The Convulsion of the Law of Peoples by the Doctrine of Peoples’ War

Abstract

As we have seen, the current war has led to all manner of breaches of the rules under the hitherto accepted law of peoples. They have mostly been justified by referring to changes in production technology, in weaponry, and in the nature of human intercourse, which brought previous provisions into conflict with the purpose that had been decisive for them, and nobody will dispute that the law of peoples has to take account of such changes. But it is thoroughly questionable here whether it should be left up to individual belligerent states to be judges in their own matter, and to decide for themselves which prescriptions of the law of peoples they still want to accept unchanged, and which they consider themselves justified in amending. Providing a remedy against this would be one of the first tasks of a new conference on reforming the law of peoples, insofar as one does not abandon the idea of regulating war under the law of peoples entirely. It is by no means impossible to create institutions that could put a stop to arbitrary distension of the law. A neutral court of experts, for example, which could settle disputes over the interpretation and scope of provisions of the law of peoples through expert opinions—possibly by majority and minority opinions—or at least substantially delimit them, is eminently conceivable. The need for a supra-state authority for these and similar disputes has at least been admitted officially, even by leading statesmen. Our times undoubtedly demand the further expansion and safeguarding of the law of peoples. At present, the law of peoples has got into a condition that one could perhaps best describe with the word disintegration. It is still there, and belligerents appeal to it if they have the option of accusing their enemies of infringing its provisions. And we have seen how often this has actually happened. But of course, nobody wants to be the guilty party. Thus, the former ambassador of the United States in Berlin, Mr. Gerard, recounts in his book My Four Years in Berlin, that the German Kaiser had lamented to him during a visit in 1915 that there was “no more international law”. But which government was the first to infringe the law of peoples in this war and thereby unravel it, Wilhelm II did not add.