamber Judgement in the Kunarac, Kovac & Vukovic Case, The Hague, 12 June 2002 CVO/PIS/679-E. Also, Tribunal II JL/PIS/566-e. Also available www.un.org/icty/pressreal/p679-e. htm. not worjking; Drakulic, S (2004) They Would Never Hurt a Fly. War Criminals on Trial in the Hague (London, Abacus) 47-58; Stephen, C (2004) Judgment Day. The Trial of Slobodan Milosevic (London, Atlantic). 150–54. 570   Prosecutor v Kvocka, Kos, Radic, Zigic & Prcac The Hague. Nov 2 2001, CC/PIS/631e. 571   Prosecutor v Anto Furundzija Statement of the Trial Chamber at the Judgment Hearing. www.un.org/ icty/pressreal/fur-sumj981210e.htm.link not working; Castle, S ‘Guilty of Crimes Against Humanity’ New Zealand Herald (24 Feburary 2001) B1. 572  Reuters, ‘NATO Steps Up War Crimes Pursuit’ New Zealand Herald (11 July 2002) B2. 573   Prosecutor v Zelenovic IT-96-23/2. 574  See The Jelisic Case The Hague (14 December 1999) JL/PIS/454e. 575   Prosecutor v Kupreskic 41 ILM (2002) 310. 576   Prosecutor v Radislav Krstic The Hague, Aug 2 2001 OF/PIS/609e; Drakulic, S (2004) They Would Never Hurt a Fly. War Criminals on Trial in The Hague (London, Abacus) 74–95; Anon ‘Bosnian Serb Sent to Jail’ Guardian Weekly (21 December 2004) A 12; Traynor, I ‘Hague Rules Srebrenica Was Genocide’ Guardian Weekly (22 April 2004) 5; Zimonjic, V ‘Officer To Face Genocide Charges’ New Zealand Herald (2004) B3. 577  Osborn, A ‘Milosevic to Face Genocide Charges’ Guardian Weekly (6 September 2001) 5; McGeary, J ‘Will Milosevic Get His?’ TIME (18 February 2002) 24–27; Black, I ‘Karadzic Ordered Killing of Muslim Captives’ Guardian Weekly (27 November 2003) 5. 578   Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (ICJ) 48 ILM (2009) 268.

206  Occupation B. Rwanda

Substantial, systematic and serious violations of international humanitarian law in terms of large-scale intentional killing, including genocide, occurred in Rwanda during the middle of the 1990s. Rwanda has long been plagued by such violence. The first recorded case of genocide in the Great Lakes Region of Africa occurred in 1972 in Burundi where anywhere between 200,000 and 300,000 Hutus lost their lives at the hands of a predominantly Tutsi army in an orgy of killings triggered by an abortive Hutu insurrection. The subsequent genocide that took place in 1994 saw between 500,000 and 800,000 mostly Tutsi people being killed,579 despite the pleas by the Security Council for restraint and for all Parties strictly to respect the rules of inter­ national humanitarian law.580 Estimates also suggest that perhaps half a million women were raped during the genocide. There is evidence that the HIV virus was weaponised in this conflict. Studies of some 2,000 women who had been raped during the genocide revealed the fact that 80 per cent of them were HIV positive.581 From these acts, the International Criminal Tribunal for Rwanda, which came to be given a very similar constitution to that of the Tribunal for the former Yugoslavia, came to find a number of defendants guilty of rape related crimes. In this regard, Jean-Paul Akayesu (b 1953), the former mayor of a small town in Rwanda, was found guilty of nine counts of genocide, as well as for allowing his troops to rape with impunity under his command.582 Two days later, Jean Kambanda (b 1955) became the first head of government, ever to be convicted of genocide.583 Subsequent convictions for genocide have followed since this point, and it is likely that more convictions will be made, as the International Criminal Tribunal originally had a list (as of 1995) of about 400 genocide suspects.584 C.  Sierra Leone and Liberia

In early 1990 the National Patriotic Front of Liberia of Charles Taylor (b 1948) launched itself into Liberia and unleashed two civil wars of remarkable ferocity, terror and horror, which came to account for a death toll of over 400,000 people. The war also came to spill over into neighbouring Sierra Leone and accounts for at least 120,000 other deaths. Civilians were a primary target in a type of warfare which became known as ‘tribal business’ where mass murder, torture and rape (of over 50,000 females) were 579   International Panel of Eminent Persons: Report on the 1994 Genocide in Rwanda 40 ILM (2001) 140; Human Rights Watch (2006) The Rwandan Genocide (NYC, HRW). Totten, S (2004) Century of Genocide (London, Routledge) 321–30, 395; Human Rights Watch (1999) Leave None to Tell the Story (NYC, HRW). Eltringham, N (2004) Accounting For Horror, Post Genocide Debates in Rwanda (London, Pluto) 1–34, 100–47. 580  S/RES/812 (1993, Mar 12); S/RES/846 (1993, June 22); S/RES/912 (1994, Apr 21); S/RES/912 (1994, Apr 21). For concern with regards to Burundi, see S/RES/1012 (1995, Aug 28). 581   Human Rights Watch (2005) Barriers to Justice for Rape Victims in Rwanda (NYC, HRW) 2–14; Human Rights Watch (2002) ‘We’ll Kill You if You Cry’: Sexual Violence, Rape and Sexual Slavery in Sierra Leone (NYC, HRW); Human Rights Watch (1998) Sierra Leone: Atrocities Against Civilians (NYC, HRW) 32–39. 37 ILM (1998) 1399; Human Rights Watch (1999) Shattered Lives: Sexual Violence During the Rwandan Genocide (NYC, HRW) 16–17. 582   37 ILM (1998) 1399. 583   Prosecutor v Kambanda 37 ILM (1998) 1411. 584  Prunier, G (2009) Africa’s World War (Oxford, Oxford University Press) 12–13, 26; Bortin, M ‘Rwandans Convicted Over 1994 Genocide’ Herald Tribune (19 December 2008) A7.

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traded between belligerents and civilian communities. The nature of Taylor’s Operation ‘No Living Thing’ gave a clear indication of the lack of limits in this theatre of warfare. With regards to crimes against children, the Truth and Reconciliation Commission for Liberia was particularly clear. Thus: Children suffered some of the most horrific crimes committed during the Liberian Civil War . . . They were forced to kill friends and family members including their parents, rape and be raped, serve as sexual slaves and prostitutes, labor, take drugs, engage in cannibalism, torture and pillage communities . . . Rebel commanders organised cooking feasts and served children’s body parts, including their intestines and hearts. The blood of children was collected and cooked in soups . . . nearly 26,000 reported violations [to the Commission] were against women . . . women suffered disproportionately from sexual violence, including gang rape, sexual slavery, outrages on personal dignity, and torture, amongst others. Girls and women ages between 15 and 19 comprise the largest category of reported cases of sexual violence. Women as old as eighty years old were perversely dehumanised through gendered violence.585

These types of warfare continued despite the repeated pleas of the Security Council between 1992 and 1996 for all Parties to adhere strictly to the provisions of inter­ national humanitarian law, and prohibit rape in particular.586 As at May 2011, Charles Taylor, the former President of Liberia, was on trial in a Special Tribunal which is sitting in the Netherlands for 11 counts of war crimes and crimes against humanity. The Security Council actively supported this process in bringing Taylor to justice.587 When the Statute of the Special Court for Sierra Leone was established, jurisdiction was given over crimes against humanity, including rape, hostage-taking and other crimes of war (in term of violations of common Article 3 of all of the Geneva Conventions and of Additional Protocol II), such as acts of terrorism and collective punishments against civilians.588 With regard to the last two counts, Sam Hinga Norman (1940– 2007) was charged with these, along with acts of terrorism and collective punishments.589 Although Norman died before sentence could be passed, his co-accused, Moinina Fofana (b 1950) was acquitted of acts of terrorism, but was convicted of implementing collective punishments. This conviction was supplemented by those of Morris Kallon (b 1964), Alex Tamba Brima (b 1971), Santigie Borbor Kanu (b 1965) and Issa Sesay (b 1970) who were all convicted of crimes including, inter alia, rape, collective punishments, murder and the infliction of terror.

585  Republic of Liberia (2007) Truth and Reconciliation Commission. (TRC, Monrovia) Vol 1, 44. See also Slim, K (2008) Killing Civilians (NYC, Columbia University Press) 10, 141–43; Human Rights Watch (2002) Back to the Brink: War Crimes By The Liberian Government and Rebels (NYC, HRW) 7–13; Human Rights Watch (1990) Liberia: A Human Rights Disaster (NYC, HRW) 3–5, 8–10. 586  S/RES/788 (1992, Nov 19); S/RES/813 (1993, Mar 26); S/RES/950 (1994, Oct 21); S/RES/1001 (1995, June 30); S/RES/1041 (1996, Jan 29); S/RES/1181 (1998, July 13); S/RES/1400 (2002, Mar 28); S/RES/1059 (1996, May 31); S/RES/1083 (1996, Nov 27). 587  S/RES/1688 (2006 June 16); S/RES/1532 (2004) Mar 12; S/RES/1579 (2004) Dec 21; S/ RES/1607 (2005 June 21); S/RES/1521 (2003 Dec 22); Human Rights Watch (2006) Trying Charles Taylor (NYC, HRW) 7–11. 588  See Arts 2 and 3 of the Special Court. For the support of the Sierra Leone Tribunal, see S/RES/1508 (2003 Sept 19). And Security Council concern, S/RES/1270 (1999, Oct 22); S/RES/1289 (2000, Feb 7); S/RES/1343 (2001 Mar 7); S/RES/1470 (2003 March 28); S/RES/1620 (2005 Aug 31). 589  See the Sam Ninga Norman case in 43 ILM (2004) 1129.

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21 .  The International Criminal Court and its Aftermath

Systematic attacks on civilians, sometimes potentially involving genocide, have been a clear practice in the wars in Africa in the new century in Burundi,590 Chad,591 the Democratic Republic of the Congo,592 Guinea,593 Rwanda594 and in the Darfur region of Sudan. In the last instance alone, hundreds of thousands of non-combatants appear to have either been killed or driven from their homes between 2004 and 2010.595 When dealing with such overall problems in Africa in 2006, the Security Council recalled that the: [D]eliberate targeting civilians and other protected persons . . . in situations of armed conflict is a flagrant violation of international humanitarian law [and] reiterates its condemnation in the strongest possible terms of such practices . . . [and] emphasizes the responsibility of States to comply with their relevant obligations to end impunity and to prosecute those responsible for war crimes, genocide, crimes against humanity and serious violations of international humanitarian law.596

The response of the Security Council to the specific situations, has been repeatedly to warn the protagonists of their obligations to international humanitarian law, and in some instances, such as with the Congo, even the Genocide Convention.597 These demands have been supplemented with promises that those who violate the obligations of humanitarian law ‘will be held accountable’.598 The holding of such people accountable, from the new century onwards, has been done largely through the International Criminal Court. This court came into being in the middle of 2002 and it can only prosecute crimes committed on or after that date. This is the permanent tribunal that was designed to prosecute individuals for genocide, as well as crimes such as 590  Human Rights Watch (2004) Burundi: The Gatumba Massacre (NYC, HRW) 5–11; Human Rights Watch (2003) Everyday Victims: Civilians in the Burundian War (NYC, HRW) 11–35. 591   Human Rights Watch (2008) Militia Attacks and Ethnic Targeting in Eastern Chad (NYC, HRW) 8–12, 14. 592   Human Rights Watch (2010) ‘Trail of Death’ (NYC, HRW) 1–19, 24–39; Human Rights Watch (2009) Attacks on Civilians in Eastern Congo (NYC, HRW) 12–19, 23–34, 45–56; Human Rights Watch (2005) Civilians Attacked in North Kivu (NYC, HRW) 3–8; Human Rights Watch (2004) War Crimes in Bukavu (NYC, HRW) 1–9; Human Rights Watch (2002) War Crimes in Kisangani (NYC, HRW) 21–32; Human Rights Watch (2000) Democratic Republic of the Congo: Eastern Congo Ravaged (NYC, HRW). 593   Human Rights Watch (2009) Bloody Monday (NYC, HRW) 7–10, 12–19. 594   Human Rights Watch (2007) Killings in Eastern Rwanda (NYC, HRW) 3, 5–9, 14–20. See also for the inter-related nature of these atrocities, Prunier, G (2009) Africa’s World War (Oxford, Oxford University Press) 70–71, 132, 211–12, 225, 227–28, 297. 595   Human Rights Watch (2009) No-One to Intervene (NYC, HRW) 2–15, 34–45; Human Rights Watch (2008) They Shot Us as We Fled (NYC, HRW) 7–18; Human Rights Watch (2006) Entrenching Impunity (NYC, HRW) 9–34, 61–64, 75–86; Anon ‘Dafur Deaths Underplayed’ New Scientist (23 September 2006) 4; Human Rights Watch (2004) Empty Promises? (NYC, HRW) 17–24; Human Rights Watch (2004) Darfur Destroyed: Ethnic Cleansing in Western Sudan (NYC, HRW); Human Rights Watch (2004) Consolidation of Ethnic Cleansing in Darfur, Sudan (NYC, HRW) 2–18; Human Rights Watch (2004) Addressing Crimes Against Humanity and Ethnic Cleansing in Darfur, Sudan (NYC, HRW) 12–19; Human Rights Watch (2004) Civilian Devastation: Abuses By All Parties in the War in Southern Sudan (NYC, HRW) 2, 7–8, 18, 23–25. 596  S/RES/1674 (2006 Apr 28). 597  S/RES/1291 (2000, Feb 24); S/RES/1445 (2002, Dec 4); S/RES/1234 (1999, Apr 9); S/RES/1341 (2001, Feb 22). 598  S/RES/1856 (2008, Dec 22); S/RES/1828 (2008, July 31); S/RES/1794 (2007, Dec 21); S/ RES/1772 (2007 Aug 20); S/RES/1756 (2007, May 15); S/RES/1590 (2005 Mar 24); S/RES/1591 (2005 Mar 29); S/RES/1564 (2004 Sept 18); S/RES/1355; S/RES/1484 (2003, May 30); S/RES/1493 (2003, July 28).

The ICC and its Aftermath 209

rape, hostage-taking and other crimes of war, or crimes against humanity in which non-combatants were the intentional victims. Accordingly, after a prolonged lack of progress, the leaders of the Sudanese State have been indicted before the International Criminal Court, following referral of the matter by the Security Council.599 The resultant indictments have included Ahmad Muhammad Harun (b 1964),600 the former minister of the Interior of the Government of Sudan, Ali Muhammad Ali Abd-AlRahman (b 1943), 601 the alleged leader of the Militia/Janjaweed and Omar Hassan Ahmad Al Bashir, (b 1944),602 the president of Sudan for the crimes of murder and genocide, Bahar Idriss Abu Garda (b 1963), the leader of the primary resistance force against the Sudanese government, is also indicted before the International Criminal Court on counts of, inter alia, murder and attacking United Nations peacekeepers.603 Claims of wilful killing and murder as war crimes and crimes against humanity have been brought to belligerents in the Congo, of which the Security Council has demanded an end to impunity, in the case of Germain Katanga (b 1978) and Mathieu Ngudjolo Chui (b 1970).604 Similar charges exist in the Central African Republic for Jean-Pierre Bemba Gombo (b 1962)605 and in Uganda with many of the leaders of the so called ‘Lord’s Resistance Army’ which the Security Council noted ‘[c]ontinues to attack civilians and United Nations and humanitarian personnel and commit human rights abuses against local populations’.606 From such concerns, Joseph Koni (b 1961), Vincent Otti (b 1946), Okot Odhiambo (b 1961) and Dominic Ongwen (unknown date of birth)607 have all been indicted before the International Criminal Court. The crime of rape in time of war became increasingly common during the last decade of the twentieth century.608 Thus the topic became of notable international concern, including to the Security Council.609 In this regard, in 2008 the Security Council recognised sexual violence as a tactic of war utilised against civilians that could be a war crime, a crime against humanity or a constitutive act with respect to genocide, and ‘stressed the need for the exclusion of sexual violence crimes from amnesty provisions in the context of conflict resolution processes’.610 To help facilitate such goals, rape and associated sexual crime were explicitly recognised by the International Criminal Court as grave breaches of the Geneva Conventions  S/RES/1593 (2005, Mar 31); S/RES/1672 (2006, Apr 25).   The Prosecutor v Harun and Abd-Al-Rahman (2007) International Legal Materials 46:352. 601  ICC-02/05-01/07. 602  ICC-02/05-01/09. The International Criminal Court’s Arrest Warrant for Omar Al Bashir, President of Sudan 48 ILM 463 (2009). Note also, Appeal of the Prosecutor Against the Decision on the Prosecutions Application For a Warrant of Arrest Against Omar Al Bashir 49 ILM (2010) 923–36. 603  ICC-02/05-02/09. 604   ICC-01/04-01/07; S/RES/1565 (2004 Oct 1). 605  ICC-01/05-01/08. 606  S/RES/1653 (2006) Jan 7; S/RES/1663 (2006 Mar 24). 607  ICC-02/04-01/05. 608  Slim, H (2008) Killing Civilians (NYC, Columbia University Press) 64-69; Human Rights Watch (1994) Rape in Haiti: A Weapon of Terror (NYC, HRW); Human Rights Watch (1993) Rape in Kashmir: A Crime of War (NYC, HRW); Human Rights Watch (1999) The Destruction of Odi and Rape in Choba (NYC, HRW) Human Rights Watch (2003) The Horn of Africa War (NYC, HRW) 3-10. 609   Declaration on the Elimination of Violence against Women GA Res 48/104, 48 UN GAOR Supp (No 49) at 217, UN Doc A/48/49 (1993). See also the Beijing Declaration and Platform for Action from the Fourth World Conference on Women 15 September 1995, A/CONF.177/20 (1995) and A/ CONF.177/20/Add.1 (1995). Art 133. 610  S/RES/1820 (2008, June 19). Also, RES/1325 (2000, Oct 31); S/RES/1261 (1999, Aug 30); S/ RES/1314 (2000, Aug 11). 599 600

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and potential war crimes and/or crimes against humanity in both international and non-international conflicts.611 Following through, indictments have been issued by the Court for alleged crimes of rape and sexual slavery in most of the cases noted above with regard to extreme violence against civilian populations and/or genocide. Thus rape as a particular crime, in addition to other alleged crimes, has been recognised as a potential crime in cases involving the Democratic Republic of the Congo612 (Katanga and Chui),613 the Central African Republic (Gombo),614 Uganda (Koni, Otti, Odhiambo and Ongwen)615 as well as in the Sudan616 (Harun, Al-Rahman,617 and Omar Hassan Ahmad Al Bashir).618 It has also been recognised as an ongoing crime in other regions of Africa by the Security Council, such as in Côte d’Ivoire.619 At the time of writing, no international action has been taken in this area, although the Security Council has called for an end to impunity for those involved crimes against civilians in violation of international humanitarian law.620

  ICC Arts 8 (b)(xxii), 8(b)(xi), 8(c)(ii) and 8(e)(vi).  S/RES/1468 (2003 March 20); S/RES/1493 (2003, July 28); Human Rights Watch (2009) Soldiers Who Rape, Commanders Who Condone (NYC, HRW) 7–10, 15–25; Human Rights Watch (2005) The Prosecution of Sexual Violence in the Congo War (NYC, HRW) 7–10, 32. 613  ICC-01/04-01/07. 614  ICC-01/05-01/08. 615  ICC-02/04-01/05. 616  See Human Rights Watch (2008) No Justice for Sexual Violence in Dafur (NYC, HRW) 1, 2–7, 23–35; Human Rights Watch (2005) Sexual Violence and its Consequences Among Displaced People in Dafur and Chad (NYC, HRW) 2–6, 23–43. 617  ICC-02/05-01/07 618  ICC-02/05-01/09. 619   Human Rights Watch (2007) Sexual Violence by Rebels and Pro-Government Forces in Cote d’Ivoire (NYC, HRW) 2–8, 12–18; Human Rights Watch (2006) The Price of Continuing Impunity in Cote’d Ivore (NYC, HRW) 7, 10, 14–18; Human Rights Watch (2003) Trapped Between Two Wars: Violence Against Civilians in Western Cote d’Ivoire (NYC, HRW) 12–19. 620  S/RES/1479 (2003 May 13); S/RES/1572 (2004 Nov 15); S/RES/1842 (2008, Oct 29). 611 612

