History of Global Arms Transfer, 10 (2020), pp. 83-120

International Lawyers’ Failing:
Outlawing Weapons as an Imperfect
Project of the Classical Laws of War
By MILOŠ VEC*
Why are some weapons regarded as intrinsically evil and others are not? This
article intends to supply a history of the stigmatization of weapons on land
warfare in the era often labelled ‘classical international law’. This era is packed
with discourses not just about war but also treaties’ restrictions on warfare
technologies. Even if war itself was considered to be ‘just’, not every military
strategy and not every weapon was seen as a legitimate tool. This article takes amulti-normative perspective to examine entanglements between legal norms,
morality, and social custom (like military honour codes) and their impact on the
project of outlawing particular methods of killing. Although this article’s goal is
to draw a detailed sketch of nineteenth-century international law, it will
nonetheless go further back in time to include earlier writings because nineteenthcentury discourse cannot be understood without references to pre-modern
international law authorities such as Hugo Grotius, Emer de Vattel, or Immanuel
Kant.
Why are some weapons regarded as intrinsically evil and others are not? This article
intends to supply a history of the stigmatization of weapons on land warfare in the era oftenlabelled ‘classical international law’.1 This era is packed with discourses not just about war
but also treaties’ restrictions on warfare technologies. Even if war itself was considered tobe ‘just’, not every military strategy and not every weapon was seen as a legitimate tool.
This article seeks to analyse the issue from the perspective of a legal historian but in a
broader normative framework. The moral, religious, ethical, technical, or legal narratives
that were used to prohibit the use of certain weapons under international law before theFirst World War shall be laid out in detail. The eminent historian of international law,
Martti Koskenniemi, emphasized the importance of that era for the regulation of warfare in
his seminal work in 2001: ‘… the laws of war have perhaps never before nor since theperiod between 1870 and 1914 been studied with as much enthusiasm. Optimism in reason
and the perfectibility of human nature laid the groundwork for the view that men could be
educated to wage war in a civilized way’.2
It was ‘the golden era of efforts to limit warfare through international law’.3 Today, theseinternational legal studies are as relevant as ever. Can any common pattern or structures of* Author’s Affiliation: Miloš Vec, Professor of European legal and constitutional history at Vienna University
and Permanent Fellow at the Institut für die Wissenschaften vom Menschen (IWM: Institute for Human
Sciences), Vienna.
1 Koskenniemi, ‘Legacy of the nineteenth century’, pp. 141-53.
2 Koskenniemi, The gentle civilizer of nations, p. 87.
3 Price, The chemical weapons taboo, p. 164.

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argumentation be observed? What were the purposes behind such bans? Did such
restrictions ‘humanize’ warfare and promote pacifism following the advent of the FirstWorld War? Or did these very restrictions help to legitimize war itself and were thus only a
fig leaf for ferocious military acts?
To answer these questions, this article will consider legal, political and philosophicaldiscourses from the mid-seventeenth century up until the aftermath of the First World War(including perspectives of the military) with a particular focus on developments in the‘long’ nineteenth century. The historical sources are mostly writings from legal, political,
and philosophical scholarship. Treaties play only a small role4 due to their historicalabsence in the period before the Saint Petersburg Declaration and Hague Conventions andDeclarations in this international legal discourse and are therefore not the main focus of
this article. This article aims to include authors from and sources on a vast range ofcountries including Argentina, Austria-Hungary, Belgium, Chile, China, Denmark, France,
Germany, Italy, the Netherlands, Japan, Russia, Spain, Switzerland, the United Kingdom(UK), and the United States of America (USA). However, it must be admitted that thisarticle is almost entirely Eurocentric. The debate is overwhelmingly traced through theperspective of European doctrine (but through the eyes of different nationalities, assuming
potential differences 5) due to the author’s lack of language abilities necessary to readprimary sources from Asian or African writers. At the same time, the historical international
legal discourse was, in fact, being increasingly dominated by Europeans, and the spread oflegal doctrines was supported by economic and military expansion as well as global trade
between the early modern and nineteenth centuries.6 Although this article’s goal is to draw
a detailed sketch of nineteenth-century international law, it will nonetheless go further backin time to include earlier writings because nineteenth-century discourse cannot be
understood without references to pre-modern international law authorities like Hugo
Grotius, Emer de Vattel, or Immanuel Kant.7

