The Development and Principles of International Humanitarian Law

Wolff Heintschel von Heinegg, Michael N. Schmitt

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351545075
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

The essays selected for the first part of this volume offer an insight into the development, as distinguished from the history, of international humanitarian law. The focus of the majority of the works reprinted here is on an analysis of the adequacy of the law as it stood at the time of the respective publication and in the light of existing contemporary armed conflicts and military operations. Thus, the reader is afforded an in-depth look at the early roots of international humanitarian law, the continuing relevance of that body of law despite advances in weapons technology and the efforts to progressively develop it. International humanitarian law's development cannot be considered in isolation from its principles. The essays selected for the second part of the volume deal with the two fundamental principles underlying all of international humanitarian law: humanity and military necessity. The articles on the principles of humanity include reflections on the famous Martens Clause, and the analyses of military necessity take no account of 'Kriegsraison'. Moreover, they offer proof of the customary character of the principle of distinction in land, air and naval warfare.

Part I
Development

[1]
Shakespeare's Henry the Fifth and the Law of War

By Theodor Meron*

I. Introduction

William Shakespeare wrote during the Elizabethan Renaissance, a period of revived and intense interest in history.¹ The Life of Henry the Fifth, written in 1599,² one of Shakespeare's histories, is a patriotic, epic portrayal of a phase in the bloody Hundred Years' War (1337-1453) between England and France. It describes a medieval campaign led by a chivalrous and virtuous king, who could perhaps do wrong but not a great deal of wrong, and in which the few acting in a just cause defeat the many. In this play, Shakespeare relives past glories.

King Henry V (1387-1422) succeeded to the throne of Henry IV in 1413 and two years later invaded France. The play telescopes the phase of the Hundred Years' War that started in 1415 with the landing of Henry's army near Harfleur and its victory at Agincourt and ended in 1420 with the conclusion of the Treaty of Troyes, which pronounced Henry the heir to the French throne and seemed to mark the ascendancy of England—until Joan of Arc's rallying of the French in 1429 sparked a turning point eventually leading to the defeat of England. The play is an ideal vehicle for consideration of the late medieval practice and rules of warfare: first, because it narrates a wide range of relevant events, including assertion of the just cause of the war, issuance of an ultimatum or declaration of war, episodes showing the conduct of the war and negotiation of the treaty of peace; and second, because it is not an imaginary tale but, on the whole, a rather close reflection of the sixteenth-century chronicles that were its principal sources, those of Raphael Holinshed³ (1498-ca. 1580) and Edward Hall⁴ (or Halle) (ca. 1498-1547).

My purposes in this essay are to provide an international lawyer's commentary on the play by examining how Shakespeare used international law for his dramatic ends; to compare his version with its principal sources,⁵ the chronicles of Holinshed and Hall, and occasionally with other historians' views as to what transpired during the reign of Henry V; to assess Shakespeare's text in the light of fifteenth- and sixteenth-century norms of jus gentium, primarily as reflected in the writings of contemporary jurists and earlier medieval jurists; and, now and then, to show how attitudes toward the law of war have changed since Shakespeare's times, and thus to illustrate the law's evolution.

My tasks were made easier by the works of modern writers on medieval and Renaissance law such as Maurice Keen, on whom I often draw.

II. The Legal Environment

Medieval Kings of England, including Henry V, occasionally promulgated ordinances governing the conduct of war and severely punishing violators. Through Holinshed's Chronicles, Shakespeare learned about Henry V's proclamations of rules of war. Holinshed explicitly mentions these proclamations and they are reflected in the play. Thus, when told about the likely execution of a soldier for having robbed a church, Shakespeare's Henry declares: "We would have all such offenders so cut off. And we give express charge that in our marches through the country there be nothing compell'd from the villages, nothing taken but paid for, none of the French upbraided or abused in disdainful language" (3, 6, 111-15).

This proclamation, which anticipated the modern law of war, is explained by Shakespeare on grounds of effectiveness rather than abstract humanity, in much the same way as is taught by modern academies of military law: "For when lenity and cruelty play for a kingdom, the gentler gamester is the soonest winner" (id., 116-17).

A glance at the titles of the principal works of jurists of Henry's time—such as Tractatus de bello, de represaliis et de duello by Giovanni da Legnano (completed in 1360 and first published in 1477), The Tree of Battles (published ca. 1387) by Honoré Bonet (or Bouvet, as he is now known) and Book of Fayttes of Armes and of Chyvalrye by Christine de Pisan (written in 1408-1409)—suffices to demonstrate that at the time of Henry V, the bulk ofjus gentium was the law relating to war, i.e., the law of arms or jus armorum, though there were also rules of canon and civil law pertaining to soldiers.⁶ The customary rules of jus armorum, or jus militare, regulated the conduct of soldiers within Christendom,⁷ but not between Christians and Muslims or other non-Christians. Jus armorum was not, it must be stressed, a body of law governing the relations between contending nations, but a body of norms governing the conduct of warring men.⁸The law of arms was in fact the law of chivalry applicable to knights and to nobility, that is, to those who had the right to bear arms and to make war,⁹ regardless of their nationality.