IV Property 1 .  Beginnings

H

istorians suggest that there is a very long-standing feeling within humanity that some places, because of their cultural significance, should be left inviolate as their significance extends far beyond the current generation the modern manifestation of this is the World Heritage Convention (WHC).1 However, this is a modern manifestation of concern and in practice, before humanity left written records, they left ruins. Often these ruins related directly to the cultures that disappeared. For example, archeology reveals the existence of tens of thousands of tablets in ancient Sumer in the temple of the fearsome goddess Eanna, in city of Uruk. Whilst a few were intact, the majority were in fragments, burnt or pulverised from an incident that occurred between 4100 and 3300 BCE. This discovery contains one of the great paradoxes of civilisation, namely, the discovery of the earliest books also establishes the date of their earliest destruction. This act was neither an accident nor nature at work. It was a premeditated act of war which often overlapped with the uncontrolled looting of enemy territory. The Sumerian’s summed up this situation around the year 2400 BCE, when it was noted: ‘You go and carry off the enemy’s land; The enemy comes and carries off your land’.2 The Egyptian philosopher Amenemope, writing around the tenth century BCE, later warned in a clear reflection of the period: ‘Do not strain to seek excessive riches when your needs are safe and satisfied. If the riches are brought to you by robbery, they will not spend the night with you’.3 Despite these philosophical musings, there were no rules prohibiting the taking or destruction of the property of enemies in times of war. The only rules that were applicable in this period were over the division of the appropriated property taken in times of conflict. These rules were necessary for two reasons. First, so that equity could be achieved amongst the victors and each would get their ‘just’ reward. Thus, portions were kept for the king, some for the appropriate religious authorities, and the rest for distribution, pro rata, to the troops. Secondly, so that the troops would continue to fight through a conflict, and not stop to do private pillaging, allowing an enemy to regroup, as was a common problem in the first recorded battles in history such as at Megiddo (1479 BCE) and Kadesh. Such rules are recorded in, inter alia, the Egyptian, Babylonia and Assyrian societies. Only the Persians attempted to place some restraint on what could be taken from the defeated, for it was recognised that allowing uncontrolled   World Heritage Convention 9 ILM (1970) 1031.   Kramer, S (1981) History Begins at Sumer (Philadelphia, University of Pennsylvania Press) 123. Kramer, S (1963) The Sumerians. Their History, Culture and Character (Chicago, University of Chicago Press) 62, 65; Saggs, H (1989) Civilisation Before Greece and Rome (New Haven, Yale University Press) 177. 3  See Asante, M (2000) The Egyptian Philosophers (Chicago, African Images) 110. 1 2

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pillaging of a defeated foe ultimately meant stealing from oneself and did little to ingratiate the defeated towards their new overlord.4 Against such a background, theft and destruction were clearly displayed by some of the world’s first would-be imperialists, such as Lugalzagesi (c 2375–2350 BCE) who was the king of Umma in South Mesopotamia. When he overran the competing city of Lagash, one of his concluding acts was to burn their temple. Everything of value that his troops could not carry off, such as their shrine and buildings of the enemy, he had committed to flames.5 One hundred and fifty years later, Naram-Sin (2254–18 BCE) followed suit when he sacked the city of Nippur, which was finally defiled with the destruction of the sanctuary of the foremost god of the Mesopotamian pantheon, Enlil, to fully demonstrate that Nippur had no favour with the deities in terms of protecting the city in general, or those seeking sanctuary within the walls of the temple. The destruction was such that when he finished, the temple ‘lay prostrate like a dead youth’.6 The same thinking permeated the stories in the Bible, from which the instruction was given ‘ye shall destroy their altars, break their images, and cut down their groves’.7 The Bible has a number of examples where the destruction of the cultural property of was recorded. For example, Joshua, in unwitting defiance of the newly discovered laws, ordered the destruction of all sanctuaries where sacrifices had been offered to the God of Israel. Accordingly, idols and other paraphernalia for the worship of pagan Gods were dragged out of the Temple and burnt to ash, including even the shrines built by Solomon for the pleasure of his pagan wives. Such acts were not uncommon for the period. For example, after the battle of Susa between the Assyrians and Elamites in 647 BCE, Ashurbanipal (685–627 BCE) recorded: Susa, the great holy city, abode of their Gods, I conquered. I entered its palaces, I opened their treasuries . . . I destroyed the ziggurat of Susa. I smashed its shining copper horns. I reduced the temples of Elam to naught. The tombs of their ancient and recent Kings I devastated.8 Similarly, as the destruction of the Temple in Jerusalem by the Babylonians in 586 BCE testified. Specifically: Nebuchadnezzar, king of Babylon – came to Jerusalem. And he burned the house of The Lord, and the king’s house and all the houses of Jerusalem. And all the army of the Chaldeans, who were with the captain of the guard, broke down the walls around Jerusalem. . . . And the pillars of bronze that were in the house of The Lord, and the stands and the bronze sea that were in the house of The Lord, the Chaldeans broke in pieces, and carried the bronze to 4   Ferrill, A (1988) The Origins of War (London, Thames & Hudson) 18; Dawson, D (2001) The First Armies (London, Cassell) 90, 145. See also the Mari letters, in Postgate, J (1996) Early Mesopotamia: Society and Economy and the Dawn of History (London, Routledge) 253. For some examples on divisions, see Luckenbill, D (ed) (1989) Ancient Records of Asssyria and Babylonia (London, Histories and Mysteries) Vol I, 81, 99, 101, 112–13, 240–41, 281, 284; Vol II, 6–7, 118, 133, 296–97, 328; Edwards, I (1973) (ed) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380–1000 BCE, 3rd edn, Vol II (1) (Cambridge, Cambridge University Press) 369–71. 5   Dawson, D (2001) The First Armies (London, Cassell) 90; Postgate, J (1996) Early Mesopotamia: Society and Economy and the Dawn of History (London, Routledge) 253. 6   Kramer, S (1963) The Sumerians. Their History, Culture and Character (Chicago, University of Chicago Press) 56, 58, 64. Also, Edwards, I (ed) (1971) The Cambridge Ancient History. Early History of the Middle East, 3rd edn, Vol 1 (2) (Cambridge, Cambridge University Press) 119, 466–67. 7  Exodus 34:13. Note also Deuteronomy 7:5. Also, Kelle, B (2007) Ancient Israel at War (Oxford, Osprey) 74; Dawson, D (2001) The First Armies (London, Cassell) 205. 8  Ashurbanipal, noted in Timelife (1999) Persians: Masters of Empire (NYC, Time) 8–9.

Beginnings 213 Babylon. And they took away the pots, and the shovels, and the snuffers, and the dishes for incense and all the vessels of bronze used in the temple service, the firepans also, and the bowls. What was of gold the captain of the guard took away as gold, and what was of silver, as silver.9

Similar destruction was recorded elsewhere, such as that done by Xeres (519–465 BCE) when he had the Temple of Athena, destroyed to show the Greeks who the ultimate power was. The Greeks responded by building the Acropolis upon the ruins. Besides Athenian temples, the Persians also burnt temples on the islands of Chios, Lesbos, Tenedos and Euboa. When Mitetus was largely razed to the ground, the temple of Branchidae was specifically committed to the flames. Seeking to account for these events, Herodotus (484–425 BCE) commented, twice, that the Persians burnt Greek temples in reprisal for the burning of the Temple of Cybele at Sardis by Greeks earlier in the decade 490 BCE.10 Cumulatively, it has been estimated that between the years 1500 and 300 BCE in at least 51 Near Eastern cities, more than 233 libraries existed; of those, 25 date from the period between 1500 and 100 BCE, and 30 from the period 1000 to 300 BCE. All were reduced to ruins. Unfortunately, although not always related to acts of warfare, such destructions sometimes multiplied upon themselves over the centuries. Thus, when of some of the oldest known documents written in stone from the period of 840 BCE were dis­covered in 1868, they were blown up by local residents, so that more money could be obtained by selling off the one piece as thousands of pieces.11 Before the temples and cultural buildings were destroyed, they were looted, and whatever was valuable was removed. A good example of this was with the statues of the most important gods who were usually taken back to the temples of the victors. Records from the Ur dynasty (c 2100 BCE) record how the invading Elamites had no compunction in stealing the primary statues of the most important god (Marduk) during their capture of Babylon in 1595 BCE. This practice, especially of taking foreign deities (represented as statutes) as hostages was so widespread that some of the most important historical finds from Antiquity have turned up in countries which would have been miles from where the finds originated.12 The taking of statues was supplemented with the taking of important cultural items such as law codes. For example, Hammurabi’s Code, which ended up being found in modernity, was found thousands of miles from where it originally sat. The theory is that these transfers occurred because the items were taken as war trophies. Likewise with one of the oldest works of art known, the stele that commemorates Naram-Sin’s (c 2190–54 BCE) victory over the Lullubi, a people that lived in the Zargros mountains between modern day Iran and Iraq. The stele was kept in the city of Sippar (near the modern city of Baghdad) before it fell to the Elamites, who took the stele to their capital city Susa in Iran, where it was found by French excavators in 1898.13 After such removals, the temples of the defeated   2 Kings 25:8–15.   Herodotus 5.102, 6.101; Bury, J (ed) (1969) The Cambridge Ancient History. The Persian Empire and the West, 1st edn (Cambridge, Cambridge University Press) 227, 304. 11   Baez, F (2008) A Universal History of the Destruction of Books (NYC, Atlas) 24–28; Durschmied, E (2002) From Armageddon to the Fall of Rome (London, Hodder) 44–45; Kirsch, J (2004) God Against Gods (NYC, Viking) 74; van Wees, H (2009) Greek Warfare: Myths and Reality (London, Duckworth) 20. 12   Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 3rd edn, Vol III (Cambridge, Cambridge University Press) 69, 80, 180. 13   Miles, M (2008) Art as Plunder: The Ancient Origins on the Debate About Cultural Property (Cambridge, Cambridge University Press) 16; Dawson, D (2001) The First Armies (London, Cassell) 200; Saggs, H (1989) Civilisation Before Greece and Rome (NYC, Yale) 157; Edwards, I (ed) (1975) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380–1000 BCE 3rd edn (Cambridge, Cambridge University Press) 458–60. 9

10

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were often destroyed. Aside the fact that the temple was probably a physically strong building which was good for defence and was a hotbed of opinion, its destruction had the advantage of helping to break the will of the people as their ‘righteous house . . . [was] given over to the pickaxe’.14 In centuries to come, the Hymn to Ishbi-Erra, recorded in around 1750 BCE during the Third Dynasty of Ur, defined the objective of an attack ‘[b]y order of Enlil to reduce the country and the city to ruins . . . he had as their destiny the annihilation of their culture’.15 Most of the empires of this period also boasted openly of what they stole. Records from the Old Hittite Kingdom of around 1750 BCE recorded, inter alia: ‘On my way back I destroyed the land of Urshu and filled my house with their treasures’.16 The Egyptians left remarkably long and detailed records of the booty taken by their conquering pharaohs, of which Thutmose III (1479–25 BCE) and Ramses III (1186– 55 BCE) are notable.17 The Assyrians left many supplementary records on the looting they achieved and the equitable distribution of the rewards amongst the victors. Shalmaneser I (c 1280 BCE) boasted ‘as booty I seized their property’.18 Tukulti-Irta I (c 1250 BCE) is recorded as capturing the treasure of Babylon and Esagila, whilst Ashurbanipal recorded that he brought back so many camels after a war with Arabs that they sold for only one shekel apiece in Nineveh, and that even tavern-keepers received camels and slaves in payment for drinks.19 These practices were common throughout the region. For example, when Joash captured Jerusalem around 802 BCE he looted the temple and treasuries. This act was in accordance with Deuteronomy which was clear that if warfare was undertaken against other peoples, and they are subdued, after all the males had been put to the sword, then ‘the women and the little ones, the cattle and everything else in the city, all its spoil, you shall take as booty for yourselves’.20 This practice, which was buttressed by rules on distribution,21 is recorded elsewhere in the Bible. For example, the Book of Numbers records, And the children of Israel took all the women of the Midian captives, and their little ones, and took the spoil of all their cattle, and all their flocks, and all their goods . . . and they took all the spoil, and all the prey, both of men and beasts’.22 14   Kramer, S (1963) The Sumerians. Their History, Culture and Character (Chicago, University of Chicago Press) 142–44; Postgate, J (1996) Early Mesopotamia: Society and Economy and the Dawn of History (London, Routledge) 253–54. 15  The Hymn to Ishbi–Erra in Baez, F (2008) A Universal History of the Destruction of Books (NYC, Atlas) 22. Also, Luckenbill, D (1989) Ancient Records of Assyria and Babylonia, Vol I (London, Histories) 41, 67. 16  Edwards, I (ed) (1973) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380– 1000 BCE, 3rd edn, Vol II (1) (Cambridge, Cambridge University Press) 241. 17   Cohen, R (2000) Amarna Diplomacy: The Beginnings of International Diplomacy (John Hopkins University Press, Baltimore) 74–75; Dawson, D (2001) The First Armies (London, Cassell) 138; Thutmose III in Breasted, J (ed) (1988) Ancient Records of Egypt, Vol II (London, Histories and Mysteries) 185, 187, 188, 306–307. Ramses III in Vol IV, 26, 66; Edwards, I (ed) (1973) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380–1000 BCE, 3rd edn, Vol II (1) (Cambridge, Cambridge University Press) 434, 449, 450–52, 475–79. 18   Luckenbill, D (ed) (1989) Ancient Records of Asssyria and Babylonia (London, Histories and Mysteries) Vol I, at 39. 19  Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 101. 20   Deuteronomy 20:4. 21  ‘Know that one fifth of your spoils shall belong to God, the Apostle, the Apostle’s kinsfolk, the orphans, the destitute and those that travel the road’ Quran, The Spoils: 8.41. 22  Numbers 31:9. Also, Kelle, B (2007) Ancient Israel at War (Oxford, Osprey) 41.

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When Nineveh fell to the Babylonians in 612 BCE, conquerors returned the practice and carried off large quantities of booty, as did the Babylonian King Nebuchadnezzar (634–562 BCE) after sacking Solomon’s temple in Jerusalem in 586 BCE.23 It was around this point that the famed Tablets of Law kept in the Temple built by Solomon disappeared along with the other treasures from Solomon’s temple, which were all poured into the coffers of Amon of Thebes. This was not unlike the Holy Ark of the Covenant, which had disappeared with the Philistines when Jerusalem was sacked in 1010 BCE, although if the Maccabees is to be believed, it remains hidden in the secret cave that Jeremiah hid it in.24 In addition to the taking of property directly after a conflict, it was a clearly established practice that the subservient would also provide tribute to the victor, or their overlord, so as to maintain the peace. The expectation of tribute, and failure to pay it being a just cause for further war, is part of the background of some of the earliest Sumerian epics from the twenty-fourth century BCE. Both the Egyptians and the Assyrians adopted the practices of taking and claiming a steady stream of enemy property via ongoing demands of tribute. In both cases, failure to pay tribute was seen as good justification for invasion and punishment.25 The Bible recorded the practice at this point of history as being one where, if an opposing city opted for peace, rather than warfare, ‘it shall be that all the people that is found therein shall be tributaries unto thee, and they shall serve thee’.26 The Bible gave a number of instances of this, such as when Pul, the king of Assyria ‘came against the land’ and that Menahem gave him a thousand talents of silver to secure his kingdom.27 The Persians also came to place a great emphasis upon the payment of tribute and, where possible, the looting of enemy treasures. In this regard, their capture of the treasure of the Lydian king Croesus (595–547) was said to be so great, that they went on to base their coinage on gold, as Croesus had done.28 Although the destruction of cultural property may have been a practice of some of the victors from Mesopotamian warfare onwards, it was also from this epoch that the   Jeremiah 52:19. See also 1 Kings 14:26, 2 Kings 18:14–16.   2 Maccabees 2:5. See also Dawson, D (2001) The First Armies (London, Cassell) 178–79, 182; Kelle, B (2007) Ancient Israel at War (Oxford, Osprey) 56; Durschmied, E (2002) From Armageddon to the Fall of Rome (London, Hodder) 31. 25  Edwards, I (ed) (1971) The Cambridge Ancient History. Early History of the Middle East, 3rd edn, Vol 1 (2) (Cambridge, Cambridge University Press) 433, 486, 488; Edwards, I (ed) (1973) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380–1000 BCE, 3rd edn, Vol II (1) (Cambridge, Cambridge University Press) 385–87, 454–59, 469, 477–79; Edwards, I (ed) (1975) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380–1000 BCE, 3rd edn, Vol II (2) (Cambridge, Cambridge University Press) 138–39, 276–77, 459, 582; Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 8–11, 13–16, 20–21, 39, 55, 58, 72, 74–75, 124–25. 26   Deuteronomy. 20:11. The payment of such tribute is recorded elsewhere in the scriptures. Paid by Israel to Mesha, 2 Kings 3:4. Also, Kelle, B (2007) Ancient Israel at War (Oxford, Osprey ) 25. 27   2 Kings 15:19. See also 2 Kings 3:4. 28  Kramer, S (1981) History Begins at Sumer (Philadelphia, University of Pennsylvania Press) 21, 279; Kramer, S (1963) The Sumerians. Their History, Culture and Character (Chicago, University of Chicago Press) 53, 57; Cohen, R (2000) Amarna Diplomacy: The Beginnings of International Diplomacy (John Hopkins University Press, Baltimore) 127–33; Luckenbill, D (ed) (1989) ‘Ancient Records of Asssyria and Babylonia’ in Histories and Mysteries (London), Vol I, 17, 39, 57, 77, 101, 103, 111, 113–15, 131, 140, 145, 153, 155, 207, 209, 261, 263. See also Vol II, 32, 33, 77, 318–19, 361; Amenhotep III in Breasted, J (ed) (1988) Ancient Records of Egypt, Vol II (London, Histories and Mysteries) 360–61; Ramses II in Breasted, J (ed) (1988) Ancient Records of Egypt, Vol III, 190; Vol II, 160, 172–73, 178, 190, 205–206, 216, 300–301. 23 24

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first restraints in this area became operable, with victors, in some instances, declining to destroy the temples of subject people. This was especially so if they worshipped the same deities and wished to display their power by acts or restraint, protection and even enhancement of the cultural properties of the defeated. Whilst Sargon (2334–2279 BCE) was the first example of this, subsequent Assyrian kings such as Shalmaneser I, Esarhaddon (681–669 BCE) and Assurbanipal all left records in this regard. This practice also appears to have been followed in Egypt, with would-be conquerors such as Thutmose I (1506–1493 BCE) and Thutmose III both actively involved in the restoration of the temples of conquered opposition. In addition, with the storming of Memphis by the Nubian King Piankhi (741–712 BCE), the chronicles recorded that he was careful to protect the temples of the city during the conquest.29 However, the Egyptians did, through the monotheist Akhenaton (d 1334 BCE) introduce the practice of book burning and the destruction of heretical elements within their own culture. The great Persian kings, such as Cyrus (600–530 BCE) and Darius (550–486 BCE) were known for their protection of the religious sites of the conquered, even if they were of different faiths.30 Moreover, from this epoch, the first ever instance of the return of cultural property is recorded. After the Assyrian king Sennacherib (ruled 704–681 BCE) destroyed Babylonia in 689 BCE, the statue of Marduk, looted nearly 900 years earlier by the Hittites, was once again carried into captivity. However, in a world first, one of Sennacherib’s sons felt so bad about its capture, that in the first recorded instance of restitution in an international context, he returned Marduk to the original owners. Cyrus followed this precedent, overseeing the return to the Assyrians of looted Assyrian gods which the Medes had earlier taken to Babylon. Similarly, biblical authors depict Cyrus as sending them back 5,400 gold and silver vessels from the original Temple that Nebuchadnezzar had taken and dedicated in Babylon.31 However, it would be exaggeration to suggest that all Persians behaved in this way. For example, when Cambyses (600–559 BCE) finally subdued Egypt, he went to Sais, where he tore the mummy of Amasis from its sarcophagus and burnt it, stunning the local Egyptians. After his return to Memphis, he slew Apis the sacred calf and openly mocked at the religious customs of Egypt, treated the priests with violence, desecrated their temples and destroyed their religious images.32

29  Thutmose I in Breasted, J (ed) (1988) Ancient Records of Egypt, Vol II (London, Histories and Mysteries) 38, 122; ‘The Piankhi Stela’ in Breasted, J Vol IV at 435. The rest are in Luckenbill, D (ed) (1989) ‘Ancient Records of Asssyria and Babylonia’ in Histories and Mysteries, Vol II (London) 41, 67, 69, 269, 322, 356, 375. 30  Note the Darius Edict ‘Persian Tolerance of Greek Religion’ in Botsford, G (1915) Hellenic Civilisation Records (NYC, Columbia University) 62. See also The History of Herodotus in trans Rawlson, J (1909) (London, Dent) 8; Roux, G (1964) Ancient Iraq (London, Penguin) 353; Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 225; Bury, J (ed) (1969) The Cambridge Ancient History. The Persian Empire and the West, 1st edn (Cambridge, Cambridge University Press) 12–15, 185–88. 31  Ezra 1:9, 5:14. Roux, G (1964) Ancient Iraq (Penguin, London) 353; Dawson, D (2001) The First Armies (London, Cassell) 200; Edwards, I (ed) (1975) The Cambridge Ancient History. History of the Middle East and Aegean Region 1380–1000 BCE, 3rd edn, Vol II (2) (Cambridge, Cambridge University Press) 446, 459. 32  Bury, J (ed) (1965) The Cambridge Ancient History. The Assyrian Empire, 1st edn, Vol III (Cambridge, Cambridge University Press) 311; Bury, J (ed) (1969) The Cambridge Ancient History. The Persian Empire and the West, 1st edn (Cambridge, Cambridge University Press) 22.