I. Pariah weapons in international legal history: A failed moralization of law?
‘Pariah’ is not a term from international legal historical sources, so the phrase rarely
appears verbatim in any written record. Placing it as the epistemological centre andconceptual focus of this article carries the danger of producing anachronisms.
This article takes an approach based on the history of science (Wissenschaftsgeschichte)
to the history of the law of war and explicitly excludes the debate on military strategies,
which are not based on weapons in a material sense. The scope is limited to weapons as
artifacts or means, defined as ‘a device, a munition, and implement, a substance, an object,
or a piece of equipment.’8 It is necessary to make this decision explicit because historicalsources very often combine the discussion of outlawed weapons with that of potentiallyimmoral or illegal strategies.9
4 Roberts, ‘Against war’, p. 319.
5 Roberts, Is international law international?
6 Onuma, International law in a transcivilizational world, Chs. I and IV; Ballantyne and Burton, ‘Imperien und

Globalität’, pp. 287-433; Burbank and Cooper, Empires in world history, pp. 287-331; Bayly, Die Geburt dermodernen Welt, pp. 248-99; Darwin, Der imperiale Traum, pp. 283-346; Osterhammel, Die Verwandlung derWelt, pp. 674-736.
7 Kadelbach, Kleinlein, and Roth-Isigkeit, eds., System, order, and international law.
8 Haines, ‘The developing law of weapons’, p. 276.
9 Heineccius, A methodical system of universal law: Or, the laws of nature and nations, II, Ch. IX, pp. 194-95.

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A similar pattern of discourse and its inherent problems can be found in the concept of‘weapons of mass destruction’ (WMD) that has been investigated by Oren and Solomon as
well as by Bentley.10 This notion played a crucial role during the 2003 invasion in Iraq by
the Coalition forces led by the USA but can be terminologically traced back to the interwar
period. Oren and Solomon warn us not to treat WMD ‘as if it were a self-evident, fixed
concept.’11 They try to historicize the concept of WMD and want to ‘dispel the illusion thatit has a stable, unambiguous meaning’.12 Transferring this important ambition to the fieldof pariah weapons therefore brings analogous methodological challenges of changing
historical semantics and also of avoiding anachronisms of projecting the notion of pariah
weapons onto epochs in which the word was unknown.
At the same time, functionally similar notions of ‘pariah weapons’ can be found inhistorical sources from the eighteenth to the twentieth century that discuss warfare and its
limits. The multi-normative discourses around these terms and concepts have to be treatedvery carefully, given that the story of the law of war has often been told in a progress
narrative focusing on the mitigation of war.13 For most of the past, the use of force wasconsidered legal in general; just-war doctrine provided a yardstick. International law’s rolein this scheme was to balance necessity and humanity14 in warfare.
1. The real actors of the outlawing process: International lawyers and their stigmatizing
terminology
The idea closest to the ‘pariah’ concept in international legal doctrine are so-called
intrinsically evil (‘mala in se’15) weapons. The notion stigmatizes certain types of weaponsand methods in warfare. Many histories of international law that deal with the law of war
focus on state interest,16 military discipline,17 and humanitarian principles18 as driving
forces to outlaw the use of certain weapons. However, the role and contribution of what
Schachter called ‘the invisible college of international lawyers’19 in his article in 1977 are
crucial for this process.
A shared professional moral and religious homogeneity among international lawyers was
the central prerequisite to express outlawing demands in legal doctrine. At the same time,
the articulation of such demands has to be contextualized within the colonial and imperial
mindset of international lawyers.20 It needs to be seen as a symbolic act of delegitimationby which jurists comforted and self-ensured their own supreme status of civilization. This
perspective also explains why the project of moralizing international law and with it the‘pariahization’ of war weapons failed in the long nineteenth century and often had merely arhetorical character. In particular, the language of stigmatization provides evidence of this
10 Oren and Solomon, ‘WMD: historicizing the concept’; Bentley, Weapons of mass destruction.
11 Oren and Solomon, ‘WMD: historicizing the concept’, p. 1.
12 ibid, p. 3.
13 Neff, War and the law of nations, p. 163. Neff states ‘In sum, the nineteenth century witnessed impressive