The law of chivalry could be enforced by courts of chivalry, which routinely handled disputes between knights of different nationality, the curia militaris or the court of knights (e.g., the courts held by such magistri militum as the Constable and the Marshal in England, the courts of the Constable and the Marshal of France, and, with broader jurisdiction, the French Parlement de Paris). The most effective sanction ensuring compliance with the rules of jus armorum was the knight's fear of dishonor and public reprobation, feelings associated with the reversal (placing upside down) of a knight's coat of arms {subversio armorum), a measure frequently imposed for breach of promise to pay ransom.¹⁰ Holinshed's Chronicles of the reigns of medieval English monarchs—which informed Shakespeare's histories—contain many references to such chivalric practices as trial by combat and letters of defiance (a medieval form of declarations of war) and they are occasionally reflected in those histories. On the basis of Holinshed, Shakespeare's French King Charles VI commands his herald, Montjoy, to "greet England with our sharp defiance" (3, 5, 37) and Montjoy accordingly tells Henry: "Thus says my King: . . . To this add defiance, and tell [Henry], for conclusion, he hath betrayed his followers, whose condemnation is pronounc'd" (3, 6, 123-41).

In Henry V, Shakespeare wrote of a late medieval war fought between Catholic kings who were committed, at least in principle, to the medieval chivalric law of arms. Despite those constraints, which had called for a modicum of humane conduct, this war was both cruel and bloody.

In contrast to the dramatist's familiarity with Holinshed and Hall, "[i]t cannot be maintained that Shakespeare even knew of the works"¹¹ of the various contemporary writers on jus gentium.¹² These include the Spanish Dominican Francisco de Vitoria (1480-1546), who in 1532 delivered his famous lectures De Indis et de jure belli hispanorum in barbaros; Alberico Gentili (1552-1608), Shakespeare's contemporary in England;¹³ and Francisco Suárez (1548-1617), the Spanish Jesuit scholar.¹⁴ The best-known Renaissance writer on international law, the Dutchman Hugo Grotius (1583-1645), wrote somewhat later (his magisterial De jure belli ac pacis of 1625¹⁵ appeared after Shakespeare's death). There is no evidence that the sixteenth-century writers on jus gentium influenced Shakespeare the dramatist either directly or indirectly. However, their work, and sometimes that of earlier, medieval writers, demonstrates the legal environment of the era.

The fact that Shakespeare preceded the birth of modern international law does not mean that no broadly recognized rules applied, at least in principle, to nations' conduct of war. Indeed, much as in the Middle Ages, most rules of jus gentium formed part of the law of war and there was hardly any discrete law of peace,¹⁶ The law of peace was largely limited to rules dealing with the termination of war and the conclusion of peace. For the most part, however, as in the medieval period, the sixteenth-century law of warfare "was not international but municipal and military."¹⁷ Sixteenth-century treatises on the law of war failed, on the whole, to distinguish among strategy, military discipline and legal rules governing warfare.¹⁸ Not surprisingly, the lack of clarity regarding these distinctions also characterizes Shakespeare's histories.¹⁹

III. Just War: Jus ad Bellum and Jus in Bello

In invading France in 1415, Henry hoped not only to recover lost territory but, far more importantly, to reactivate the English claim to the French crown that had been asserted—though never pursued in such earnestness—since the beginning of the Hundred Years' War. That claim derived from Isabel, the mother of his great-grandfather Edward III (Isabel was the daughter of French King Philip IV and the wife of Edward II). In the play, Henry is anxious to have the Archbishop of Canterbury reassure him that the Salic law;²⁰ which disqualified women and the female line from succession to the crown of France, does not bar his claim. He commands the Archbishop to give him an objective and balanced opinion:

King. Why the law Salic that they have in France
Or should or should not bar us in our claim.
And God forbid, my dear and faithful lord,
That you should fashion, wrest, or bow your reading. . . .

[1, 2, 11-14]

The Archbishop reassures the King that his claim to the throne of France is just.²¹

The modern reader cannot but marvel at the craftsmanship and timelessness of Canterbury's legal arguments: Territorially, Salic land does not mean France but a specific area in Germany. The law was wrongly interpreted as applying to France. Since the Salic lands became a French possession under the reign of Charles the Great, 421 years after the death of the supposed author of the Salic law—the Frankish King Pharamond—its continued vitality is in doubt. French kings themselves have succeeded to the crown, in Shakespeare's words, through "the right and title of the female." They are therefore precluded from invoking the law against Henry.²² Finally, Henry's claim is bolstered by the Old Testament, which explicitly commands that "[i]f a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter."²³ The biblical argument should not necessarily ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction: Wolff Heintschel von Heinegg
• PART I DEVELOPMENT
• PART II PRINCIPLES
• Name Index