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2.  The Greeks and the Romans

Whilst the civilisations of the Near East were giving instructions and displaying clear practice on the destruction of cultural property, the Greeks were doing the same for preservation and provided the first inter-State agreements in this area via the Amphictyonic League around 1110 BCE. This League was formed to support the pan-Hellenic temples of Apollo and Demeter and to help ensure that, inter alia, these areas were not attacked during times of warfare.33 Accordingly, attacks upon or within religious areas were seen with particular distaste, and in time to come, generals, such as Alcibiades (450–404 BCE) could lose command of armies because of their defacing of religious statues. Nevertheless, despite the injunctions, the practice of destroying the temples of their fellow Greek opponents remains clear in the writings of both Herodotus and Thucydides (460–395 BCE), with any charade of protected status for certain areas disappearing as entire cities and all of their cultural content were razed to the ground.34 In an attempt to reign in such practices, further inter-state agreements such as the Peace of Nicias in 421 BCE between Sparta and Athens, which established the independence of the Temple of Apollo, added that all Pan-Hellenic temples, and those who wished to visit them, were guaranteed security.35 Plato (428–348 BCE) spoke approvingly of such restraints within inter-Greek warfare, for to act otherwise ‘may be a pollution unless commanded by God himself ’.36 Dionysius I (432–367 BCE) showed such restraints, whilst the Greatest of all the Greeks, Alexander (356–323 BCE) often extended this approach with his respect of the sanctuaries, and those seeking safety within them, of foreign religions.37 It would be an exaggeration to suggest that such areas were completely sacrosanct, as these places sometimes proved too tempting to avoid. Dionysius once plundered 1,000 talents from a single Etruscan temple, twice as much as he made from his campaign against a nearby city. He is also said to have taken a gold mantle from the sanctuary of Zeus and he customarily took statutes of Victory, gold cups and crowns from the hands of statues of gods, saying that he was availing himself of these offerings.38 The defining line was clearly shown when the Athenian general Iphicrates (d 353 BCE) asked whether he should capture a valuable dedication en route to Delphi. The answer was ‘no need for theological inquiries, just make sure you feed your soldiers’.39 Sometimes, the destruction had nothing to do with the desire for economic rewards. For example, the Persian Royal Palaces at Persepolis were torched by the very hand of Alexander, either because he was drunk or because he was still angry about the acts of  Aeschines, The Orations trans Greaney, G (London, Mellen) 2.115.   The History of Herodotus in trans Rawlson, J (1909), Vol I (London, Dent) 1.106; Hedreen, G (2004) Capturing Troy (Michigan, University of Michigan Press) 23, 120–21, 123; Kagan, D (2003) The Peloponnesian War (NYC, Harper) 48, 114, 117, 167, 481; Robinson, P (2006) Military Honour and the Conduct of War (London, Routledge) 17. 35  The Peace of Nicias, 421 BC in Ferguson, J (ed) (1978) Political and Social Life in the Great Age of Athens: A Sourcebook (London, Open University Press) 68–69. 36  Plato The Republic in Jowett, B (ed) (1931) The Dialogues of Plato, Vol III (Oxford, Oxford University Press) 470. 37   Diodorus in trans Oldfather, C (1954) The Library of History (London, Loeb) 22.10.4. 38   Bury, J (ed) (1969) The Cambridge Ancient History. Macedon, Vol VI (Cambridge, Cambridge University Press) 129, 131. 39   van Wees, H (2009) Greek Warfare: Myths and Reality (London, Duckworth) 27–28. 33 34

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cultural destruction by Xeres I (519–465 BCE) centuries earlier. However, at Thebes, Alexander took care not to damage the sacred temples or the house of the author Pindar (552–443 BCE). He also repatriated to Athens at least four statues taken from that city to Persepolis when it was earlier sacked by Xeres. He also emptied the Persepolis of 12,000 talents of silver, which was added to the 40,000 talents of gold and silver he acquired and distributed amongst his troops when he took Susa. Although the Persian palaces had already been partly looted, Alexander managed to burn down one of the most magnificent libraries of Antiquity, which held the (only) Holy Book of Zoroastrianism. Philip V of Macedon (238–179 BCE), in his attempts to regain the power of Macedon, managed to rampage through the sanctuaries and cultural centres of Thermon, Athens, Attica and Pergamon. Such acts were, unfortunately, part and parcel of the period, although the acts of Philip do appear particularly aggressive. For example, in some instances, he was not content with destroying buildings, and went so far as to have the very stones broken to prevent their reconstruction. However, the real exemplar of this period was the Celtic invasion of Greece in 279 BCE, at which point Delphi was sacked and looted, making off with a treasure that had been collected over centuries. Aside the material values, the collective losses from this epoch were so great that when dealing with intellectual legacies of this period even the most optimistic estimates calculate that 75 per cent of Greek literature, philosophy and science have been lost.40 The collection of spoils was part of the Greek ethos of warfare. The oldest Greek legends consist largely of the exploits of heroes engaged in inter-tribal cattle raiding. The war against Thebes is said by Hesiod (c eighth century BCE) to have been waged for the sake of the flocks of cattle.41 However, ‘the love of gain’42 as Thucydides called it was rarely the primary condition for war or its warriors, although it was clearly part of the mix of motives and rewards. It was a practice that was sanctioned by the Greek gods,43 heroes,44 key philosophers such as Socrates (469–399 BCE),45 and Aristotle (384–322 BCE). The latter argued ‘war is strictly a means of acquisition’.46 Plato suggested that the need of humans to continually acquire material things (‘the dainties and perfumes, incense and cake’) was ‘the origin of war’.47 Other commentators and actors alike such as Xenophon (430–354 BCE) and Alexander the Great recognised practices such as looting after a conflict as being in strict accordance with the laws of 40  See Arian The Campaigns of Alexander trans de Salincourt, A (1977) (London, Penguin) 1.8.8; 1.9.9; Also Diodorus in trans Oldfather, C The Library of History (1954) (London, Loeb) 17.46.4, 17.96.3.5; McCrindle, J (1896) The Invasion of India By Alexander the Great, 1969 edn (New York, Barnes) 31, 33; Baez, F (2008) A Universal History of the Destruction of Books (NYC, Atlas) 38; Austin, M (ed) (1992) The Hellenistic World From Alexander to the Roman Conquest: A Collection of Readings (Cambridge, Cambridge University Press) 20–21; Ellis, P (1990) The Celtic Empire (London, Guild) 81–86. Lendon, J (2005). Soldiers and Ghosts, A History of Battle in Classical Antiquity. (NYC, Yale University Press) 80–83. 41  Hesiod Theogony, Works and Days, and Elegies trans Wender, D (London, Penguin)163; Illiad trans Rieu, EV (1993) (London, Penguin) 11: 670–84; Jackson, A (1995) ‘War and Raids for Booty in the World of Odysseus’ in Rich, J and Shipley, G War and Society in the Greek World (London, Routledge) 64. 42  Thucydides The History of the Peloponnesian War: Revised Edition trans Warner, R (1999) (London, Penguin) i. 8.3. 43  Homer, The Odyssey trans Rieu, E (1984) (Penguin, London) 14:249–51, 14:83–8; cf 9:196–205. 44  Homer, The Odyssey trans Rieu, E (1984) (Penguin, London) 14: 230–34. 45  Homer, The Odyssey trans Rieu, E (1984) (Penguin, London) iii. 6.7. 46  Aristotle Politics trans Everson S (1996) (Cambridge, Cambridge University Press) Section 1256. 47  Plato, The Republicin Jowett, B (ed) (1931) The Dialogues of Plato, Vol III (Oxford, Oxford University Press) 373de.

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war. Xenophon explained: ‘For the law among all people is eternal, that when a city is captured by enemies, both the bodies of those in the city and their goods belong to those who capture it’.48 Alexander added ‘We should pray that our enemies are provided with all good things except courage; for these good things will belong, not to their owners, but to those who conquer them’.49 The Greek armies also developed detailed rules of distribution. These rules worked at both the macro and micro level. At the macro level, early treaties between the Cretan cities focused on the division of spoils taken in shared combat. At the micro level, soldiers were meant to hand over the booty they collected which was considered a type of common property to be divided equitably after the conflict so ‘that nobody was cheated of his fair share’.50 The Greeks also had an advanced understanding of the idea of tribute. In the Greek context, the idea of tribute started off being something paid by allied states for a common goal. This was clearly portrayed in Hellenistic Greece and the rise of Athens within the Delian Confederacy, whereby tribute was imposed upon those who lost conflicts and had not merely opted for a paid-out peace.51 The Romans, whilst accepting the idea of military necessity to destroy defended areas, considered, to quote Polybius (203–120 BCE) that ‘to deface temples, statues and such like . . . must be regarded as an act of blind passion and insanity’.52 Through Roman eyes, such acts were typically associated with the enemies of civilisation such as pirates or their inveterate enemies, including their particular nemesis, Hannibal (248– 183 BCE). At one end of the extreme, the Romans were known to have left entire towns completely undamaged but emptied of people as an effective mausoleum. At the other end of the extreme, they were known to have undertaken acts of utter destruction of the cities of their opposition, as the rubble of Carthage would come to testify.53 In most instances, the Roman practice was somewhere in between, and there being no clear line of when important cultural property could, or could not, be destroyed. Even in their own civil war, the Capitoline temple and the sanctuary of Jupiter were both burnt to the ground. Given the lack of restraint with their own cultural property, it was not surprising that the cultural property of others could be destroyed, including entire cultural centres, such as Corinth, as Cicero (106–43 BCE) noted, if for military necessity.54 Such situations led to some scholars like Augustine (354–430) contending that the lack of respect for the cultural property of enemies was the norm, not the exception for Romans.55 The difficulty with this analysis is that Roman history has a number of  Xenophon Cyrus the Great trans Hederick, L (1978) (NYC, Random) Section 7.5.73.  Plutarch, of the Life of Alexander the Great, trans Dryden, J (1955) (NYC, Random). Section 2.336 a. 50  Homer, The Odyssey trans Rieu, E (1984) (Penguin, London) 9: 39–42. Ill.i.122. Ill. 9: 529–49; Thucydides 1.5; van Wees, H (2009) Greek Warfare: Myths and Reality (London, Duckworth) 15. Note, this rule also applied with ancient pirates. See Ormerod, H (1987) Piracy in the Ancient World (NYC, Dorset) 52–53. 51   Meritt, B (1939) The Athenian Tribute Lists (Cambridge, Harvard University Press) 23–49; Botsford, G (ed) (1929) Hellenic Civilisation: Records of Civilisation (Columbia University Press) 267–70; Reassessment of Tribute in Ferguson, J (ed) (1978) Political and Social Life in the Great Age of Athens: A Sourcebook (London, Open University Press) 53–56, 65; Bury, J (ed) (1969) The Cambridge Ancient History. Athens, Vol V (Cambridge, Cambridge University Press) 79, 83, 171. 52  Polybius The Histories trans Waterfield, R (1973) (Oxford, Oxford University Press). v.ii; ] Diodorus in trans Oldfather, C The Library of History (1954) (London, Loeb) 13.58.2, 13.62.1–4, 13.90.1–4, 13.108.2. 53  Livy The History of Rome trans McDonald, A (1946) (London, Penguin) 26.16.11, 31.29.11. 54  Cicero On Duties trans Atkins, S (1991) (Cambridge, Cambridge University Press). Section i.xi.35–36. Tacitus The Histories in trans Wellesley, K (1975) (London, Penguin) 190. 55  Augustine City of God in trans Healey, J (1945), Vol I (London, Everyman’s Library) 4–5. 48 49

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examples such as, inter alia, with Scipio Africanus the Elder (235–183 BCE) and his conflicts with the Carthaginians, Sulla (138–78 BCE) and his siege of Athens (although he did allow the groves of the Academy and Lyceum to be cut down to repair his siege engines), and Titus Flavius Vespasianus (39–81) whereby all three military leaders showed attempts at restraint of damaging foreign cultural property, although Titus, with his destruction of the Jewish Temple, failed spectacularly.56 The follow-through acts of Hadrian (76–138) in building the Temple of Jupiter in its place in Jerusalem, as he did in Britain on top of the sanctuaries of the Druids, are less worthy of approbation. This appears to have been a common practice as the towns and settlements of ‘barbarians’ were often destroyed by conquest, disappearing under arable land or being replaced by Roman buildings. Moreover, it should be remembered that the Romans were also quick to destroy the works of authors they disapproved of. Augustus alone had more than 2,000 Greek and Roman works he did not like burnt for ‘reasons of State’. In addition, the entire Punic language, along with all of their literature and most of their history, was also lost when the Romans finally destroyed the Carthaginian Empire, as was that of the Dacia, who lost all of their literature and independent cultural identity. At other times, the destruction appears to have been unintended. For example, when Caesar ordered Pompey’s navy of 72 ships which was in the quays of Alexandria to be burnt, part of the city caught fire, and with it, parts of the greatest library known to history.57 The Romans, with their fine legal minds, understood the ownership of property of conquered people perfectly and absolutely. Livy (59 BCE–17 AD), recorded a standard format for a surrender to Rome as: ‘Do you surrender the [name] people, the city, fields, water, boundaries, shrines, utensils, all things divine and human into the dominion of . . . the Roman people?’58 If they accepted these terms, according to Polybius, then the victors ‘become masters of absolutely everything and those who surrender remain masters of absolutely nothing’ beyond the discretion of the victor.59 This situation was well illustrated by Livy who retold how when the Gauls sacked Rome in earlier centuries, it was agreed that booty of 1,000 pounds of gold would be paid to them. However, when the weights were being established to finalise the transaction, the Gallic chief decided to add his sword to the weights, adding the words ‘woe to be conquered’.60 Although this was a distasteful situation, such a practice was recognised as being in strict accordance with the laws of war. As such, aside concerns that the taking of spoils was beneath Roman honour, the general rule was that so long as the spoils were not obtained by trickery such as looting allies or in violation of the terms of a surrender, then it was lawful to take them. If the property was obtained unlawfully or wrongfully, such as when the 56  Livy The History of Rome 29.8–9; 29.8-9; Appian ‘Roman History’ in The Civil Wars trans Carter, J (1996) (London, Penguin) 8.19.127 and 8.20.133–35; Josephus The Jewish War trans Radice, P (1984) (London, Penguin) 6 130–47; 149–60; 177–85; 193–213; 220–22; 223–27; 281; 321. 57   Webster, G (1978) Boudica: The British Revolt Against Rome AD60 (London, Anchor Press) 87, 89; Purchell, N ‘Hadrian: Beyond the Wall’ BBC History (July 2005) 32–33; Baez, F (2008) A Universal History of the Destruction of Books (NYC, Atlas) 76–77; Jones, T (2006) Barbarians: An Alternative Roman History (London, BBC Books) 38, 155; Cook, S (ed) (1966) The Cambridge Ancient History: The Roman Republic, Vol IX (Cambridge, Cambridge University Press) 671. 58  Livy The History of Rome 1.38.1. 59  Polybius The Rise of the Roman Empire trans Scott-Kilvert, I (1980) (London, Penguin), Xxxvi.iv.1–3. 60  Livy The History of Rome 5.48, 8–9.

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temples of Locri were sacked following the second Punic War by an uncontrolled Roman army, the Senate ordered the restoration of the looted property.61 The men who fought under the Roman Standards came to see the procurement of wealth from foreign enemies as a natural source of income and actively desired and sought out the property of defeated enemies. Such property benefited individuals and the Roman State alike, both economically and culturally as objects of great religious and artistic value flowed into Rome and the surrounding provinces. In some instances, it appears attacks were actually made solely due to a desire to acquire the economic rewards associated with the spoils, but in practice, it appears spoils were more often than not secondary considerations for conflict. Nevertheless, for the ordinary soldier, the appeal was great and the consuls, eager for favourable declarations of war, would persuade the people to go to war by reminding them of the ‘great gain which clearly accrues to every individual citizen from the spoils of war’.62 This draw was very attractive to the average citizen. For example, with the fall of Veii (396 BCE), the Roman general Camillus was so sure of great booty that he suggested that the rank and file be allowed to pillage as they wished, contrary to normal distribution rules. When the Senate agreed, it being good for their popularity, half of the population of Rome arrived on the battlefield in anticipation of rewards taken from other people’s property. Such desires also created a momentum to sack a defended area, rather than receive a negotiated settlement, for as Tacitus noted: ‘When a city was stormed, its booty fell to the troops; when surrendered, to the commanders’.63 From the ideals of such precepts, the soldiers and the captains would loot freely the conquered territories. In many instances this would include objects of cultural, artistic and/or religious value. The spoils taken from the Celtic capital of Tolosa by Servilius Caepio in 107 BCE involved more than 15,000 bars of gold at 15 pounds each and 10,000 bars of silver at the same weight. These valuables were a combination of what was taken from the Celtic temples, and the treasures taken from by the Celts when they sacked the Delphi the century beforehand.64 When Roman soldiers sacked Jerusalem in 70 AD, Josephus recorded: [T]he most interesting of all were the spoils seized from the temple of Jerusalem: a gold table weighing many talents, and a lampstand also made of gold . . . the law of the Jews was borne along after these as the last of the spoils.65

Most famously, a golden seven-branched candlestick was taken by Titus. A replica, hewn in stone, can be seen on his triumphant arch in Rome. When Dacia was subdued by Trajan (53–117), he recorded that he brought back 1,650 tons of gold and 3,310 tons of silver to Rome. So prodigious was the amount of booty brought back by Trajan that the bottom fell out of the gold market and its price plummeted throughout the Empire. Similarly, when Octavian (63 BCE–14 AD) captured the treasures of Cleopatra VII (69–30 BCE), the standard rate of interest in Rome fell from 12 to 4 per cent. Similar activities, such as the Roman fascination with Egypt and their obelisks in   Livy 29.8–9; 29.8–9; 31.20.2; 38.9.13–14; Polybius, The Histories 9.10; 21.29–32.  Polybius The Rise of the Roman Empire 51. 63  Tacitus The Histories in trans Wellesley, K (1975) (London, Penguin) 156. Also, Livy 4.49.9–50.6; 5.22.3–7; 6.4.11; 10.17.1–10; Champion, C (2004) Roman Imperialism (London, Blackwell ) 24, 26–27, 100, 147; Goldsworthy, A (2003) The Fall of Carthage (London, Cassell) 294–95, 323. 64  Ellis, P (1990) The Celtic Empire (London, Guild) 122–25. 65  Josephus The Jewish War trans Radice, P (1984) (London, Penguin). 61 62

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particular, would result in a transfer of such magnitude, that even 2,000 years later there remain more obelisks in Rome than Cairo. When Tarentum fell in 212 BCE, the city was looted of everything of value, including the colossus bronze statue of Herakles. The base of this statue is still preserved in the Capitoline Museums, but the statue was taken off by Constantine I (272–337) to Constantinople in 325 to decorate his Basilica. It was, however, taken during the Crusader attack on Constantinople in 1204 and melted down for the value of its metal. Lucius Sulla (138–88 BCE) acquired in his wars a Hercules by Lysipis, which had once belonged to Alexander before passing into the hands of Hannibal. He had Aristotle’s library removed from Greece for his own personal use, and also stole a small golden Apollo from the Delphi, which never left his side. He is also alleged to have taken some columns from the Temple of Zeus Olympois, which, perhaps, ended up in the Temple of Jupiter on the Capitoline in Rome. Lucius Aemilius (229–160 BCE) commandeered the library of Perseus, King of Macedon.66 The spoils from foreign conquests were brought back to Rome and displayed in sumptuous public processions before being equitably divided up. Although, on occasion, commanders lost control and the soldiers went mad over loot, creating an extreme lack of discipline and military disadvantage, the orderly collection and division of the booty was the desired goal. Scipio Marcus Cato (234-149 BCE), Aemilius Paullus (229–160 BCE) and Lucius Mummius (second century BCE) are all notable in this regard. Mummius is particularly notable as he was also lavishly praised by Cicero for ‘adorning’ Italy with the spoils from Corinth. In fact, more inscriptions are preserved documenting his gifts in more places in Italy, Rome and sanctuaries in mainland Greece than from any other Roman general of the Republic. This point was an important one, for to provide the loot for the benefit of others and the State was seen as praiseworthy, as opposed to the unrestrained looting by a commander for their own personal benefit, of which Verres (120–43 BCE) was reviled by Cicero, for looting the temples of Syracuse for his personal benefit although the looting in 213 BCE of all of the other treasures that Syracuse had acquired during three centuries of high culture was seen as lawful. However, the exemplar of this period was Scipio Africanus (201 BCE). Scipio Africanus avoided the uncontrolled looting of religious sanctuaries, took nothing for his own personal benefit and gave generously of the spoils to only his soldiers and the temples of Rome. However, most unusually, some of the booty Scipio took from Carthage he repatriated to the communities from where it had originally been stolen, allowing envoys from communities that had been sacked by the Carthaginians up to hundreds of years earlier to come and claim back their cultural property. Octavian later did a similar act, travelling through the Syria and Asia Minor, restoring to the cities of Asia most of the works of art carried off by Antony.67 Such approaches were, on occasion, required by treaty. Thus, the Treaty of Apamea of 188 BCE between the Roman Republic and Antiochus III (241–187 BCE) of the 66   Jones, T (2006) Barbarians: An Alternative Roman History (London, BBC Books) 114, 125; Chamberlin, R (2003) Loot: The Heritage of Plunder (London, Sutton) 27; Miles, M (2008) Art as Plunder: The Ancient Origins on the Debate About Cultural Property (Cambridge, Cambridge University Press) 68–69, 88–95. 67  Livy 9.31.4–5; 25.30.12; 26.48.5–13; 30.45.3–4; 33.30.1–9; 34.35.1–11; Polybius The Histories 10.15.4–16.9. 10.16–17; Champion, C (2004) Roman Imperialism (London, Blackwell) 21, 22, 205; Treue, W (1961) Art Plunder: The Fates of Works of Art in War and Unrest (NYC, Day) 13–17; Miles, M (2008) Art as Plunder: The Ancient Origins on the Debate About Cultural Property (Cambridge, Cambridge University Press) 64–74, 96–98; Cook, S (ed) (1971) The Cambridge Ancient History. The Augustan Empire, 1st edn, Vol X (Cambridge, Cambridge University Press) 113.