progress in the codification and elaboration of the rules of war – and, in the process, towards a gradual limitationon the destruction and suffering of war’. ibid., p. 191.
14 Lingen, Crimes against Humanity, p. 15 (on the concept); Hayashi, ‘Military necessity as normative
indifference’, pp. 675-782.
15 Bolton and Minor, ‘International campaign to abolish nuclear weapons’ operationalizations’, p. 385.
16 af Jochnik and Normand, The legitimation of violence, pp. 49-95.
17 Benvenisti and Cohen, ‘War is governance’, pp. 1363-416.
18 Klose, ‘Abolition and establishing humanity as an international norm’, pp. 169-86; Lingen, Crimes against
humanity, p. 588.
19 Schachter, The invisible college of international lawyers, p. 217.
20 Anghie, Imperialism, sovereignty and the making of international law.

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Image 1: Sometimes, the ‘the invisible college of international lawyers’ was made visible,
such as here on the title page of an 1874 Issue of ‘Harper’s Weekly’ from 14 November
1874.
Source: Harper’s Weekly (14 November 1874)

rhetorically loaded religious terminology and categories from moral theology, such as
referring to a given category as ‘sacrosanct’ 21 or threatening perpetrators with a‘condamnation solennelle’ 22 (solemn condemnation) if they did not comply with theexisting moral and legal rules that imposed restrictions on the means of warfare among socalled civilized states. Furthermore, our transcivilizational standards are sometimes
expressed by the reference to a ‘taboo’,23 as laid out in a number of newer publications,some of which were published by members of this project group. Michelle Bentley
reminded us that the taboo served ‘as strategic narrative’ in her 2018 article:24… The taboo is a complex construction, which encompasses a range of ideas: from theidea that these weapons are inherently repulsive, to the idea that their use is immoral, tothe idea that the nature of this weapons demand that they be eliminated, to the idea
violators must be punished. […] This paper does argue, however, that narrative
construction is also a case in which the ideals of the taboo can be broken apart, andeach part used selectively and manipulated to fit very specific political aims.25
Thus, the task for legal history would be to critically assess the justification narratives
and rhetoric of the standards and criteria of outlawing weapons.

21 Bentley, ‘Trump and the taboo’, p. 1.
22 Fiore, Nouveau Droit International Public, II, p. 279.
23 Price, The chemical weapons taboo.
24 Bentley, ‘Trump and the taboo’, p. 9.
25 ibid, p. 14.

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2. The importance of normative entanglements‘Pariah’ encompasses a moral verdict, referring to discriminatory practices. International
legal provisions are entangled in multiple ways with other normative orders; in this casethey refer – implicitly or explicitly – to morality when outlawing the use of particular types
of weapons. Two normative contexts of such verdicts and their multi-faceted entanglements
shall be highlighted in this regard.
a) International law and domestic law
All histories of international law should take domestic legal provisions into account as they
are typically the forerunners of regulations on an international level. This is the case forpoison, which was and still is stigmatized by an overwhelming number of national criminal
codes and as well as – as we will see later – by international law. In addition, theinternational law of war was often inspired by domestic military regulations as the(American) Lieber code (which also included prohibitions of the use of poison).26 Domestic
provisions also serve as an implicit reference point for jurists trained in a specific domestic
legal system.
b) Multi-normativity as an analytical framework
Specifying that not all weapons were considered equal by normative standards also implies
the possibility of complex interactions and even contradictions between plural and different
standards. This normative plurality might primarily affect law in that domestic legal
provisions could collide with international law – whether founded in treaties or customarylaw. Yet, normative pluralism goes beyond such inter-legal relations. This article’s
argument is that extra-legal normative orders, such as ethics, morality, religion, social
custom (like military conventions, ‘chivalric codes of combat’,27 martial honour, ‘military
honour’ 28), or (with increasing relevance in the twenty-first century) technologicalstandards need to be considered to understand the logic of outlawing pariah weapons. A
mere legal perspective would not be sufficient to comprehend the stigmatization of certain
types of weapons by statutory and international law. In contrast, only the close interactions
and entanglements of moral and martial honour and (international) legal norms cansufficiently explain the aversion to such weapons. In addition, one might argue that theinherent structure/weakness of international law to enforce its regulations further enhances
the necessity of moral arguments when outlawing certain practices.
Most social interactions are regulated by plural norms concurrently; thus ‘multinormativity’29 is typical and not exceptional. One should not expect conformance of thesevarious normative orders when assessing certain types of weapons. In other words, the factthat one normative order (e.g. morality) expresses uneasiness with a certain type of weapon
does not necessarily imply that another normative order (e.g. international law) shares thisview. These legal approaches stand in complex interaction with moral convictions andsocial conventions that crystallized in the writings of international lawyers. The interaction
26 Witt, Lincoln’s code, p. 2, 4, 183; Price, The chemical weapons taboo, p. 20.
27 Witt, Lincoln’s code, p. 18.
28 Bernard, ‘Growth of laws and the usages of war’, p. 89. See: Liivoja, ‘Law and honor’, pp. 143-65; Liivoja,‘Military honour and modern law of armed conflict’, pp. 75-100.
29 Vec, ‘Multinormativität in der Rechtsgeschichte’, pp. 155-66.

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might be complex and particularly dependent on actors expressing their particular views incertain situations.
3. ‘Pariah Weapons’ as a neglected topic in international legal historiography
This topic of limiting war technologies is not only of historical relevance. In an epoch
marked by accelerated technological innovations, new challenges and new threats tointernational human rights and world peace arise. ‘Lethal autonomous weapons systems(LAWS)’, ‘unmanned aerial vehicles’, ‘military nanotechnology’, and ‘cyberwar’,30 ‘hybrid
conflicts’ and ‘New Wars’31 question our traditional assumptions and legal instruments, as
imposed by domestic and international law: ‘In the twenty-first century, the pace oftechnological change in warfare has quickened.’32 All the more, it should be our primordialinterest to analyze legitimations and de-legitimations of particular warfare technologies inpast centuries. Often, international legal debates refer to experience, yet experience is asocial construction of the past, which has always had its leeways. Therefore, there is a clear
necessity to historicize ideas, concepts, and motives of normative restraints. Interestingly,
the historical research on limitations of warfare technology still seems relatively scarce33,
despite a number of publications 34, and particularly compared to the vast amount ofliterature on just war doctrine or other legitimations of warfare that focus on the right toresort to war (jus ad bellum).35 Historical case studies on the interdiction of certain types of
weapons seem to be much rarer in comparison.36

II. B
 efore IHL was introduced: Vivid discussions and the danger ofanachronisms
Today, the principal places for the debate on outlawing weapons would be international
humanitarian law (IHL) and disarmament law. These particular fields of international law
have their roots in the nineteenth and twentieth centuries. However, IHL is a neologism that
had its breakthrough only recently, in the 1980s.37 As a relatively modern concept, it shifted
the focus in favour of particular interests. Those interests are not necessarily identical withhistorical regulations; therefore, the danger of anachronism arises. Historically, the debate
to outlaw certain weapons was as argued in the context of the ‘law of war’ (jus in bello).
Such shifts of concept matter and should not be underestimated in their impact.
Historically, this issue was of vital relevance – probably even more than it is today. In otherwords, the nineteenth-century perspective on the issue was different than today’s wording
30 Laufer, ‘War, weapons, and watchdogs’, pp. 62-74.
31 Kaldor and Chinkin, International law and new wars.
32 Schmitt, ‘War, technology and the law of armed conflict’, p. 137.
33 Neff, War and the law of nations, p. 1; Liivoja, ‘Technological change and the evolution of the law of war,p. 1164.
34 O’Connell, Of arms and men; Boot, War made new; Gillespie, A history of the laws of war; Keen, Laws of
war in the late Middle Ages; Neff, War and the law of nations.
35 See recently Simon, ‘Myth of Liberum Ius ad Bellum’, pp. 113-36; Bernstorff, ‘Use of force in internationallaw before World War I’, pp. 233-60; Verdebout, ‘Contemporary discourse on the use of force in the nineteenth
century’, pp. 223-46.
36 See e.g. Tannenwald, ‘Stigmatizing the bomb’, International Security 29 (2005), pp. 5-49; Price, ‘A
genealogy of the chemical weapons taboo’, International Organization, 49 (1995), pp. 73-103; ibid., The
chemical weapons taboo.
37 Alexander, ‘A short history of international humanitarian law’, p. 110.