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Seleucid Empire, Antiochus was obliged to not only evacuate a number of cities, lands and villages he had occupied, but in doing so, it was added, from ‘all such places he is to carry away nothing except the arms borne by his soldiers, and if anything has been carried away, it is to be restored to the same city’.68 The acquisition of spoil was often facilitated by detailed rules that provided for the division of spoils at both the micro and macro levels. At the micro level, every soldier was entitled to something in accordance with his rank. At the macro level, entire regions could be divided up by treaty in advance of their conquest. For example, with the Cassian Treaty of 493 BCE between Rome and Latium, it was agreed that each side would ‘have an equal share of the spoils and booty taken in their common enterprises’.69 Likewise, with the treaty of alliance with the Aetolians of 238 BCE, it was agreed the Aetolians could keep the booty fixed to the land (buildings, territory and so on) whereas the Romans would have ‘every other kind of booty’.70 The final possession of the property of the conquered would often be in the form of tribute. Sometimes, such as when Rome defeated Philip V of Macedon, they would not insist on claiming tribute from the defeated, in an attempt to win them over or enlist them as allies. However, this approach was the exception, and the usual practice, concluded in treaty form, involved the vanquished agreeing to hand over economic resources after the peace was concluded. This, in large part, reflected the Roman expectation that the losers would contribute towards the cost of their war effort, or that the tribute was the price of peace. The Romans had been the victims of this approach in 390 BCE, when they had to pay the Celts a sum of 1,000 pounds (in weight) of gold to withdraw from Rome. The Romans came to replicate the same practice and saw the acceptance of tribute from a threatened or defeated enemy as the price of peace, or as Caesar warned, af they wanted peace, they were not likely to obtain it by refusing tribute’.71 Indeed, part of the catalyst for the Jewish war, was the non-payment of tribute, in accordance with what had been agreed in advance. Such advance agreement was often recorded in treaty. For example, with the peace treaty between Rome and Carthage of 241 BCE, the Carthaginians not only agreed to the annexation of Sicily and Sardinia, they also agreed to pay the then substantial amount of tribute of 3,200 Euboean talents over a 20-year period.72 By the time of the Peace Treaty Between Rome and Carthage of 201 BCE, they were obliged to pay 10,000 talents over 50 years.73 Likewise, with the treaty ending the Second Macedonian war, an indemnity of 15,000 talents had to be paid to Rome. Variations on the amount of talents paid were dependent on the size and stature of the enemy. When Crete was subdued, they were only obliged to pay 4,000 talents, whilst when Antiochus III was subdued in 188 BCE, he agreed to pay to Rome both money and food. Accordingly: 68  This treaty is recorded in Polybius The Histories trans Waterfield, R (1973) (Oxford, Oxford University Press) 21.42. 69  The Cassian Treaty in Champion, C (ed) (2004) Roman Imperialism (London, Blackwell) 72. 70  Roman Alliance with the Aetolian League in Lewis, N (ed) (1990) Roman Civilisation Sourcebook (NYC, Harper) 170. 71   Caesar’s War Commentaries, in trans Warrington, J (1955) (London, Dent) 24; Cook, S (ed) (1971) The Cambridge Ancient History. The Augustan Empire, 1st edn, Vol X (Cambridge, Cambridge University Press) 855–857; Ellis, P (1990) The Celtic Empire (London, Guild) 30–31. 72   Peace Treaty between Rome and Carthage of 241 BC in Lewis, N, above n 70, at 153. 73  Peace Treaty with Carthage, 201 BC in Lewis, N (ed) (1990) Roman Civilisation Sourcebook (NYC, Harper) at 171.

224  Property Antiochus shall pay to the Romans twelve thousand talents a year, the talent not to weigh less than eighty Roman pounds, and five hundred and forty thousand modii of corn: [or] in lieu of the corn, – one hundred and twenty-seven talents and twelve hundred and eight drachmas.74

3 .  The Dark Ages

The Dark Ages or Early Middle Ages is typically seen as the period of European history lasting from the collapse of the Western Roman Empire until the year 1000. This period, commonly linked to cultural decline, began before the Western Empire had fully collapsed and had started to disintegrate from within. This problem was obvious both inside and outside of the Empire. Outside of the Empire, notable acts by the Goths as they rampaged through Greece around 250 AD involved the intentional destruction of the Temple of Diana/Artemis at Ephesus, which was one of the seven wonders of the Ancient world. This was a sacred and magnificent structure supported by 127 marble columns, each 60 feet high. Beneath its roof, the altar was adorned with the masterly sculptures of Praxiteles (c 360 BCE), who had recreated a number of the Greek myths in marble. Successive empires, the Persians, Macedonians and Romans had all revered its sanctity and enriched its splendor. This was not the way of the Goths, who in 252 destroyed what they saw as foreign superstitions. They then went on to Athens, collected all of the libraries and were going to destroy them all. They only stopped in this latter action, due to a belief that if they left the Greeks their books, they would remain effeminate warriors. Inside the empire, the process of destroying cultural property continued as Christianity spread. Thus, when the Temple of Diana/ Artemis was rebuilt, Saint John Chrysotom led a mob in 401 to ensure that nothing but rubble remained. Such acts were not unusual to the period as religious fervor reached new levels of intolerance. Whilst some emperors, such as Julian (331–363), attempted tolerance and restraint; others, such as Constantine (272–337), facilitated a process that began with the banning of heretical books and ended with the destruction or conversion (such as with the Pantheon in Rome) of pagan temples and, unlike the book burners of earlier civilisations, ended up also burning the authors. The ‘instruments of idolatry’ (including many of the most splendid monuments and statues of Antiquity) were also destroyed, along with numerous sacred groves. For example, Charlemagne (742–814) destroyed the Irminsul, the great tree trunk that supported the heavenly vault for the Saxons. Perhaps he had in mind the precedent of Boniface (672–715) who had destroyed the Donar Oak at Geismar.75 Pope Gregory the Great (540–604) tried to suppress the works of Cicero and is said to have burnt all manuscripts of Livy that he could get his hands on. The one remain74  The treaty with Antiochus is recorded in Polybius The Histories trans Waterfield, R (1973) (Oxford, Oxford University Press). 21.42. The other figures can be found in Cook, S (ed) (1966) The Cambridge Ancient History. The Roman Republic, Vol IX (Cambridge, Cambridge University Press) 200, 258–60, 375; Cook, S (ed) (1971) The Cambridge Ancient History. The Augustan Empire, 1st edn, Vol X (Cambridge, Cambridge University Press) 87; Goldsworthy, A (2003) The Fall of Carthage (London, Cassell) 129, 321. 75   Kirsch, J (2004) God Against Gods (NYC, Viking) 184; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 325; Gibbon, E (1926) The Decline and Fall of the Roman Empire (London, Methuen) Vol 1, 288–89; Vol III, 207–10; Wallace, J (1962) The Barbarian West: The Early Middle Ages (NYC, Harper) 102– 103.

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ing bronze statue of Marcus Aurelius survived only because the image was mistakenly thought to be that of a Christian. Other works, of which there could be no mistake that they were Roman, such as The Sibylline Books (a collection of oracular utterances, purchased from a sibyl by the last king of Rome, Tarquinius Superbus, and consulted at momentous crises through the history of the Republic and the Empire) were deliberately destroyed by the Christian Emperor Stilicho (359–408). With similar fervour, some emperors like Theodosius I (346–395) would allow legionnaires to destroy the great pagan places such as the Temple of Zeus or turn a blind eye whilst angry Christian mobs would destroy first the Serapeum, and then the ancient library in Alexandria in 391, where some 700,000 scrolls of the greatest rarity from all over the known world, which had survived the flames of Caesar, were held. However, it should be noted that the Christians, acting alone, were probably not responsible for the total loss. Indeed, the attack by Julius Caesar in 48 BCE destroyed some 40,000 scrolls when he tried to burn out the Egyptian navy and part of the library caught fire by accident. The Islamic conquests in the seventh century sealed the fate of whatever was left. At this point, Omar I (586–644), Mohammed’s second successor, allegedly instructed his general who was pondering what to do with the museum library of Alexandria: With regard to the books you mention, here is my answer. If the books contain the same doctrine at the Koran, they are useless because they merely repeat; if they are not in agreement with the doctrine of the Koran, there is no reason to conserve them.76

In times of conflict within this period, if property was not destroyed, it continued to be looted in accordance with the traditions preceding this period. An underlying facet of this period was that, whilst the Roman soldier was paid, kept and ultimately pensioned off, the same could not be said of the coming generations of fighters. For many of these men, their living would be derived from what they could take from the battlefield and then share equitably amongst the victors. The great Barbarian conquerors, such as Alaric (370–410), Attila (406–453), and Genseric (389–477) were primarily motivated by booty, pillage and prize. Neither Alaric nor Attila had bothered to find substantial pretexts for their aggression. The reputation of Rome, the value of their lands and the lure of the property and possessions they contained were not enough for any Barbarian seeking plunder. When Alaric marched on Noricum (central Austria), in 408 he received compensation of 4,000 pounds of gold not to sack the city. When he encamped outside Rome the following year, for the promise not to sack the city he demanded all of the gold and silver of the city, whether it were the property of the State or individuals, which equated to 5,000 pounds of gold and 30,000 pounds of silver. He also demanded and took 4,000 silk robes, 3,000 purple coloured furs and 3,000 pounds of pepper. This time, his offer was refused, and when the Goths gained entry to Rome, his men looted everything except the churches. Attila demanded, inter alia, an original payment of 4,350 pounds of gold and subsequent payments of 700 pounds per year if peace was to be maintained with the Romans. When this treaty fell and the Huns subsequently gained Naissus (around 450), Attila offered peace on condition that they were given 6,000 pounds of gold in compensation for previously unpaid tribute, and a further 2,100 pounds annually. If such offers were refused, war 76  Omar noted in Baez, F (2008) A Universal History of the Destruction of Books (NYC, Atlas) 50–51. See also Kirsch, J (2004) God Against Gods (NYC, Viking) 265–80; Jones, T (2006) Barbarians: An Alternative Roman History (London, BBC Books) 31.

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would be enjoined and the losers would be at the will of the victor. When Genseric summoned Carthage to surrender in 435, all of the inhabitants were ordered to hand over all of their gold, silver, jewels and other valuables to his officers. He warned that any attempt to hide valuables would be seen as an act of defiance, and would be met with execution. When the Vandals sacked Rome in 455, they systematically stripped the city of its wealth over a 14-day period, but this time added the booty of the churches. The gold and silver ornaments from the churches, the statues from the palaces, the treasure that Titus has carried from Jerusalem, even half of the gilded roof from the Temple of Jupiter Capitolinus were all taken to enrich modern Carthage. The situation, as summed up by Augustine when speaking of the desecration of temples by Barbarians, was that: ‘All the spoils that were plucked from the gods and flaming temples were carried, not to be bestowed back to the vanquished, but to be shared amongst the vanquishers.’77 This period is also replete with examples of where the cultural property of others was not looted, but destroyed, with the names of some Barbarian groups, like the Vandals, living on to become synonymous with mindless damage. In other parts of Europe, some of the few lights of learning were nearly extinguished by Norse invasions. For example, the clear progress of Celtic and Christian civilisation was halted and Celtic literature and culture generally suffered an irreparable loss in the burning and looting of monastic centres with their precious books and treasures.78 In some instances, the devastation was intentional. For example, Alaric destroyed the great temple of Demeter at Eleusis, ravaged the Argolid and sacked Sparta and the rich cities of the central Plain. He did, however, despite looting all movable property within all religious areas when he seized Rome in 410, show a clear restraint against destroying such places, ordering the protection of them and all of the religious items within them. Nevertheless, the papyri from all the libraries of Rome were all taken and burnt, to help illuminate the rape and orgies that Rome had to endure. When the Vandals took Rome in 455, they removed everything the Goths had left behind, or that which had been replaced, after 410. The ‘shiploads’ of material taken to Carthage was later recorded as one of the greatest art removals ever undertaken, including the Lychnuchus of Solomon and the statue of the Capoline Zeus. However, although they looted the city, they left the buildings standing. This was unlike their actions when, with their fanatical Christian views, by 433 in the Eastern Empire, they managed to leave only three major churches at Hippo Rigius, Carthage and Cirta intact.79 Others, such as Totila (d 552), King of the Ostrogoths, despite his intention to turn Rome into ‘a sheep 77  Augustine City of God in trans Healey (1945), Vol 1 (London, Everyman’s Library) 6. Also, Jones, T (2006) Barbarians: An Alternative Roman History (London, BBC Books) 139, 141; Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 161, 163; Durschmied, E (2002) From Armageddon to the Fall of Rome (London, Hodder) 398–401; Laing, J (2000) Warriors of the Dark Ages (London, Sutton) ix, 2, 70; Man, J (2005) Attila the Hun (London, Bantam) 146–49, 155, 165, 190–92; Elton, H (1997) Warfare in Roman Europe (Oxford, Oxford University Press) 189–90; Contamine, P (1984) War in the Middle Ages (Oxford, Blackwell) 262. 78   For the Viking legacy in this area, see Griffith, P (1995) The Viking Art of War (London, Greenhill) 16–24; Roche, R (1995) The Norman Invasion of Ireland (Dublin, Anvill) 44–45; Baker, D (1966) The Early Middle Ages: Portraits and Documents (London, Hutchinson) 27. See Ravages of the Northmen in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 9. 79  Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 123, 134, 166; Durschmied, E (2002) From Armageddon to the Fall of Rome (London, Hodder) 385; Laing, J (2000) Warriors of the Dark Ages (London, Sutton) 24.

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run’, was persuaded to act otherwise by the advocacy of Belisarius (500–565) who was one of the greatest generals of the Eastern Roman or Byzantine Empire. He addressed to him the following letter which is worth reproducing in full: Fair cities are the glory of the great men who have been their founders, and surely no wise man would wish to be remembered as the destroyer of any of them . . . Slowly and gradually each succeeding age has reared its monuments. Any act, therefore, of wanton outrage against the city will be resented as an injustice by all men of all ages: by those who have gone before us, because it effaces the memorials of their greatness; by those who shall come after, since the most wonderful sight in the world will no longer be theirs to look upon . . . If you should prove to be the conqueror, how great will be your delight in having preserved the most precious jewel in your crown. If yours should turn out to be the losing side, great will be the thanks from the conqueror for your preservation of Rome, while its destruction would make every plea for mercy and humanity on your behalf inadmissible. And last of all comes the question what shall be your own eternal record in history, whether you will be remembered as the preserver or the destroyer of the greatest city in the world.80

The Vikings began their western conquests in 793 with their attack on Lindisfarne where they ‘carried off all the treasures’. Attacks on other monasteries and centres of economic wealth followed in quick succession in the coming decades. This approach was driven by an overwhelming desire for spoils, often without consideration of their non-economic values. For example, the Codex Aureus was looted by the Vikings who stripped it of its golden jewelled cover, but because they had no use for its illuminated manuscript inside, they sold it back to an Anglo-Saxon nobleman named Alfred of Surrey around 870 for more gold, and it was restored by him to Canterbury Cathedral. Such practices of theft and ransom were supplemented by demands for tribute or warfare in most of the countries the Vikings invaded. For example, in France, the visitors promised to leave in consideration of the sum of 12,000 pounds (in weight) of silver. The siege of Paris was lifted for the bargain price of only 700 pounds of silver. Across the Channel, one of the greatest Old English poems, The Battle of Maldon, recorded the battle in 991 between Viking raiders and the then English leader of Byrhtnoth, who was presented with the Viking’s demand in the following terms: Bold seamen send me to you, and bid me say that you must speedily buy safety with treasure; far better is it for you to buy off this battle with tribute than we should deal in bitter warfare. We need not destroy each other if you are generous to us; we are ready to establish peace for gold.81

Byrhtnoth (d 991) refused this offer and opted for the battlefield, at which his blood was spilt. After this loss a treaty was concluded that paid off the invaders with 22,000 pounds of gold and silver. This was the thin end of a very large Viking wedge, which would, by the year 1018, result in a staggering 240,500 pounds of gold and silver being paid over in tribute, including a final payment of 18,500 pounds to recompense the Danish army with which Cnut (985–1035) had conquered England. Of course, it was not only the Vikings who pillaged England. After the Norman Conquest, English art 80   Belisarius, noted in Fuller, J (1945) Armaments and History (NYC, Scribner) viii. See also Gibbon, E (1926) The Decline and Fall of the Roman Empire, Vol IV (London, Methuen) 432–33, 437. 81   The Battle of Maldon cited in Wood, H (2008) The Battle of Hastings (London, Atlantic) 12, 70; Baker, D (1966) The Early Middle Ages: Portraits and Documents (London, Hutchinson) 52, 62, 63; Griffith, P (1995) The Viking Art of War (London, Greenhill) 16, 81, 94; Gwatkin, H (ed) (1957) The Cambridge Medieval History. Germany and the Western Empire, Vol III (Cambridge, Cambridge University Press) 59, 61, 325, 382–83.

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treasures, particularly those made of gold and silver, were also exported to Europe in massive quantities.82 Successive emperors of the Byzantine Empire utilised tribute to buy peace. The Treaty of Peace between Attila and the Eastern Empire of 446 had Theodosius (410– 450) agree to pay 2,100 pounds of gold, per year, to Attila in addition to a one off payment of 6,000 pounds of gold to defray the expenses or to expiate the guilt of the war. The peace treaty of Justin (450–527) with the Avars in 571 cost him 80,000 pieces of silver. Justinian (483–565) agreed in 556 to pay the King of Persia 30,000 gold solidi, in renunciation for a number of Persian claims on the borders of his empire, whilst Sophia (530–601) secured a one-year truce in 578 for the payment of 45,000 nomismata. Similar settlements for 100,000 pieces of silver for the Avar Khagan (562– 602) are recorded in 584, whilst an expensive truce with the Avars in 603 allowed the Byzantine emperor to throw his army against the Persians.83 This creation of space to attack the Persians was in large part to combat their unabashed policy of seizing Byzantine plunder, such as when Antioch fell in 540, and the great cathedral was stripped of all of its gold and silver and even the great polychrome marbles that adorned its walls were pillaged. Likewise, when Jerusalem was sacked by Persian forces in 614, the Church of the Holy Sepulchre, along with most of the other principal Christian shrines, was burnt to the ground along with the destruction of hundreds of monasteries, nunneries and churches throughout the Christian Middle East. Before burning the Holy Sepulchre, the True Cross was seized, together with all of the most sacred relics of the crucifixion, including the Holy Lance and Sponge, and carried way to Ctesiphon. Similarly, when Romanus I (870–948) fought a number of Muslim communities in the middle of the tenth century, he would wage war against some cities, such as Edessa, for the purpose of, inter alia, retrieving items of great religious importance, such as (alleged) handwritten letters to Christ, portraits of Christ from the time he was living, and even his sandals. The Holy Lance and Sponge, along with other Christian relics, were obtained much earlier by Heraclius (575–641) in 628 in his peace treaty with the Persians of the same year. These objects joined the treasures of Croesus which had been held in Persia for the previous 1,000 years, which Heraclius reclaimed when he captured the city of Tauris in 623. Similarly, when Justinian conquered Carthage nearly a century earlier in 533, he returned to Constantinople with the spoils of war which included the sacred seven-branched candle stick that had been brought by Titus in 71 AD from the Temple of Jerusalem to Rome, but taken from Genseric to Carthage in 455. Moreover, Justinian, copying the repatriation policies of some the early Persian kings, then returned this and other sacred vessels to the very city from which they were originally taken.84 The Byzantines were not just collectors of cultural property; they were also destroyers of it. For example, when Heraclius captured the pre-eminent site of the Zoroastrian faith, namely a holy lake which was reputedly bottomless, he had it polluted with battlefield corpses, while busily destroying every related edifice at the site. In addition, he   Wood, H (2008) The Battle of Hastings (London, Atlantic) 9, 67–68.  Gibbon, E (1926) The Decline and Fall of the Roman Empire (London, Methuen) Vol III, 455; Vol IV, 389–91, 410. 84  Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 209, 212, 226, 269, 271, 274, 280, 285, 300; Haldon, J (2002) Byzantium at War (London, Osprey) 42–43; Norwich, J (1991) Byzantium. The Apogee (NYC, Knopf) 154–55, 184, 229, 237. 82 83

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destroyed palaces, temples and even the town of Thebarmes, which was the birthplace of Zoroaster. These acts were in direct response to the earlier Persian sacking of Jerusalem in 614.85 In time to come, such acts were viewed as being merit-worthy and in accordance with some Byzantine practices which were becoming increasingly intolerant of all forms of diversity. This process started with the development of iconoclasm, when Leo III (685–741) prohibited images, supposedly in order to reconcile Christians, Jews and Muslims. The edicts that followed from this legalised an unprecedented prosecution and thousands of images were burned or covered with stucco. All defenders of images were tortured and assassinated and their property confiscated. In libraries, illuminated manuscripts were ferreted out and hundreds if not thousands were destroyed.86 4.  The Crusading Period The Persians, who were busy combating the Byzantines, were soon eclipsed by what grew to become the even greater empire of Islam. The basis of this empire is the teaching in the Quran, which clearly instructed soldiers not to destroy the mosques of God or fight within or near them, unless they were first attacked.87 The first Caliph, Abu Bakr Siddiq (573–634) and other early Islamic scholars, building upon such restrictions, came to issue dictates that both Christian and Jewish places of worship were to be respected. The best example of this type of respect occurred when Jerusalem was captured in 637 and many of the existing churches were specifically protected from desecration. In particular, Umar Ibn al-Khattab (c 586–644), who was responsible for the capture of Jerusalem, was visiting the famous Christian sites when the time of Muslim prayer arrived. Reportedly, Umar asked the Patriarch where he could unroll his prayer mat. The Patriarch invited him to do so where he stood, but the caliph answered: ‘If I do, the Muslims will want to appropriate this site, saying “Umar prayed here”.’ Then, carrying his prayer mat, he went and knelt outside. He was right, for on that very spot the mosque which bore his name was constructed, and had he not moved outside, it would have been constructed on top of the Holy Sepulchre.88 Despite such injunctions and practice, which aimed to establish inter-religious tolerance, as Islam descended into civil war, neither the sanctity within mosques, nor the walls surrounding them were protected.89 In time to come, even great Muslim leaders like Tamerlane (1336–1405), despite a desire to spare the public buildings of cities, including mosques, schools and shrines, was not above destroying the famed Umayyad mosque in Syria. This lack of restraint was particularly obvious with the waves and counterwaves of Islamic and Christian imperialism which came to overlap each other. In this regard the partial sack of Rome by Muslim forces in 846 saw a distinct attack upon the church of Saint Peter. At the same time, the famous abbeys of Monte Cassino 85  Norwich, J (1988) Byzantium: The Early Centuries (London, Guild) 285, 290–91, 298, 362; Regan, G ‘The First Crusader’ BBC History (Nov 2001) 45–48. 86  Norwich, J (1991) Byzantium. The Apogee (NYC, Knopf) 21–25, 53–57. 87   Quran, ss 2.113 and 2.191. 88   Maalouf, A (2006) The Crusades Through Arab Eyes (Paris, Sagi) 51. 89  See Hashmi, S ‘Interpreting the Islamic Ethics of War and Peace’ in Nardin, T (ed) (1998) The Ethics of War and Peace (New Jersey, Princeton University Press) 61; Foss, C ‘Islam’s First Terrorists’ History Today (Dec 2007) 12.

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and Saint Vincent of Volturno were pillaged. Other instances saw overlords failing to protect Christian cultural property as they were obliged, such as when Church of the Holy Sepulcher and the Church of the Resurrection were destroyed by al-Hakim (985–1021) in 1009 – although he later allowed them to be rebuilt. In other instances, great churches, if not destroyed, were either turned into mosques or utilised for more utilitarian purposes, such as stables. These destructions were part of a list of over 4,000 churches or temples (Christian and Persian) of non–Islamic groups that were destroyed and a further 4,000 that were converted into mosques, in the first centuries following the birth of Muhhamed. In some instances, in Christian cities like Edessa in 1145 or Acre in 1291, all of the buildings or monuments associated with the Christian cultural heritage were completely destroyed. Such acts, amongst others, became a clear part of the justifications for the Christian Crusades as they attempted to recapture parts of the Middle East.90 Despite being clear provocations to non–Muslim communities, the practices continued. Tamerlane added to this tradition, wrecking his way through numerous capitals. For example, after Herat surrendered in 1379 he had the monumental iron clad gate of the king, which was adorned with sculptures and inscriptions, removed to his capital. He behaved in a similar manner after his taking of Baghdad, which was sacked (again) in 1387 and Delhi in 1398 was emptied to such a degree, that even the poorest soldiers in his army were said to leave with at least 20 slaves each. Tamerlane recorded with his sack of Delhi in 1398: The spoil was so great that each man secured from fifty to one hundred prisoners, men, women and children. There was no man who took less than twenty. The other booty was immense in rubies, diamonds, garnets, pearls and other gems . . . gold and silver ornaments were obtained in such quantities as to exceed all account.91

When Damascus was sacked in 1401, the combined caravans of horses, mules and camels were unable to carry all of their precious booty. Constantinople, soon to become Istanbul, suffered the same fate in 1453, after its walls were smashed with half ton balls that were carved from marble taken from the temples of Ancient Greece. Once breached, nothing was spared and nothing was sacred, with only a few trying to save the libraries and heritage of the Byzantine Empire for its economic rather than intrinsic worth. Even the great church of Saint Sophia was converted into a mosque. This loss of manuscripts, libraries and antiquities shocked Christendom to the core. When Suleiman (1494–1566) marched on the city of Buda in 1526 a few decades later, he captured the Corvinus library, second only to the Vatican library at that point in his history. This was confiscated and shipped away, before being broken up and sold. In the twenty-first century, only 216 books from this library are identifiable, although even these few remaining books have ended up in separate collections all over the world.92 90  See Rileu-Smith, L (ed) (1981) The Crusades: Idea and Reality. Documents of Medieval History (London, Arnold) 38, 43, 70. 91  Tamerlane in Chaliand, G (ed) The Art of War in World History (California, California University Press) 489; Gibbon, E (1926) The Decline and Fall of the Roman Empire, Vol VI (London, Methuen) 42–43, 251–52; Norwich, J (1991) Byzantium. The Apogee (NYC, Knopf) 145. 92  Runciman, S (1954) A History of the Crusades (Cambridge, Cambridge University Press) Vol I, 88, 215, 237; Vol II, 237; Vol III, 225, 421, 447; Runciman, S (1964) The Fall of Constantinople 1453 (Cambridge, Cambridge University Press) 29, 146; Baez, F (2008) A Universal History of the Destruction of Books (NYC,

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The taking of the spoils of war was important to both Muslim and Christian communities during the Crusades. This was particularly so due to its feudal nature, whereby large numbers of men served without pay, and booty became one of the few sources of reward and resources from which campaigns could be sustained. For example, during the first 18 months after the Hijra, Muhammed carried out seven raids on merchant caravans as they were making their way to Mecca, including during periods of truce. In time, many Muslim forces and their leaders would grow wealthy on the property of others that they acquired during times of war and in the tribute systems applied afterwards. Thus, when Hira fell in 632, the annual tribute to be paid thereafter was set at 70,000 pieces of gold. Madayn was given the bill of 300,000 pieces per year in 637. The following year, Antioch was also obliged to pay the same sum annually. When Spain was subdued in 713, the rate of tribute for each subject community was set at about one piece of gold per person, per year. The tribute for Chrysopolis was set at 70,000 gold pieces per year in 786. In time to come, the Islamic Ottoman Empire would go on to set high tribute rates, for the price of peace in the Mediterranean. Accordingly, in 1521, the Venetians parted with 10,000 ducats, to keep Cyprus free from invasion.93 Such practices became standard practice with the Ottoman Empire, where both the looting and/ or tribute extraction from its neighbours continued for the coming centuries. Particularly large wealth is believed to have been acquired when the palaces of the Iranian kings and nobility were taken. Similarly, whilst in Egypt, the Muslim forces went so far as to systematically plunder the Pharaonic tombs, where they apparently found even more gold. The wealth of Syracuse which was stormed in 878, was put at one million pieces of gold and 17,000 slaves who were quickly sold. The capture of the Byzantine emperor Romanus IV (d 1072) cost a ransom of one million pieces of gold and an ongoing tribute of 360,000 pieces each year afterwards. From the Christian perspective, the reward of spoils was deeply engrained. Clerics such as Baldric of Bourgueil, would preach around 1108: ‘You will get the enemies’ possessions, because you will despoil their treasuries and either return victorious to your own homes or gain eternal fame’.94 On the ground, the desire for spoils, such as those of Raynald of Chatillon (1125– 87), through attacking the protected caravans of either Islam or Mongols, verged on the point of insanity as very costly conflicts befell those who could not restrain their lust for material objects. In less protected settings, such as with the sack of a city, there was very little restraint, and on more than one occasion military order broke down when soldiers went off in pursuit of loot, and not the enemy. In other instances, such as at Tyre in 1124, negotiated settlements which prevented uncontrolled looting at the end of a siege were strongly disliked by those who felt they had been unjustifiably Atlas) 136–37; Marozzi, J (2005) Tamerlane: Sword of Islam (London, Harper) 98, 116, 145, 199, 255–56, 272, 309, 316; Runciman, S (1965); Kelly, J (2004) Gunpowder (London, Atlantic) 52; Spencer, R (2005) The Politically Incorrect Guide to Islam and the Crusades (NYC, Regnery) 124, 138–39; Gibbon, E (1926) The Decline and Fall of the Roman Empire, Vol V (London, Methuen) 427–28. 93   Karsh, E (2006) Islamic Imperialism. A History (NYC, Yale University Press) 37, 39, 45; Saul, D (2005) Zulu, The Heroism and Tragedy of the Zulu War of 1879 (London, Penguin) 94–98, 148–73; Gibbon, E (1926) The Decline and Fall of the Roman Empire, Vol V (London, Methuen) 394–96, 430, 433, 449 467, 511; Elton, G (ed) (1968) The New Cambridge Modern History: The Reformation, Vol II (Cambridge, Cambridge University Press) 347. 94   Baldric in Rileu-Smith, L (ed) (1981) The Crusades: Idea and Reality. Documents of Medieval History (London, Arnold) 52.

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denied their chance of plunder and spoils, as occurred when other Muslim cities were sacked and looted without any restraint other than the traditional caveats about the equitable distribution of booty. When Jerusalem was sacked in 1099, after the slaughter of the defenders ‘then the Crusaders scattered throughout the city, seizing gold and silver, horses and mules, and houses full of all sorts of goods’.95 In most instances, order held because of carefully pre-arranged agreements that dealt with the distribution of spoils. Richard the Lionheart and Philip of France agreed in advance in 1190 that the land and booty they would capture in their Crusade would be divided between them equally.96 Similarly, the Treaty of the Crusaders with Venice in 1201 stipulated ‘If . . . we shall, together or separately, make any acquisitions, whether by conquest or treaty, we shall have the half of all such gains and you the other half ’.97 A later treaty between the two same parties three years later in 1204 concluded ‘[a]ll the property, which shall be found by anyone in the city shall be collected and deposited in the place that shall be selected [and divided four ways]’.98 Once the national divisions were made, each grouping distributed the loot accordingly. Thus, for the Franks, the moveable wealth was distributed so that ‘one mounted sergeant receives as much as two sergeants on foot, one knight as much as two mounted sergeants’. In some cases, such as with the division of spoils after Demietta fell, a similar arrangement was implemented, ranging from knights, to clergy right to down to women and children. Islam had very similar practices on such questions of spoils, with strict rules of division being agreed in advance. Such spoils were valued so highly, that it was recognised that if spoils were being transported between countries by sea and the vessels were too heavy and were likely to sink, they were permitted to throw their prisoners of war, including women and children, into the sea before throwing inanimate objects overboard.99 One of the most extreme examples of the uncontrolled lust for spoils was when the Franks decided to attack and sack, without restraint, the capital of their allies Constantinople in 1204. This was a city that was full of pagan art and statues that had survived since Ancient Greece, from which Constantine had purloined. Among the most important were the Zeus from Donona, the Athene from Lindos and the Apollo from Delphi. These were lost, along with other great treasures like the Bronze Horses of San Marco (which may have originally been taken from the Delphi), and the relics and religious vessels from all of the Orthodox churches. These were accompanied and lost, with thousands of other pieces of art, gold, silver, satins, furs and religious relics. The sack was so great that it was said all of the churches of Europe came to have treasure or relics from Constantinople. Eight hundred years later, the marble ciborium from Constantinople still adorns the high altar in Saint Mark’s Church in Rome.100 95  The Capture of Jerusalem 1099 in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 61; Runciman, S (1954) A History of the Crusades, Vol 3 (Cambridge, Cambridge University Press) 244, 431, 447; Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 73, 83, 87, 167; Maalouf, A (2006) The Crusades Through Arab Eyes (Paris, Sagi) 186–87; Karsh, E (2006) Islamic Imperialism. A History (NYC, Yale University Press) 12–13. 96  Gillingam, R (1978) Richard the Lionheart (London, Weidenfeld) 142. 97  Treaty of the Crusaders with Venice 1201 in Laffan, R (ed) (1929) Select Historical Documents: 800– 1492 (NY, Holt) 63. 98   Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 64. 99   Khadduri, M (1955) War and Peace in the Law of Islam (Baltimore, John Hopkins Press) 115, 118–26. 100  Runciman, S (1954) A History of the Crusades, Vol 3 (Cambridge, Cambridge University Press) 123–24; Chamberlin, R (2003) Loot: The Heritage of Plunder (London, Sutton) 115; Norwich, J (1988) Byzantium: The

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The only comparable sack of this period was in 1258, when Baghdad was taken by the Mongols and the vast treasure accumulated by the Abbasid Caliphs through five centuries of work was swept away. These combatants went so far as to rip open, on the instructions of Genghis Khan (1155–1227), the bellies of the slain as well as decapitating the dead to help search for hidden valuables. The Mongols also had a highly developed sense of tribute; for example, following one foray into Korea, they demanded, in addition to gold, silver and pearls, 10,000 otter skins, 20,000 horses and 10,000 bolts of silk and clothing for one million soldiers. Such demands for the movable assets of their urban enemies were typical for soldiers whose only means of provision were through plunder. Moreover, if it could not be stolen, it was liable to be destroyed. For example, in 1214 when the forces of Genghis Kahn took Peking, more than a palace went up in flames as the city was fired and burned for a month. When the Mongolians turned their attention to Islam, they were quick to destroy mosques or use them as stables for their horses. When they took Baghdad in 1258, the Mosque of the Caliph, the shrine of Shi’a imam Musa al Kazim and the tombs of caliphs at Rusafah were intentionally destroyed. Their cultural destruction soon spread to Eastern Europe, and when Merv was destroyed in 1221, its 10 libraries containing 150,000 volumes helped stoke the fires that burnt its now long-lost observatory. In their desire to comprehensively destroy the Assassins sect, they burnt to the ground their great library at Alamut, after a few prize possessions were removed. Similar acts of violence were notable during their conquests of Korea in 1231 such as when they intentionally destroyed Buddhist wooden printing blocks dating back to the year 1011.101 Similar acts were also common with the Christian forces of the period. A practice which began with the destruction of some synagogues en route to the Middle East quickly followed through when the Muslim cities such as Acre in 1103, Damascus in 1108 and Tripoli in 1109 were taken by force, and the cultural areas associated with them destroyed or converted in a tidal-like process. For example, Cordoba’s cathedral, which started out as a Roman temple, was destroyed by the Visigoths to be turned into a church, only to be made into a mosque in the eighth century, before being reconsecrated and turned into a church, again in 1236. In so doing, if the cultural property of the former owners was not destroyed, it was abused or desecrated by being used for other purposes. When Jerusalem fell in 1099, Muslim authorities reported the destruction of the monuments of the saints and tomb of Abraham, as well as the sacking of the mosque of Umar. Of course, the loss was not just to Islam, for often what was destroyed, such as the libraries of Banu Ammar in Tripoli, was reputed to be the finest in the Muslim world, full of knowledge derived from and of benefit to all civilisations, irrespective of creed. Nevertheless, it should be noted that, although atrocities occurred in some of the sacred places, in a number of instances the buildings themselves remained standing. This was fortuitous, for in some instances, such as when the Christians were in turn besieged in Jerusalem, it was the threat by their leader Balian of Ibelin (1140–93) to destroy all of the buildings within the Temple Area of Jerusalem, including the Dome on the Rock, that forced Saladin (1138–93) to accept a negotiated outcome. Nevertheless, even when the city became his, Saladin elected not to fall upon Early Centuries (London, Guild) 68; Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 193–94. 101  Turnbull, S (2003) Genghis Khan and the Mongol Conquests (London, Osprey) 36, 38, 41, 45, 76; Man, G (2004) Genghis Khan (Bantham, London) 58, 119, 140, 142, 170–71, 174; Juvaini, A (1997) Genghis Khan: The History of a World Conqueror (Paris, Manchester University Press/UNESCO) 102, 104–105, 432.

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the remaining cultural property of the Christians. This was a clear reflection that some cultural property had intrinsic and tradeable values. Perhaps the best example of this was with the True Cross, which had been lost at the Battle of Hattin in 1187. Five years later, Richard the Lionheart agreed in his Treaty with Saladin (which Saladin later reneged) the return of this object.102 5 .  The High Middle Ages and the Renaissance

Tribute provided after conflict as a prerequisite for future peace appears to have dis­ appeared at this point in history. However it is hard to overestimate the importance of plunder prior to putting the possessions and land of the dispossessed to the torch in the Middle Ages within Europe. In the Hundred Year War and the overlapping national wars of the period, where semi-autonomous mercenary bands and even more organised national forces wandered the countryside, it was plunder, not wages, that paid the forces and often directed progress on the battlefields. In some instances, the authorisation for plunder was given well in advance, such as when, prior to Edward III’s (1312– 77) campaign in Scotland, he advertised in advance that anyone who wished to set out against the Scots could keep up to 100 pounds worth of goods and chattels from his Scottish enemies. Very similar practices were reflected in conflicts at sea where the Crown appears to have held all rights to the profits from the capture of enemy ships in wartime, whether made by merchantmen of the enemy or their warships. Thus, as early as 1203, King John was promising the crews of galleys half of the gains they captured from his enemies. The implicit point was, once more, that everyone got an equitable share of the loot. Thus, in times after conflict, the spoils had to be collected in an orderly manner and recorded (such as with the book of Domesday, which may be the greatest list of plunder every recorded) and divided in accordance with agreed ratios such as one third to the king, a third to the captain, and a third to the men, with everyone, even the lowliest archer, getting something. Although in the case of William the Conqueror (1028–1087), it was a little more blunt, with all of his leading men being given estates from the defeated (with the exception of Church land) being between 10 and 20 times larger than what they possessed in France.103 The economic screws were often turned further with the peace treaties that ended the various conflicts. For example, the 1360 Treaty of Bretigny stated that it was, ‘agreed that the King of France shall pay to the King of England three million gold crowns’.104 Less

102  The 1192 Treaty Between Richard the Lionheart and Saladin in Axelrod, A (ed) (2001) Encyclopaedia of Historical Treaties and Alliances, Vol I (NYC, Facts on File) 17; Runciman, S (1954) A History of the Crusades, Vol I (Cambridge, Cambridge University Press) 139, 257; Vol II, 69, 88, 460, 468; Vol III, 46, 301; Finucane, R (2004) Soldiers of the Faith (London, Phoenix) 25, 100, 158–59; McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 174; Maalouf, A (2006) The Crusades Through Arab Eyes (Paris, Sagi) 198–200; Gillingham, J (1978) Richard the Lionheart (London, Weidenfeld) 177, 196. 103   Keen, M (1965) The Laws of War in the Late Middle Ages (London, Routledge) 147–48, 155; Keen, M (1984) Chivalry (NYC, Yale University Press) 232–39; Seward, D (2003) The Hundred Years War (London, Robinson) 58–59, 243; Prestwich, M (1995) Armies and Warfare in the Middle Ages (New Haven, Yale University Press) 95, 102–103, 108, 126; Contamine, P (1984) War in the Middle Ages (Oxford, Blackmore) 31, 236; Barber, R (ed) (2000) The Life and Campaigns of the Black Prince: From Contemporary Accounts (London, Folio) 34–35; Meron, T (1993) Henry’s Wars and Shakespeare’s Laws (Oxford, Oxford University Press) 13. 104  Treaty of Bretigny 1360 in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 165.