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Figure 1: Emergence and conceptual rise of ‘international humanitarian law’, compared to‘law of war’.
Source: Google Books Ngram Viewer (https://books.google.com/ngrams/), 31 Jan 2019.

of IHL suggests,38 which is why this article speaks of the modern law of war as the legal
context of pariah weapons.
1. A scarce presence in international treaty law
When analysing pariah weapons in international law, today’s international lawyers firstexamine international treaties and customary international law. However, this approach canhardly be used for historical analysis; combing through international treaties turned out tobe a fruitless endeavour, since there are few major or important treaties for most of theperiod before the Hague Conferences. A recently published Swiss legal history dissertation
on early modern peace treaties refers to a number of provisions on demilitarisation.39 These
early modern European bi- and multilateral peace treaties included regulations on limiting
artillery and reducing fortresses on the side of the losers. But none of them aimed to ban
the use of particular weapon technologies as a whole. Similar observations can be madewith regards to the late nineteenth and early twentieth century Japanese and Chinese treaty
collections or analysis, which also did not mention any restrictions of particular warfare
technologies.40
Contemporary late eighteenth- and early nineteenth-century authors quoted some(isolated) provisions against certain weapons from treaties between European powers inpremodern Europe. Yet, those treaties already were a historical phenomenon at that time. In
1821, German jurist Johann Ludwig Klüber referred to the existence of treaties explicitly
regulating the manners of war and quoted an unnamed treaty of 1675 that prohibited theuse of poisoned weapons.41 German international lawyer Georg Friedrich von Martens
38 Schäfer, ‘The 150th anniversary of the St Petersburg Declaration’, pp. 505, 508.
39 Huwiler, De Pace – De Bello, pp. 320-40, 461, 479.
40 Matsudaira, Völkerrechtlichen Verträge des Kaiserthums Japan; Takahashi, Cases on international law

during the Chino-Japanese war; Takahashi, International law applied to the Russo-Japanese War; MacMurray,ed., Treaties and agreements with and concerning China, vols. 1 and 2.
41 Klüber, Europäisches Völkerrecht, p. 398. Further references to such a treaty of 1675 can be found invarious historical sources: Fleming, Der Vollkommene Teutsche Soldat, P. III, C.VI, § 18 (p. 199); Beust,89