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formal demands can be seen with Barbarossa’s surrender terms enforced on Milan in 1158 which stipulated that the vanquished had to hand over 9,000 marks of silver or gold. This was before the buildings of the capital were razed to the ground.105 The possibilities also allowed the taking of important cultural property by kings. For example, the Stone of Scone, reputedly, was the pillow of Jacob. Following a long journey from Egypt, Spain and Ireland it is supposed to have reached Scotland in 330 BCE. It was documented as being for use for coronation purposes in Scotland from 1057, but it was probably used much earlier. When Edward I (1239–1307) overran the country as far as Elgin in 1296, the Stone of Scone came into his possession, and this supreme symbol of sovereignty was removed to England and placed beneath the seat of the English, and later British Monarch, for the next 700 years. This was despite the promise of its restitution accompanying the 1328 Treaty of Northampton.106 If property was taken in times of peace, truce or without permission, it could be considered a crime. That is, by this time, a number of commanders were instigating strict laws to prohibit unauthorised pillage. William I, William II (1056–1100), Richard II (1367–1400) and Henry V (1387–1422) all had rules on this, in addition to a general prohibition upon the looting of churches.107 The specific rule about churches was a clear reflection of some of the limits on warfare that were appearing within Christendom in this period; that is, the Council of Le Puy in 975 called on Christian soldiers ‘to respect the Church’s possessions and those of the peasants’.108 The Peace of God which followed in 989 added ‘Anathema for spoilers of the poor: if anyone robs peasants or other poor of a sheep, ox, ass, cow, goat or pig, unless by the others fault, and if he neglects to make full reparation, let him by anathema’.109 In practice, it was often very difficult to enforce such rules. For example, in the 1216–17 French invasion of England, the principal abbey of St Albans was plundered by both sides in a short space of weeks. However, this type of looting was not condoned, and rulers would often attempt to make amends afterwards. For instance, Henry I (1068–1135) gave grants of land and liberties to churches for the damage the kings soldiers had ‘unwillingly’ done in the course of the campaigns.110 Acts of war involving cultural property within Europe were also meant to be avoided. This was due to a relatively well-entrenched expectation that violence was not to occur in or near churches. This process was first formalised in 989, when an assembly of bishops in Charroux in 989 proclaimed with the Peace of God that ‘No man [may] commit an act of violence in a church, or in the space that surrounds it’.111 The 1027 Truce of God added that ‘none shall dare to violate a church or the houses 105  The Surrender of Milan to Barbarossa 1158 in Laffan, R (ed) (1929) Select Historical Documents: 80–1492 (NY, Holt) 82. 106   Chamberlin, R (2003) Loot: The Heritage of Plunder (London, Sutton) x, 72–86; Seward, D (2003) The Hundred Years War (London, Robinson) 69. 107   Meron, T (1993) Henry’s Wars and Shakespeare’s Laws (Oxford, Oxford University Press) 15–16, 115, 120–22, 151–53; Morillo, S (1994) Warfare Under the Anglo-Norman Kings (Suffolk, Boydell) 63, 134; McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 119. 108   Contamine, P (1984) War in the Middle Ages (Oxford, Blackwell) 271. 109  The Peace and Truce of God (989) in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 18. 110   McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 62; Morillo, S (1994) Warfare Under the Anglo-Norman Kings (Suffolk, Boydell) 98. 111  The Peace and Truce of God (989) in Herlihy, D (ed) The History of Feudalism (NY, Harper) 286, Art 1.

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within thirty paces of a Church’.112 The First Lateran Council of 1123 built on these traditions, promising ‘excommunication of laymen . . . who fortify churches as strongholds’.113 Despite these injunctions, the murder of Thomas Becket (1118–70), the Archbishop of Canterbury, in his own church showed clearly that the theory of sanctuary was by no means robust. The various national wars in Britain, France and what became Italy in the century that followed, saw the destruction of culturally important buildings on a large scale. For example, during the Great Uprising of 1381 in England, when the rebels went through London, they specifically destroyed the complex of buildings known as the Temple and the Savoy; the latter being commonly recognised as the most beautiful building in the country at the time. As these conflicts became international in the Hundred Years War, although some notables such as Edward III and Joan of Arc (1412–31) would attempt to instil restraint against attacks on religious buildings, they could not fully control their forces, and in the sacking of besieged areas the idea of a protected place became meaningless. Others, such as John Talbot (1384– 1453) would make no such pretences, burning to death over 300 men, women and children taking refuge in a church, whilst the last act of Charles the Bold (1433–77) in leaving Beauvais was to order his guns to target the city’s cathedral as his farewell.114 Desecrations were noted in internal wars in Britain during both the War of the Roses (1455–85) and in the acts of the victors, such as Henry VIII’s (1491–1547) eventual closure and seizure of the property of 376 monasteries.115 Similar acts occurred in Italy, as warring factions swept through the country in the sixteenth century. For example, in 1508 Michelangelo (1475–1564) melted a giant bell captured in Bologna to cast a statue of Pope Julius II. In turn, when the Duke of Ferrara (1533–97) got hold of the statue three years later he had it destroyed to cast a massive canon. Such actions were not always on the micro scale, such as when Habsburg soldiers sacked Rome in 1527. In this sack, cemeteries, shrines and churches were looted of all they possessed, and several works of art were also lost. Raphael’s Flemish Tapestries were stolen and sold and the renowned painted glass windows of Guillaume de Marchillat were shattered. It was only due to the restraint of Philibert de Châlon (1502–30), that the Vatican library, the Papal palace with the works of Raphael, and the recently completed Sistine Chapel were not destroyed.116 Such restraint was not applicable in the conflicts that spread with Spanish imperialism in Central and Latin America. In this regard, the Conquistadors appear to have been driven by an insatiable desire to pillage the gold and other precious metals and stones of both the Aztecs and the Incas. Whilst some scholars of the age like Francisco de Vitoria (1492–1546) called for restraint in the plunder of non-combatants, the Conquistadors exercised little restraint, openly taking cultural artifacts of ethnological  The Truce of God 1027 in Laffan, R (ed) (1929) Select Historical Documents: 800–1492 (NY, Holt) 18.   First Lateran Council (1123), Canon 14. 114   Lucie-Smith, E (1976) Joan of Arc (London, Penguin) 133, 189; Barber, R (ed) (2000) The Life and Campaigns of the Black Prince: From Contemporary Accounts (London, Folio) 62–65; Seward, D (2003) The Hundred Years War (London, Robinson) 58–59; McGlynn, S (2008) By Sword and Fire: Cruelty and Atrocity in Medieval Warfare (London, Weidenfeld) 62–63, 182, 217; Baker, D (1966) The Early Middle Ages: Portraits and Documents (London, Hutchinson) 198–202; Dunn, A (2002) The Great Rising of 1381 (Gloucestershire, Tempus) 82–88. 115  Neillands, R (2006) The Wars of the Roses (London, Phoenix) 154–55; Gravett, C (1990) Medieval Siege Warfare (London, Osprey) 23. 116   Chamberlin, E (1979) The Sack of Rome (London, Batsford) 175–76; Arnold, T (2001) The Renaissance at War (London, Cassell) 38, 162; Capponi, N (2006) Victory of the West. The Battle of Lepanto (London, Macmillan) 55. 112 113

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or monetary value and shipped them in bulk back to Europe. Francisco Pizarro (1471– 1541) began his conquest of Peru with the taking of some seven tons of gold and 13 tons of silver in precious ornaments from Inca temples. These ornaments, which were once intrinsic to the Inca culture, were carefully melted down into ingots. In Mexico, Hernan Cortes (1485–1547), with his finely-tuned irony, told the Aztecs that he and his men ‘suffered from a disease of the heart which is only cured by gold’.117 This disease was so powerful, that when Cortes escaped from the Aztec City of Dreams two thirds of his men were killed as they were weighed down by the gold they tried to carry, losing their superiority of weapons. The capital Tenochtitlan was later sacked after an eightmonth siege in 1521. It was then emptied of all of its gold, precious stones, jade and feathers once the killing had stopped. Whilst bonfires of their writings and idols accompanied the process, the ultimate act in this cultural conquest was that entire areas were leveled, in a near unthinkable manner; that is, the Aztec capital, spread across the twin lake-bounded cities of Tenochtitlan and Tlatelolco, which together formed one of the planet’s biggest urban centres of the time, was razed to the ground. Its stone ziggurats, temples, palaces and houses were flattened and its canals filled in as a new colonial city was built on the site of Tenochtitlan. To complete the process, a church dedicated to Saint James was consecrated where Tlatelolco’s great pyramid once stood.118 Pizarro was equally driven by the lure of plunder. This was particularly evident when he captured the Inca king Atahualpa in 1532. Atahualpa offered a famous ransom of a room full of gold to save his life. The room was 17 feet wide and 22 feet long. It had to be filled up halfway with golden jars, pots, tiles and other objects. Unsatisfied with their original demands, the Conquistadors then added the room would have to be filled twice over with silver, again, to be added to the ransom of gold. Collectively, over six metric tons of gold and silver were collected and shipped back to Europe. From this haul each Spanish horseman obtained 90 pounds of gold and 180 pounds of silver. Each footman received half of this amount. All of these soldiers doubled this income when they sacked Cuzco, the capital of the Inca Empire, in what amounted to one of the most successful looting operations of all time.119 Such loot often failed to make it back to the intended destinations in Europe as one set of robbers preyed upon another. For example, in 1523, Jean Fleury (d 1527) was sailing off Cape St Vincent on the southern shores off Portugal when he sighted three heavily-laden Spanish caravels. These ships were ending their voyage from Mexico and were returning with some of the treasure secured by Cortes. Fleury captured these vessels and netted three huge cases of gold ingots, 500 pounds weight of gold dust, 680 pounds of pearls, as well as emeralds, topazes, golden masks set with gems, Aztec rings, helmets and feathered cloaks. After he returned to his employer in France with his capture, the King of France, Francis I (1494–1547), commissioned sea captains to find more of this treasure, and during the next 40 years, it was the French privateers and buccaneers who led the attacks on the Spanish treasure ships and ports. The French adventurers were soon joined by their English counterparts such as Sir Francis Drake   Cortes in Wood, M (2000) Conquistadors (London, BBC) 17.   Hemming, J (1970) The Conquest of the Incas (London, Macmillan) 64, 132–36; Pagden, A (ed) Vitoria: Political Writings (Cambridge, Cambridge University Press) 317–18. 119   Wood, M (2000) Conquistadors (London, BBC) 75–76, 91, 97, 138–39, 143, 148–49; Hemming, J (1970) The Conquest of the Incas (London, Macmillan) 47, 48, 73, 107, 132; Rowdon, M (1974) The Spanish Terror (London, Constable) 144, 150. 117 118

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(1540–1596). As a licensed (and sometimes unlicensed) privateer, he told the commander of one of the captured vessels that he had come ‘to rob by command of the Queen of England and carried the arms she had given him and her commission’.120 Of course, the booty was not all his and with privateers and pirates alike, distribution had to follow elabor­ate rules of division where everyone, except slaves, got something. This was especially so when he had successful expeditions, as in 1579 when he captured Spanish ships with an estimated worth (in 2010) in jewels, gold and silver of US$132 million. Unsurprisingly, such loot would prove a temptation for privateers from Britain, France and the Netherlands until the middle of the eighteenth century. Although some loot-laden Spanish galleons were taken over this period, the vast majority got through. Nevertheless, some of these vessels ended up on the ocean floor, along with dozens of other treasure ships, many carrying booty of questionable origin, speculatively worth over US$1.5 billion, and still in a state of legal turmoil over questions of ownership in the twenty-first century.121 6.  The Reformation and Early Enlightenment

Back across the Atlantic, as the fires for the Thirty Years’ War began to catch alight, the opposing belligerents came to replicate the practices of the armies operating in the Americas, which were busy looting valuables and destroying the properties which were ideologically offensive. Within Europe, the destruction of opposing churches and associated cultural materials was undertaken on a large scale in what became a tit for tat process in multiple domains. However, the targets were not always Protestant or Catholic. Martin Luther (1483–1546) in his ‘Against the Jews and their Lies’ argued in 1543: First their synagogues or churches should be set on fire and whatever does not burn up should be covered or spread with dirt so that no-one may ever be able to see a cinder or stone of it . . . their homes should likewise by broken down and destroyed . . . we must drive them out like mad-dogs.122

The wars of the Reformation that were sparked by the teachings of Luther turned on the differences between the Protestant and Catholic faiths. The easiest way to deal with such dissenting views, was to ban or burn the books that contained them. For example, in 1559, the fearsome Index Librorum Prohibiturum was issued which forbade the acquisition and destruction (if already in possession) of, inter alia, all Bibles in the vernacular, in addition to works by Luther and other Protestant scholars, the Talmud, The Quran, books about divination, superstition and sexuality. The step from destroying such works to destroying the more permanent manifestations of such cultures was a small one, and the iconoclasm of the Reformation was unique in this regard. That is, the iconoclasm from this period, managed to move from destroying only religious imagery to art as well. For example, in the destructions which occurred during the 120   Drake noted in Cordingly, D (2006) Under the Black Flag (NYC, Random) 30–31, 36–37; Robinson, P (2006) Military Honour and the Conduct of War (London, Routledge) 94, 99. 121   Lambert, A (2002) War at Sea in the Age of Sail (London, Cassell) 91, 111; Walton, T (2002) The Spanish Treasure Fleets (NYC, Pineapple Press) 154–55, 189, 191; Cordingly, D (2006) Under the Black Flag (NYC, Random) 30–31, 96–97, 108; Earle, P (2004) The Pirate Wars (London, Methuen) 35–36, 96–97. 122  Luther, M (1543) Against the Jews and Their Lies in trans Bertram (1990) (London, Methuen) 17; Geddes, L ‘Dilemma of a Watery Grave’ New Scientist (19 July 2008) 8.

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English Civil War, coloured images and windows were smashed, choir stalls burned, painted interiors whitewashed, screen and railings broken and vestments torn. The iconoclasm against Catholicism was particularly strong in cathedrals, with Lichfield Cathedral being partly dismantled and turned into army barracks, and much of Carlisle Cathedral razed to the ground. The cathedrals in Exeter and Hull were stripped of their imagery, whilst in London, Saint Paul’s Cathedral had the cavalry quartered in the nave and a market operating in the cloisters. However, such practices were not universal across Europe, and in some instances certain religious buildings were the only thing left standing in an area that was otherwise razed to the ground. Moreover, leaders like Gustavus Adolphus (1594–1632) explicitly rejected proposals that he should demolish the Ducal palace in Munich, which continued to stand until the Second World War when it was turned to rubble via aerial bombardment.123 Such decisions of restraint were in line with the increasingly sophisticated thinking that evolved with some of the finest thinkers of the Reformation such as Thomas More (1478–1535),124 Francisco de Vitoria (1492–1546),125 and Alberico Gentili (1552–1608).126 Hugo Grotius (1583–1645) had suggested that to destroy ‘sacred edifices’ for any other reason of military necessity was nothing more than ‘brutal rage and madness . . . [which] . . . bespeaks a total disregard to the laws and ties of our common humanity’.127 Emerich de Vattel (1714–67) summed up the position well when he stated in 1758: For whatever cause a country is ravaged, we ought to spare those edifices which do honour to human society, and do not contribute to increase the enemy’s strength – such as temples, tombs, public buildings and all works of remarkable beauty. It is declaring one’s self an enemy to mankind, thus wantonly to deprive them of these monuments of art.128

In accordance with such higher levels of restraint, some commanders of the period attempted to control the looting of their soldiers. This was evident with some commanders, such as Albrecht von Wallenstein (1583–1634), who wished to ingratiate themselves upon the local populations who were friendly, neutral or on enemies who had been defeated. Accordingly, there would be no pillage or forgetting to pay for the necessities that armies required when billeted on foreign lands. Maurice de Saxe (1696–1750) would argue exactly the same, suggesting that: ‘the men should be ordered to refrain from pillage on pain of death’.129 Failure to act otherwise, as Charles I (1600– 49) did in the English Civil War by allowing his troops to pillage, was added to the charges for which he lost his head.130 123  Gamboni, D (2007) The Destruction of Art (London, Reaktion) 25–30; Downing, T (1991) Civil War (London, Gardner) 102. 124   More T in Logan, G (1975 edn) Utopia (Cambridge University Press, Cambridge) 152, 243–44, 248, 250, 256, 264. 125   Victoria, F (1540) De Jure Belli trans Bate, J (1917) (Oxford, Clarendon) Sections 52 and 68. 126  Gentili, A (1612) Three Books on the Laws of War trans Rolfe, J (1933) (Oxford, Clarendon) II.28. See also Van der Molen (1937) Alberico Gentili and the Development of International Law (Amsterdam, HJ Paris) 144–47. 127  Grotius, H (1904) The Rights of War and Peace (London, Dunne) 365–68; cf 333. 128   de Vattel, E (1983 reprint) The Law of Nations or the Principles of Natural Law, Vol II, Book III, Chapter IX (Geneva, Henry Dunant Institute) 139; English translation by Fenwick, C (1983) in The Classics of International Law, Vol III (Geneva, Slatkine Reprints, Henry Dunant Institute) 367. 129  Saxe in Chaliand, G (ed) (1994) The Art of War in World History (California, University of California Press) 589. 130   Wallenstein in Reddaway, F (ed) (1930) Select Documents in European History, Vol II (London, Methuen) 1492–715. 123. Robertson, G (2006) The Tyrannicide Brief (London, Vintage) 68, 174; Parker, G (2002)

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Such practices to prevent pillage were the exception of the age. The systematic looting of areas had been evident in the sixteenth century in Europe from the time of the sack of Rome in 1527. In this sack, religious goods were at particular risk as cemeteries, shrines and churches were looted. The great golden cross of Constantine that had lain in the basilica of St Peter’s for over 1,200 years was amongst the booty taken and never seen again. This was like the 400,000 ducats required to purchase the safety of the 90,000 persons in the city. The warfare in the Low Countries at the end of the sixteenth century replicated these practices, as Spanish troops, many of whom were without pay for long periods, threatened to mutiny on a number of occasions if their ‘right’ to plunder was removed. By the time the Thirty Years’ War had fully exploded, plunder and pillage was a clear practice. Unpaid and poorly disciplined troops regularly looted civilians, often making little distinction between friend and foe. This became an increasing problem as the war lost direction, and armies often campaigned simply to conquer territory and levy contributions sufficient to support themselves and aggrandise their commanders. War became the purpose of war. This became a particular problem in what is now called Germany, although the threat was regional. Thus, in 1624 Pope Urban VIII graciously received as a gift (and largely retained thereafter), the superb Palatine Library that had been the pride of Heidelberg and had now fallen as prize to the Catholic generals of Gustavus Adolphus. Adolphus, who had attempted to restrain his own troops from looting the property of private citizens, nevertheless went on to take the ‘higher’ cultural items of his enemies. His court at Stockholm was turned into a cultural centre by stuffing it with the proceeds of libraries and art from his victories over Riga, Braunsberg, Frauenberg, Munich, Wurzburg and Mainz. Similarly, the generals of his daughter Christina (1626–89) timed their attack on Prague in 1648 in order that their culture hungry mistress could devour the accumulated artistic treasures of the Emperor Rudolf II (1552–1612). The Queen’s commands to her commanders were explicit: ‘[T]ake good care to send me the library and the works of art that are there: for you know that they are the only things for which I care’.131 When Prague fell in 1648, only three of the palaces within the walls of the city were left un-pillaged. The famous library containing the Codex Argenteus, still the glory of Uppsala University in the twenty-first century, was amongst the spoils which ranged from 500 paintings, including some from Durer and Brueghel, through to 170 marble statues, 70 bronze statues, 317 astronomical instruments and even a live lion. A similar process followed the end of the English Civil War. In this instance, the English Puritans began by pulling down the great cross of Cheapside in London, desecrating the exquisite chapel of Henry VII at Westminster, and decapitating the effigies in the English parish churches; voting to sell the English cathedrals for scrap. After the execution of Charles, Parliament ordered the instant sale of his art collection (much of which had been collected by less than reputable means), which included, inter alia, paintings from Raphael, Titian, Tintoretto, Durer and other masters.132 Such acts, as Machiavelli Empire, War and Faith in Early Modern Europe (London, Penguin) 65. 131   Christina, noted in Trevor-Roper, H (1970) The Plunder of the Arts in the Seventeenth Century (London, Thames & Hudson) 45. 132  Trevor-Roper, H (1970) The Plunder of the Arts in the Seventeenth Century (London, Thames & Hudson) 22–27, 41–42; Chamberlin, R (2003) Loot: The Heritage of Plunder (London, Sutton) 106, 166–76, 188, 198; Lynn, J (2002) The French Wars 1667–1714 (London, Osprey) 82–83; Childs, J (2001) Warfare in the Seventeenth Century (London, Cassell) 73; Treue, W (1961) Art Plunder: The Fate of Works of Art in War and Unrest

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(1469–1527) would note, were not illegal, although they did little to win the hearts of the defeated people.133 They were, however, useful to instill purpose in attacking armies. As Hugo Grotius noted in 1625: It is observed by legal authorities to be a custom, which has silently gained ground, for either allies or subjects, who engage in war without pay, and at their own risk and expense, to be rewarded with the captures they make. . . . Soldiers are entitled to a share of the spoils.134

Johann Tserclaes, the Count of Tilly (1559–1632) and Imperialist commander who oversaw the sack of Magdeburg in 1631 put it in a more succinct form ‘Three hours plunder is the shortest rule of war. The soldier must have something for his toil and trouble’.135 From such practices, even the 1648 Peace of Westphalia would conclude: As to confiscations of things, which consist in weight, number, and measure, exactions, concussions, and extortions made during the war, the reclaiming of them is fully annulled and taken away on the one side and the other, in order to avoid processes and litigious strifes.136

These same practices largely continued into the eighteenth century, with the one notable difference being that commanders, in an attempt to gain increasing control over their troops, prohibited unauthorised pillaging in occupied territories. However, this was far from an absolute rule, and security was often only achieved at great economic cost to local communities. For example, the Convention at Douai of 1710 had the Dutch forces agree that their army would not molest the inhabitants of the French territory of Peronne for the payment of 800,000 livres. Outside of such agreements, the taking of spoils was a continued practice, with soldiers managing to take the property of others, providing it was divided up equitably, with everyone getting something. Thus, when critics complained to King Louis XIV of France (1638–1715) that his commanders were doing very well for themselves out of the fighting, he replied ‘yes . . . but he is doing very well for me too’.137 This was not a surprising comment, given that the taking of pillage and contributions from local populations by the armies of Louis was accounting for about 25 per cent of the cost of his wars. In other instances, more refined ways of acquiring valuable assets were being realised, such as when John Churchill, the Duke of Marlborough (1650–1722) simply asked his benefactor, Emperor Joseph I (1678–1711) if he could be given a series of paintings for his recent conquests on the Continent. These included the portrait of Charles I by Van Dyck which had recently been sold (as noted above), as well as three paintings by Rubens and one by Tintoretto. These works, of course, were not pillaged from galleries taken in sacked cities, but presented as presents as the largess of the Joseph’s peace process.138 (NYC, Day) 89–102. 133

200. 134 135

134.

  Machiavelli, N (1560) The Art of War in trans Whitehorne (1990) (Eastern Press, Connecticut) 163,  Grotius, H (1625) The Rights of War and Peace, 1901 edn, (London, Dunne) 341–43.  Tilly, in Glover, M (1982) The Velvet Glove. The Decline and Fall of Moderation in War (London, Hodder)

 Art XCI.   Louis quoted in Bell, D (2007) The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (London, Bloomsbury) 28–29; Lynn, J (2002) ‘The Devastation of the Palatinate’ in Grimsley, M (ed) Civilians in the Path of War (NY, University of Nebraska Press) 95; Anderson, M (1998) War and Society in Europe of the Old Regime (London, Sutton) 137; Luvaas, J (1999) Frederick the Great on the Art of War (NYC, De Capo) 128, 134. 138  Treue, W (1961) Art Plunder: The Fates of Works of Art in War and Unrest (NYC, Day) 103–108. 136 137

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Extreme pillaging was also recorded by British, Russian, French and Austrian forces as they fought their way through Prussia and elsewhere in the Seven Years War. The capture of Havana by the British in 1762 yielded them the richest prize in this conflict. Whilst the admiral in charge of the operation netted himself 122,700 pounds, each lowly seaman pocketed an impressive £3, 14 shillings and 6 pence. Pillage followed in the American War of Independence, with that done by the troops of the nascent United States after the English withdrew once Boston was taken in 1776, being particularly notable, as was their Acts of Attainder, by which they sought to confiscate the property of Loyalists on the grounds of treason – although this was later reversed with the 1783 Paris Peace Treaty.139 This idea of repatriating property taken in war had earlier appeared in 1763 where, unlike the Treaty of Westphalia which allowed those possessing property at the end of the conflict to keep it, the Treaty of Hubertsburg between Austria and Prussia stipulated that despite the general amnesty ‘all . . . goods confiscated or sequestrated shall be returned to their owners, from whom they were taken during the recent disturbances’.140 Such progressive views were also reflected in the way that the necessary destruction of property was becoming increasingly less common. For example, British General James Wolfe (1727–59) was notable for his clear instructions to his soldiers not to burn churches or houses during the Seven Years War. However, in the American War of Independence that followed, the destruction of the property, public and private, was a common occurrence on both sides and it was due to fortuitous circumstances that the key cities of Boston and New York were not reduced to dust. That is, when Boston was surrendered, it was because of the good terms offered to the British that the city was not burnt to the ground upon their departure. Similarly, when the Americans left New York City, Congress prohibited the destruction of the city by fire, so as to deny the enemy its use.141 7 .  The Nineteenth Century A. Destruction

In the decades that followed, the good fortune that was present in parts of the American Revolution was often absent in the French. For example, whilst many churches and cathedrals were desecrated and closed or turned into Temples of Reason, manors and mansions, houses, castles and abbeys were often looted, destroyed and/or burnt. Libraries were torched in Paris, with over 26,000 ancient manuscripts being destroyed. Even bell towers could be toppled because they stood above the height of other buildings and therefore contradicted the nascent ideals of equality. Anything associated with the earlier regime was a potential target. In some instances, the destruction went to entire regions such as with the revolutionary intention to crush the rebellious town 139  See Art 5 of the 1793 Peace Treaty. Boatner, M (1969) The Encyclopaedia of the American Revolution (NYC, McKay) 49; Marston, D (2001) The Seven Years’ War (London, Osprey) 82; Fowler, W (2005) Empires at War (NYC, Walker) 263; McCullough, D (2005) 1776. America and Britain at War (London, Penguin) 104. 140  The Treaty of Hubertsburg 1763, Art II. 141   Carr, C (2002) The Lessons of Terror: A History of Warfare Against Civilians (NY, Little) 111; Bevan, R (2007) The Destruction of Memory. Architecture at War (London, Reaktion) 20–23.

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of Lyon. In this instance, 1,600 of the finer houses were destroyed as part of a wider plan that was never fulfilled – to wipe the map of the city and leave only the dwellings of the poor and buildings of ‘public utility’ standing in a city renamed ‘Freed Town’.142 Such lack of regard for cultural property was also replicated by the Napoleonic armies. Napoleon himself demonstrated his regard for heritage by leaving orders, which were only defeated by faulty fuses, to blow up the Kremlin upon his retreat from Moscow. Similarly, whilst fighting in Spain, the Abbey of Montserrat, which contained one of the most extraordinary libraries in Spain, if not Europe, was totally destroyed by French troops to prevent it from being used as a fortress.143 A year later on the other side of the Atlantic, following the indiscriminate burning of (Canadian) York by American soldiers in 1813, British and Canadian troops responded with the burning of public buildings in Washington, including the mansion of the president, the Capitol building and the treasury. When the scorched mansion was whitewashed during its repairs, it acquired the name ‘the White House’.144 Finally, less than a decade after this, during the Greek War of Independence, a small number of those seeking independence barricaded themselves into the Acropolis. Despite promises by the Sultan to the contrary, his forces shelled the Parthenon (but missed) and drove mines underneath its outer walls, but these either did not explode or were counter-mined by the Greeks. Other incidents of Greek antiquities being used for target practice by the Turks also exist. Of course, what the insurgents were fighting in was already largely a ruin, as in 1687 Venetian gunners had lobbed a mortar shell on the Parthenon, then being used as an ammunition store by the Turks. The resultant explosion had totally destroyed the building, and it was not properly rebuilt until Greece became independent in 1823.145 Similar acts of disregard were recorded in the siege of Vienna in 1848, where after a period of frustration with the defenders, the besieging Austrian army adopted a policy of adjusting their weapons to the angle of fire to 45 degrees so that heavy guns could target central areas of the city, causing maximum damage to, inter alia, the churches, public buildings and cultural property of Venice. In doing so, some distinguished architectural casualties resulted, such as San Moisee, SS Giovanni e Paolo, the church and scuola of San Rocco, the Frari and Madonna dell’Orto.146 Despite such incidents, by the middle of the nineteenth century, the great American legal scholar, Henry Wheaton (1785–1848) would argue that ‘temples of religion, public edifices devoted to civil purposes only, monuments of art and repositories of science, are exempted from the general operations of war’.147 As if almost mocking such suggestions, in 1860 the British, acting without the support of their French counterparts, decided to burn the Summer Palace in Peking at the end of the Second China War, a place of extreme beauty and magnificence. Similarly, whilst in their second Afghanistan adventure, the British ordered the destruction of most of the buildings of 142  Gamboni, D (2007) The Destruction of Art (London, Reaktion) 35–40; Andress, D (2007) The Terror: Civil War in the French Revolution (NYC, Brown) 211. 143   Zamoyski, A (2004) 1812: Napoleon’s Fatal March on Moscow (London, Harper Collins) 300, 370. Also, Baez, F (2008) A Universal History of the Destruction of Books (NYC, Atlas) 167. 144   Hickey, D (1995) The War of 1812 (Chicago, University Press of Illinois) 129, 199. 145   Howarth, D (1976) The Greek Adventure (London, Collins) 214; Bromley, J (1970) The New Cambridge Modern History. The Rise of Great Britain and Russia, Vol VI (Cambridge, Cambridge University Press) 620. 146   Keates, J (2006) The Siege of Vienna (London, Pimlico) 387, 389. 147   Wheaton, H (1836) Elements of International Law (Philadelphia, Carey, Lea & Blanchard) 395.

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the Musalla complex, built by Tamerlane in the fifteenth century. This destruction, done to aid a Russian military advance, left only nine minarets standing. Earthquakes claimed three more of these, a further one was lost due to shelling in the SovietAfghanistan war a century later.148 Irrespective of the setbacks noted above, the 1863 Lieber Instructions for the Government of Armies of the United States in the Field added to this approach, stipulating that as a general rule, classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, must be secured against all avoidable injury, even when they are contained in besieged or bombarded fortified places. Moreover, to prevent mistakes, the locations of such places should be designated and this information should be shared with the opposing side.149 To a degree, such instructions may have had some influence during the American Civil War, although as the practice of the authorised destruction of private property eventually became the authorised destruction of entire areas, it is debatable how much influence was achieved. In this regard, as the loss of cultural property in the towns of, inter alia, Randolph, Tennessee, Chambersburg and Pennsylvania, in addition to the cities of Charleston, South Carolina and Richmond Virginia were to testify, despite the injunctions to have controlled destruction, this was often far from the case as thousands of buildings were committed to the flames.150 An even greater lack of restraint befell France in 1870 and 1871 when it fought Prussia and then itself. In the first instance, the development of new technologies which allowed bombardment from beyond eyeshot resulted in damage to important cultural properties. For example, during the bombardment of Strasbourg in 1870, the picture gallery, the city library, the Palais de Justice, the great Huguenot Temple Neuf and the Cathedral were all hit. The accompanying attack on Paris saw hits upon the Pantheon, the Salpetriere and the Convent of the Sacred Heart. Allegedly, the domes of the Pantheon and the Invalides were favorite targets.151 The uprising in Paris by the Commune the following year may have caused more damage to the cultural property of France than the acts of war by the Prussians. When they were in control of the city, the insurgents were systematic in the destruction of what they disagreed with. Thus, the Vendome Column which reached 155 feet in height and had been erected by Napoleon in emulation of Trajan’s masterpiece of Rome, came crashing down in a deliberate act to divest the uprising of its past. When they were not in control of the city and the battle raged around them, the forces of the Commune set fire to an impressive list of buildings including, inter alia, the Tuileries, a large part of the Palais-Royal and the Palais de Justice. Whole sections of streets like the Rue de Lille and much of the Rue de Rivoli were ablaze, as was the Ministry of Finance, housed in one wing of the Louvre. The priceless treasures of the Louvre were only saved by the rain that put out the fire in Ministry of Finance, although parts of the Louvre library, with manuscripts dating back to 1512, disappeared in the flames. 148   Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 389; Marozzi, J (2005) Tamerlane: Sword of Islam (London, Harper) 120–21. 149  Arts 35 and 118. 150  Stout, H (2006) Upon the Altar of the Nation: A Moral History of the Civil War (NYC, Viking) 141, 143, 153, 155, 259–61, 278, 320–24, 379–82, 418–22; Fuller, J (1972) The Conduct of War 1789–1961 (London, Methuen) 108–11. 151  Howard, M (2002) The Franco-Prussian War (London, Routledge) 274, 361; Horne, A (2004) The Terrible Year: The Paris Commune, 1871 (London, Phoenix) 53.

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The Hotel de Ville was consigned to the fire. Notre Dame was made ready for des­ truction, but it did not occur. In other disputed areas, both sides seem to have shown minimal restraints. The American Legation counted 27 separate hits on the Arc de Triomphe over a two-day period as the belligerents battled for the city.152 Such acts as those that occurred in Paris in 1870 and 1871 were viewed with increased disdain both domestically and internationally. It was in the same decade that William Morris (1834–96) formed the British Society for the Protection of Ancient Buildings, and European cultures became increasingly interested in preserving their architectural histories. Thus, in 1873, the Ancient Monuments Protection Act came into being in Britain. John Ruskin (1819–1900) explained in parliament: ‘They are not ours. They belong partly to those who built them, and partly to all the generations of mankind who are to follow us . . . [W]e have no right to obliterate . . . It belongs to all successors.’153 Against this background, the 1874 Project for an International Declaration concerning the Laws and Customs of War, recommended the forbidding of ‘any destruction or seizure of the enemy’s property that is not imperatively demanded by the necessity of war’.154 In particular, ‘buildings dedicated to art, science, or charitable purposes, hospitals, and places where the sick and wounded are collected provided they are not being used at the time for military purposes’ should be clearly marked, their location made public to the opposition, and they should not be targeted. It was added that: [T]he property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences even when State property, shall be treated as private property. All seizure or destruction of, or willful damage to, institutions of this character, historic monuments, works of art and science should be made the subject of legal proceedings by the competent authorities.155

The 1880 Oxford Manual contained exactly the same rules,156 and these finally became international law in the 1899 Hague (II) Convention on the Laws and Customs of War on Land. This reiterated the rule that the destruction of enemy property could only be justified if ‘imperatively demanded by the necessities of war’.157 In particular, ‘in sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science . . . provided they are not used at the same time for military purposes’.158 It was added that the besieged should indicate these buildings or places by some particular and visible signs, which should be made known to the assailants. Although the first real laws were agreed on this topic at the end of the nineteenth century, it was possible to suggest they were of limited effect around this time. The first reason for this was because terrorists, as opposed to State actors, had discovered the shock value of targeting cultural property. The initial instance of this was in 1884   Horne, A (2004) The Terrible Year: The Paris Commune, 1871 (London, Phoenix) 101, 114–15, 131.  Ruskin, noted in Vrdoljak, A (2008) International Law, Museums and the Return of Cultural Objects (Cambridge, Cambridge University Press) 41. 154  Art 13(g). 155  Arts 8, 17. 156  Oxford, Art 32, 34, 53. 157   Hague 1899, Art 23(g). 158   Hague 1899, Art 27. 152 153

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when the Fenians attempted to blow up Nelson’s column, and the following year they had successes in exploding bombs at the Tower of London, London Bridge and the Houses of Commons.159 The second reason why the 1899 Laws were questionable was because they appeared to have little impact on the behaviour of belligerents. This was most evident during the Boxer Rebellion in China. Of note, the insurgents especially targeted all foreign buildings, including religious buildings and libraries, including the Hanlin Academy. The Hanlin was the equivalent of Oxford or Harvard. The exquisite building was full of tens, if not hundreds, of thousands of silk-covered volumes, all written by hand. Notably, it contained the only copy of the fabulous Yung Lo Ta Tien, an encyclopedia completed in 1408 by 2,000 Ming scholars and comprising of 12,000 volumes in yellow silk. However, it is important to note that, although the insurgents showed no respect to such cultural properties, the besieged Europeans did. That is, the besieged legations who had the Hanlin within their defensive perimeter, refused to burn it down, despite the military advantage it would have given them. Moreover, despite the looting that followed the lifting of the siege, although the Russians had proposed burning the Imperial City to the ground as a reprisal, this time the British refused such a suggestion, and the cultural property remained standing.160 B. Pillage

The timing of the birth of the French Republic overlapped with the destruction of Poland, which was partitioned in 1772, 1793 and 1795 by Russia, Austria and Prussia. The third partition in 1795, which was the final act in dissolving a kingdom which had lasted 1,000 years, saw the dispersal and removal of the Stanislaus Augustus collection. The acts of taking the best were supplemented with acts of taking everything else of value as the occupying troops helped themselves to whatever they wanted. Similar acts occurred in India at the same time, such was when the British stormed Sri Rangapattana in 1799, of which the remnants of the pillage, such as Tippoo’s Tiger, are still on public display in London in the twenty-first century.161 Napoleon (1769–1821) who was clearly aware of what was happening in Poland was, in principle, strictly against such practices of pillage and theft. This was especially so when dealing with the property of neutrals, such as that taken on the high seas as potential contraband.162 When speaking of war on land, he suggested that acts of pillage and looting by common soldiers: ‘Belong only to the cowardly, who are unworthy of remaining in the ranks . . . they 159   Later terror attacks of note on cultural properties include the Black Liberation Front’s attempt to dynamite the Statue of Liberty, Liberty Bell and the Washington Monument in 1966. The Statue of Liberty was attacked by bomb, again, in 1980. The terror attacks on the Twin Towers, as architectural icons is obviously notable, as was the attack on the Uffizi gallery in Italy in 1993, in which works by Rubens and Velazquez were among those seriously damaged or destroyed. See Gamboni, D (2007) The Destruction of Art (London, Reaktion) 103–105. 160   Preston, D (2000) The Boxer Rebellion (NYC, Berkeley Books) 107, 139–41, 187, 286–87, 291–92; Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 96. 161  Treue, W (1961) Art Plunder: The Fates of Works of Art in War and Unrest (NYC, Day) 132–38; Vrdoljak, A (2008) International Law, Museums and the Return of Cultural Objects (Cambridge, Cambridge University Press) 68–69. 162  See the British Order in Council, January 10 1807, entitled American State Papers, Foreign Relations, III, 5. And in reply, note 1808 French Treaty with Holland, 16 March 1810, entitled De Clercq, Traites, II, 328–30. Also Hickey, D (1995) The War of 1812 (Chicago, University Press of Illinois) 12.

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have no goal other than to stain the laurels acquired by so much bravery and perseverance.’163 As such, he ordered that in some instances, soldiers caught looting should be shot. However, in private he would advise his brother Joseph (1768–1844) after the latter ascended the throne in Naples: The security of your dominion depends on how you behave in the conquered province. Burn down a dozen places which are not willing to submit themselves. Of course, not until you have first looted them; my soldiers must not be allowed to go away with their hands empty.164

As such, despite the exhortations of Napoleon, pillaging and theft by French soldiers was well recorded in their campaigns in Russia, Egypt, Prussia, Italy and Spain. The Prussian soldiers are recorded as behaving in the same manner when they invaded France.165 Where Napoleon did not proffer such exhortations was with regards to the acquisition of ‘higher’ cultural property. This trend within France can be traced to 1792, when leaders of the French Revolution were writing to their generals in the field suggesting: ‘I believe it would be very nice if you profited by the circumstances to enrich the Bibliotheque Nationale with several great and costly works found in the libraries of the places you have conquered for liberty.’166 Within a few years, the wagons returning to France were expected to include the art treasures and rare books of foreign countries. The monasteries, churches and religious foundations that were secularised and their possessions confiscated, provided thousands of pieces of treasure. Such takings were only to be done at the level of the highest officials, not the common soldier under the authority of a musket. At all points, the assumption was that the treasures were not taken for the personal collections of individuals. Rather, they were taken for the glory of France and the French people, from which famous State-run museums such as the Louvre (formerly, the Musée Napoléon), would arise. The acquisitions were often done by leading, or authorised, officials. For example, when Napoleon arrived in Moscow, he personally had all the treasures from the Kremlin gathered up, including the great silver-gilt cross which he ordered to be wrenched from the dome of the tower of Ivan the Great. In other instances, various officers were entrusted to collect art and other valuable objects in accordance with various ‘shopping lists’. This was the preferred approach in Prussia, where commissioners descended upon Aachen, the prize that had been the seat of Charlemagne. Not content with the marble pillars from the Hochminser, they also brought back the very tomb of Charlemagne. Cologne was plundered of stained glass and the city library and the Jesuit school lost their 1,400 Greek and Roman silver coins, cut gems, bowls and vases and natural history collection acquired from all over the world. Potsdam had removed all of its gems and medallions. Berlin’s art gallery was emptied of, inter alia, 116 pictures and 204 statues, busts and reliefs. Individuals as well as public collections  Napoleon in Luvaas, J (1999) Napoleon on the Art of War (NYC, Free Press) 3.  Napoleon in Nabulsi, K (2005) Traditions of War (Oxford, Oxford University Press) 22; Esdaile, C (2003) The Peninsular War (London, Penguin) 131–32. 165   Zamoyski, A (2004) 1812: Napoleon’s Fatal March on Moscow (London, HarperCollins) 366, 420, 512– 13; Bell, D (2007) The First Total War: Napoleon’s Europe and the Birth of Modern Warfare (London, Bloomsbury) 260–62; Rothenberg, G (1980) The Age of Warfare in the Age of Napoleon (Bloomington, Indiana University Press) 55; Baez, F (2008) A Universal History of the Destruction of Books (NYC, Atlas) 167. 166   Letter of Lebrun in Best, G (1980) Humanity in Warfare (London, Weidenfeld) 94. 163 164

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were looted. The Duke of Brunswick alone lost 78 paintings, including Raphaels, Titians and Rembrandts. Of note, what history now knows as the Ghent Alterpiece, which had originally been painted in 1432 by the Flemish brothers Hubert and Jan van Eyck in the Cathedral of Saint Bavo in Ghent, was taken by Napoleon to Louvre. In ideal situations, appropriations were conducted by treaty. For example, in 1796, when treaties were signed with the Dukes of Modena and Parma, clauses enjoined the handing over of stipulated works of art. Next it was the turn of Milan, and then Rome. The treaty signed with Pope Pius VI in 1796 stipulated that the Holy See had to pay 21 million livres in money and goods. Article 8 added: A hundred pictures, busts, vases or states to be selected by the commissioners and sent to Rome, including in particular, the bronze bust of Junius Brutus and the marble bust of Marcus Brutus, both on the Capitol, also five hundred manuscripts at the choice of the said commissioners.167

Rome was dealt with separately. Article 6 of their surrender document stated: ‘The government of Rome will pay an extraordinary contribution in three decades of four million piastres in cash and two million goods according to [the general’s] choice.’ Article 14 added: Such pictures, books, manuscripts and works of art will be confiscated from in the city of Rome as are thought worthy of dispatch to France in the judgment of a commission appointed for the purpose by order of the Commander in Chief.168

The terms of the Treaty of Campo-Formio and the Treaty of Milan provided for the handing over of both private and public art. Two works of art are exemplary of this process, the Marriage of Cana by Veronese and the Four Bronze Horses of San Marco (the latter, of which the Venetians had looted from Constantinople in 1204). Individual villas were known to have yielded up 290 cases of booty which was sent to France, whilst Saint Peter’s Church produced 4,000 pounds of silver and 70 of gold. Despite these known instances, there is no exact record of the total amount of loot removed from Italy, although it is estimated that apart from Rome, at least 241 of the choicest pictures were sent to the French Republic.169 Napoleon supplemented these acquisitions with a series of other treaties through which he imposed large economic costs upon his defeated enemies. In contrast with earlier periods where treaties imposed economic costs on the defeated which were considered tribute, Napoleon reclassified the taking of large economic sums from the defeated as indemnities for the price of the wars they had lost. For example, the 1806 Treaty of Pressburg,170 was unique in its specification that in addition to the ceding of lands, a sum of 40 million francs would also be paid over. The 1808 Treaty between France and Prussia imposed a sum of 140 million francs, whilst the Treaty of Vienna  Art 8, reprinted in Treue, W (1961) Art Plunder: The Fates of Works of Art in War and Unrest (NYC, Day)

167

150.

168  Rome Surrender Proclamation in Treue, W (1961) Art Plunder: The Fates of Works of Art in War and Unrest (NYC, Day) 155. 169   Houpt, S (2006) Museum of the Missing (Toronto, Madison) 33–34, 50; Chamberlin, R (2003) Loot: The Heritage of Plunder (London, Sutton) 105, 116; Griffith, P (1998) The Art of War of Revolutionary France: 1789– 1902 (London, Greenhill) 55–56; Rothenberg, G (2000) The Napoleonic Wars (London, Cassell) 39, 42; Zamoyski, A (2004) 1812: Napoleon’s Fatal March on Moscow (London, HarperCollins) 353; Griffith, P (1998) The Art of War of Revolutionary France: 1789–1902 (London, Greenhill) 57. 170   De Clercq, Traites II, 145–51.

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between the King of Austria and Hungary and Napoleon obliged a cost of 200 million francs.171 In due course, once Napoleon had been subdued, large indemnities were also demanded of France. Originally, the agreed position with the Treaty of Paris of 1814 was one whereby the victors ‘renounce[d] all the sums which their Governments claim from France, whether on account of contracts, supplies, or any other advances whatsoever to the French Government, during the different Wars which have taken place since 1792’.172 However, following the uprising and the Battle of Waterloo, this leniency was changed. In the first instance, proposals in the terms of the truce that public establishments, museums, libraries and art galleries would be protected were removed. What was not removed was the stipulation in the Treaty of Paris in 1815 that an indemnity placed upon France to the value of 700 million francs would be applied.173 Whilst the claiming of an indemnity as reparation for the war was consistent with the period, what was novel in the peace settlement was the principle of restitution that followed the 1815 Convention of Paris, through which the French authorities were ordered to return (most) property acquired by them, that was either taken through force, or acquired by treaty, to the countries of origin. The Allied position was stated by the Duke of Wellington (1769–1852), who observed that the systematic looting by Napoleon of cultural property from the rest of Europe was ‘contrary to principles of justice and the rules of modern war’.174 In a letter to Lord Elgin, William R Hamilton (1805–65), a member of the British delegation to the 1815 Congress of Vienna added that that ‘all the Sovereigns in Europe’ had agreed that the works were ‘so sacred a property’ that they had to be restored to the places from which they were removed by French forces.175Accordingly, after the Congress of Vienna, over 2,000 paintings, 130 statues, 289 bronzes et al were returned to their owners. However, many spoils, especially those not located in the Louvre, remained in French hands. Likewise, some of their acquisitions, such as the Rosetta Stone, had been acquired by the British forces when they beat the French in Egypt, and forced them to hand it over as part of their surrender in accordance with the 1801 Treaty of Alexandria. To this day the Rosetta Stone resides in the British Museum. Other treasures, like the Ghent Altarpiece were purchased by an Englishman in 1816, and gifted to the Kaiser Friedrich Museum in Berlin, where it hung until 1919.176 The taking of official property, to later be sold at public auction with the proceeds used as prize money for the victorious troops was a standing practice that continued until the end of the nineteenth century. This was often considered essential, as poor pay in most regular armies did not even cover the cost of lavish uniforms, never mind mess bills, and the ordinary soldier, typically with no private income to rely upon, was 171   De Clercq, Traites II, 293–99; Fyffe, C A History of Modern Europe, Vol I, 430–33 (Popular ed, 289–92). Separate Art V. 172  The 1814 Treaty of Paris. See Art XVIII. 173  Treaty of Paris 1815, Art IV. 174   Wellington, in Simpson, E (1995) The Spoils of War (NYC, Abrams) 101. 175   Hamilton, reprinted in Vrdoljak, A (2008) International Law, Museums and the Return of Cultural Objects (Cambridge, Cambridge University Press) 22. 176  Nicholas, L (1994) The Rape of Europa (Kent, Papermac) 122; Chamberlin, R (2003) Loot: The Heritage of Plunder (London, Sutton) 122–24; Simpson, E (1995) The Spoils of War (NYC, Abrams) 35; Houpt, S (2006) Museum of the Missing (Toronto, Madison) 33–34, 50; Rothenberg, G (2000) The Napoleonic Wars (London, Cassell) 151.

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given very little to exist upon. The practice of collecting spoils from official sources to be auctioned off began in the nineteenth century in the First Kandy War, where the exquisitely crafted gold and jewelled artifacts of the Ceylon royalty were broken up for the worth of their base metal. In India, the overall value of the prize money was often substantial. After Delhi was taken in 1857, some £350,000 of prize money was handed in to a general fund, as individual looting was prohibited. By the time the prize money was divided up, at the bottom of the scale, each private was awarded £17, the equivalent to a full year’s pay. A similar process occurred at the end of the Second China War in 1860, which concluded with the looting of the Summer Palace, from which every British private received around £4 share. The siege (ransom) of El Morro in 1862 generated prize money of £737,000, but when Manila was captured later in the same year, uncontrollable looting by the British soldiers broke out. In 1867 the British clashed with the Ashanti (in modern-day Ghana). When the Ashanti Kingdom was stormed, it was found to have seemingly limitless gold. The palace was ransacked of all things valuable. Most of the Ashanti gold, consistent with the trends of the period, ended up in museums who bid for the booty on the open market where it had been sold to produce prize money for the soldiers. The tablets of the Ethiopian Orthodox Church (The Magdala Treasures), regarded as representing the original Ark of the Covenant, were taken by the British from Ethiopia the following year, and also sold at auction. Twenty years later, the same fate awaited 1,000 brass plaques commemorating the Kingdom of Benin after they were defeated. These same processes continued into the Boxer Rebellion, with most nationalities of soldiers, civilians, and even some missionaries, involved in the practice of looting. The Japanese, Germans and Russians appear to have looted without discrimination. The English, although against the practice of looting, decided to place ‘in safekeeping’ all valuable items they found. The French and the Germans appropriated the priceless bronze astronomical instruments of the Imperial Observatory. The French claimed these because they had been made in France and presented to the Chinese emperor in the reign of Louis XIV. The Germans demanded them because they found them. In the end, the spoils were divided. Only the Americans, under strict orders from President William McKinley (1843–1901), were against looting in any form, stipulating that they ‘recognise no spoils of war’.177 The relatively enlightened American view, like that of most, if not all, of the other conventional belligerents of the age was fully entrenched in international law by the end of the nineteenth century. The complete prohibition of pillage was agreed in the 1863 Lieber Code,178 whilst the strict protection of private property was emphasised.179 The same prohibition was replicated in the 1874 Declaration Concerning the Laws and Customs of War,180 and the Hague Rules of 1899.181 The signatories to the 1907 177   McKinley, in Preston, D (2000) The Boxer Rebellion (NYC, Berkeley Books) 285. Also 187, 227, 287– 89, 294; Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 5, 46, 130, 187, 388, 421; Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 88, 96; Simpson, E (1995) The Spoils of War (NYC, Abrams) 36; Houpt, S (2006) Museum of the Missing (Toronto, Madison) 25–26; Saul, D (2002) The Indian Mutiny (London, Penguin) 303; Fowler, W (2005) Empires at War (NYC, Walker) 264; Lambert, A (2002) War at Sea in the Age of Sail (London, Cassell) 125. 178   Lieber Code, Art 44. 179   Lieber Code, Art 37. 180   International Declaration Concerning the Laws and Customs of War, Arts 18 and 39. 181   Hague Rules of 1899, Arts 28 and 47.

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Hague Convention Respecting the Laws and Customs of War on Land agreed that ‘the pillage of a town or place, even when taken by assault, is prohibited’,182 that ‘private property cannot be confiscated’183 and that ‘pillage is formally forbidden’.184 However, the question of status with regard to public, property was far less settled. For example, Article 36 of the Lieber Code stated: If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace.

With regard to warfare at sea, by the end of the nineteenth century, following the Spanish-American War, American President William McKinley went as far as to propose to the Hague Conference that all private property should be immune from capture at sea.185 In an attempt to civilise this area, rules were agreed relating to the semi-protected status of enemy merchant ships at the outbreak of hostilities.186 In 1909, Germany proposed that an International Prize Court be established to deal with questions of the confiscation of private property about neutral vessels. However, the German proposal fell away with the arrival of the war and the rapid development of total blockades and submarine warfare, where the object became to destroy, rather than capture, all traded goods with the enemy. Whilst seeking to overlook the positive developments in this area, key commentators of the period, such as Fredrick Engels (1820–95) took the failures as proof that: War and the organization for war [has] become a regular function of national life . . . the wealth of neighbors excited the greed of nations . . . Pillage seem[s] easier and even more honourable than acquisition of wealth by labour. War, previously waged only in revenge for attacks or to extend territory ha[s] become insufficient, [and is] now carried on for the sake of pure pillage.187

Engel’s suppositions were supported by the practice of taking large amounts of money from the defeated following the loss of conflicts. The 1842 Treaty of Nanjing between Great Britain and China required the Emperor of China to pay a total amount of US$21 million.188 The 1846 Treaty of Lahore required the Sikhs to pay a war indemnity of £1,500,000. This was in addition to the gift of the Kho-i-noor diamond, the ‘mountain of light’, to Queen Victoria. The second peace treaty with China in 1860, required the Chinese emperor to pay enormous indemnities – eight million taels.189 Paying for the ‘expenses of the war’ was imposed upon Denmark after their conflict

182  Art 28. See also Art 7 of the 1907 Convention Concerning Bombardment by Naval Forces in Time of War. 183  Art 46. 184  Art 47. 185   Coogan, J (1981) The End of Neutrality: The United States, Britain and Maritime Rights (Ithaca, Cornell University Press) 28. 186   Convention (VI) Relating to the Status of Merchant Ships 1907. 187  Engels, noted in Gallie, W (1978) Philosophers of Peace and War (Cambridge, Cambridge University Press) 76–77. 188  See Arts IV, VI, VII. 189  Simpson, E (1995) The Spoils of War (NYC, Abrams) 34; Hernon, I (2007) Britain’s Forgotten Wars. Colonial Campaigns in the 19th Century (London, Sutton) 573

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with Prussia and Austria in 1864.190 The same approach was used at the end of the conflict between Austria and Prussia in 1866.191 With the 1871 war between France and Germany, France was obliged to pay five million francs (and lost its provinces of Alsace and Lorraine).192 The 1895 Treaty of Shimonoseki between China and Japan required China to pay to Japan as a war indemnity the sum of 200,000,000 taels.193 Likewise, following the end of Boxer Rebellion in 1901 China agreed to pay the West an indemnity of 450,000,000 taels (or what was at that point US$335 million) over the following 39 years at 4 per cent annual interest.194 The only country that was standing out at this period as adopting a different approach was the United States, which preferred to pay for the territories of others that it acquired by force, rather than acquiring new territory and then giving the loser the bill for the costs of the war. Thus, with the Treaty of Paris of 1898 which concluded their hostilities with Spain, the United States agreed to pay Spain the sum of US$20 million, in exchange for them ceding to the United States Porto Rico, Guam and the Philippines.195 8 .  The First Half of the Twentieth Century A. Destruction

The question of the protection of cultural property in times of conflict began, as noted above, on a good note, with the turn of the century. This was soon added to with the 1907 Convention (IV) Respecting the Law and Customs of War on Land. This convention reiterated exactly the same rules from 1899 on the necessity of sparing, as far as possible, buildings dedicated to religion, art, science or charitable purposes, and historic monuments, provided they were not being used at the time for military purposes.196 It was added that it was the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs, to consist of large, stiff rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower portion white. Finally, and in a clear reflection of the 1874 proposal, it was recommended that all seizure of or destruction or wilful damage done to institutions of this character, historic monuments and works of art and science, be forbidden and made the subject of legal proceedings if the rule was violated.197 In many regards, these rules appear to have been recognised by the primary belligerents of the First 190  The 1864 Treaty of Peace Between Austria, Prussia and Denmark in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press) Art XII. 191  The 1866 Treaty of Peace Between Austria and Prussia in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press) Art XI. 192  The 1871 Treaty of Peace Between France and Germany in Mowat, R (1918) The Great European Treaties of the Nineteenth Century (Oxford, Oxford University Press) Art VII; Howard, M (2002) The FrancoPrussian War (London, Routledge) 449. 193  The 1895 Treaty of Shimonoseki, Art IV. 194  The full amount would never be paid. Starting in 1908, President Roosevelt turned over the US share to pay for Chinese students to be educated in the United States. See Boot, M (2002) The Savage Wars of Peace: Small Wars and the Rise of American Power (NYC, Basic) 97. 195  The 1898 Treaty of Paris in Birley, R (1944) Speeches and Documents in American History, Vol III (Oxford, Oxford University Press) 240, 241. 196   Hague 1907, see Arts 23 and 27. 197   Hague 1907, Art 56.

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World War. For example, the War Book of the German General Staff stipulated that when dealing with sieges, ‘churches, schools, libraries, museums and the like’, assuming they are distinguishable and not being used for defensive purposes, should be spared ‘so far as this is possible’.198 The optimism that accompanied the early practice of the twentieth century and the revised 1907 Hague Convention soon came to a direct halt after Notre Dame Cathedral was slightly damaged in a bombing raid within months of the First World War starting. Such problems quickly multiplied over a four-year period which would leave France with the loss of 480,000 houses and 750 historic buildings, including many historical churches. Some of the most notable losses involved the medieval Cloth Hall of the City of Ypres and the Louvain library. The Louvain University was founded in 1425. Its library possessed many priceless collections that were intentionally burnt after the building was fired as a reprisal against a community suspected of supporting partisans. Although the library of the Louvain was rebuilt with American aid, and in accordance with the Treaty of Versailles Germany made a restitution of books, it was burnt again in 1940 as a result of German artillery. The other major incident in France in the First World War involved the shelling of Rheims Cathedral, of clear significance in French memory, as this is where the coronation of French kings once occurred. It was shelled on the grounds of the military necessity of killing French soldiers who were allegedly using the spire as an artillery observation post. In addition, the air forces of the Axis also bombed a number of undefended Italian cities. Indeed, on the first day of hostilities against Italy, Austro-Hungarian aeroplanes indiscriminately attacked Venice with 10 bombs. Venice was bombed again in 1918, along with Padua, Treviso and Vicenza. Treviso, an undefended city, was hit particularly hard. Almost all of its churches were hit, some several times. In the air raid on Ravenna in 1916, a bomb was dropped on Sant’Apollinare Nuovo, one of the most important buildings of early Christendom, erected in the sixth century as a monument to the Ostrogoth king Theodorich. Despite the viscous nature of these acts, the foremost example of the destruction of cultural heritage occurred with the genocide against the Armenian people and the subsequent civil war that followed in 1920 where entire multicultural regions such as Smyra (now Izmir) were destroyed or occupied in whole or in part. Some 2,549 religious sites, 200 monasteries and 1,600 churches were vandalised, converted or turned into rubble. The Greeks responded in kind, destroying every mosque that existed in Athens. Decades later, when Turkey invaded Cyprus, echoes of cultural intolerance were clear in the vandalism and destruction of Greek Orthodox property between 1974 and 1976 at the Northern end of the island.199 Although the destruction of cultural property was not a considered an item in the war crimes trials that followed the First World War, it was clearly a topic of international importance as between 1922 and 1939 the global community repeatedly turned their attention to this area. The first instance occurred with the 1922–23 Hague Rules of Air Warfare. Although these rules never entered force, it was envisaged that monuments, if not used for military purposes, would enjoy immunity from bombardment. 198  Grossgeneralstab (1915) War Book of the German General Staff in trans Morgan, T (2005) (Pennsylvania, Stackpole Books) 36. 199   Kramer, A (2007) Dynamic of Destruction: Culture and Mass Killing in the First World War (Oxford, Oxford University Press) 8, 18–19, 55, 57, 236, 314; Bevan, R (2007) The Destruction of Memory. Architecture at War (London, Reaktion) 55–61, 163–69. Treaty of Versailles, 1919, Art 247 on reparations.

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The idea was that monuments would be clearly marked so as to be visible from the air. These locations were to be notified to other powers and could be inspected by neutral representatives, so as to ensure their non-military uses.200 Although the 1923 Hague Rules did not become legally binding, the 1935 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (the Roerich Pact) did enter into force.201 Despite the hopes that this would be an international convention, the agreement only came to cover the Americas. Nevertheless, it was agreed that ‘the treasures of culture’ would be respected and protected ‘in time of war and in peace’ unless they had been compromised by ‘military purposes’. Historic monuments, including museums, scientific, artistic, educational and cultural institutions, were to be considered as neutral and, as such, respected and protected by all belligerents. Such sites were to be recorded on an official and shared list as well as being identified by a distinctive flag.202 A supplementary 1938 Draft International Convention for the Protection of Historic Buildings and Works of Art in Times of War, never came into force.203 Although the Roerich Pact was the start that would provide the basis for real international work in this area in 1954, in the period between the First and Second World Wars, the limitations of this area were made particularly clear. Although some acts, such as when a squadron of British planes bombed the sacred pyramid of the Nuer at Dengkur in the African Sudan in 1928, demonstrated how lightly the British could take such responsibilities in ‘colonial contexts’,204 the main limitations were made apparent in three distinct civil wars when warfare and its aftermath tended to encompass belligerents determined to destroy the cultures of their enemies. The first instance of this was with the Russian Revolution, where the destruction of religious buildings and monuments of the former regime came in waves between 1917 and 1939. The problem in this instance was that most of the damage was done after the military campaigns had ended. Although some areas were saved, such as Saint Basil’s Cathedral on Red Square, dozens of churches and monasteries elsewhere in Moscow were destroyed, including Kazan Cathedral, built in 1625 to commemorate the liberation of Moscow from the Poles, and the gigantic Cathedral of Christ the Saviour built in 1883 to help remember the Russian victory over Napoleon. The ‘reconstructions’ by Joseph Stalin (1878–1953) saw these off, along with the Ascension Nunnery, one of the oldest buildings in Moscow and the famous Red Threshold, the place of coronation ceremonies. Similar destruction occurred all over the country, as thousands of churches were destroyed or turned into something else. Indeed, by 1930, 6,715 churches had been destroyed or closed, whilst as estimated 20 to 30 million painted icons were destroyed, used as fuel, chopping boards, lining for mine workings or as crates for vegetables. The Soviet satellites suffered comparably. Thus, Kiev saw 254 of its historic buildings, with at least one monastery dating back to the twelfth century, destroyed between the Revolution and the Second World War.205  Art XXVI.   167 LNTS, 289. 202  Arts 1, 3– 5. 203   Vrdoljak, A (2008) International Law, Museums and the Return of Cultural Objects (Cambridge, Cambridge University Press) 136–39. 204   Baker, N (2008) Human Smoke (London, Simon & Schuster) 17. 205  Akinsha, K (1995) Beautiful Loot. The Soviet Plunder of Europe’s Art Treasures (NYC, Random) 31, 58; Courtois, S et al (1999) The Black Book of Communism. Crimes, Terror, Repression (Massachusetts, Harvard University Press) 173; Zamoyski, A (2007) Warsaw 1920 (London, Harper) 60. 200 201

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The second instance occurred during the Irish Civil War. This process began in the war of independence with the burning of at least 200 ‘big houses’ or estates owned by well-to-do families. By the time of the Civil War, the targeting of cultural heritage, especially that connected with English history, was common. The most incredible example of destruction involved a garrison of Republican insurgents who occupied and converted part of the Irish Public Records office into a munitions storage area. The problem in this instance was that both sides were categorically stupid; thus, when the insurgents chose to fight and the new government obliged, a cache of explosives beneath most of the important historical records of Ireland dating back to the twelfth century, resulted in the erasure of large parts of the records of Irish history.206 The third instance involved the Weimar Republic, where the newly empowered Nazis sought to ‘cleanse’