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noted in 1795 that such sources had a highly isolated field of application and were thus ofonly limited value when it came to deriving general principles of international law:
The use of red hot shot [invented 1574, at the siege of Dantzick], of chain and bar shot,of carcasses filled with combustibles, boiling pitch, &c. have sometimes been
proscribed by particular conventions between maritime powers. These conventions,however, extend no further than the war for which they are made; and, besides, they arenever applicable except in engagements of vessel for vessel.42
For most of the nineteenth century, until its last decade in which the famous Hague
conference took place and its eponymous treaty collection soon followed, it seems that nota single treaty prohibited the use of particular weapons except for the Saint Petersburg
Declaration of 1868. This is highly interesting and also a slight surprise as the nineteenth
century faced a so-called ‘treaty revolution’;43 the number of bi- and multilateral treaties
rose dramatically, and international legal doctrine discovered new types of treaties: the socalled ‘lawmaking treaties’.44 With regards to international legal sources, the nineteenth
century was marked by a landslide shift to treaties and customary international law. Still,this 19th-century treaty revolution came late in the field of weapons regulation; not many
wars were fought between European powers before the Crimean War and the arms races
among European countries in the late nineteenth century. Efforts for codification of thelaws of war were therefore mainly undertaken at the very end of the century andconcentrated on in the context of the two Hague conferences in 1899 and 1907 due to theEurocentricity of the international lawyers. At these conferences, modern international
treaty law came into focus, and along with the rhetorically impressive Martens Clause,
these conferences’ legal outcome was a milestone in international treaty law that led theway for further codification projects. In the preceding years, treaty law’s diminished role
had allowed other kinds of legal sources to develop, which brought particular customs anddoctrines into focus. However, customary international law was obviously not theappropriate instrument for any reform projects.
2. Jurists replace a legislator
In fact, jurists were primarily the ones deliberating on restrictions, liaising internationallaw with their moral convictions, and then finally formulating norms, thus establishinginternational legal standards. The debate mainly took place within the genre of dissertations
and textbooks, which spread remarkably during the nineteenth century;45 quite a number ofthem received further editions, attracted annotations by colleagues, or were translated into
other languages 46 (in this article, English editions are referenced when available).
Contemporary bibliographies on international legal writings appeared and listed
publications by various jurists about forbidden weapons or prohibited methods of warfare
Observationes Militares, V, C. III, Observatio CVIII, § 1, 12. (p. 236); Grotius, Drey Bücher von Kriegs= undFriedens=Rechten, L.III, C. IV, XVI.1 (p. 59) footnote 58. – A similar provision is said to be included in anothertreaty of 1702: Beust, Observationes Militares, I, C. II, Observatio XXI, § 1, 4. (p. 27); Rohr, Einleitung zur
Ceremoniel-Wissenschafft, P.II, C.VII, § 29 (p. 489).
42 Martens, Summary of the law of nations, VIII, p. 282.
43 Keene, ‘Treaty-making revolution of the nineteenth century’, pp. 475-500.
44 Vec, ‘Recht und Normierung in der Industriellen Revolution’, pp. 104-26.
45 Macalister-Smith and Schwietzke, ‘Bibliography of textbooks and comprehensive treatises’, pp. 75-142.
46 ibid.

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written in distinct sections.47 Interestingly, the most famous bibliography, published in
Regensburg in 1785, only referred to poisonous weapons explicitly in this regard.48 Laterduring that period, the first legal journals appeared that were only dedicated to the topic ofinternational law.49
In a situation in which positive treaty law on pariah weapons was almost completely
lacking in international relations apart from the St Petersburg Declaration and the Hague
Conventions and Declarations, the writings of these jurists were an important source ofnineteenth-century international law50 (nonetheless, it was highly disputed how to classify
these sources from a systematic standpoint). International lawyers were aware of that fact
and sometimes listed the ‘text-writers of authority, showing what is the approved usage ofnations’ first in the canon of the sources of international law.51
Interestingly, the statements of these text writers were sometimes presented in a very
normative fashion, presumably to cover one’s own moral convictions and attitudes.
Nevertheless, some writers claimed explicitly in their arguments that they merely referred
to generally accepted historical authorities and in particular to legal masterminds of theseventeenth and eighteenth century.52 Some textbooks on the law of nature and of nations
even presented their statements as legal codes in an attempt to have them appear neutral
and of normative value. These textbooks’ language and formal styles were deliberately
designed to evoke an association with neutral legal codes. The books’ contents were
presented in paragraphs led by ‘§’-signs. Their alleged legal character served as areplacement for actual legal arguments; the author wrote as an authority and declaredhimself able to give mere opinions normative character and therefore did not need to justify
his statements.
Yet, jurists were not the only ones engaged in these debates, and legal perspectives had
no monopoly on the discourse on the law of war. Historically, there has been a broad rangeof contributions from writers with different scientific backgrounds: natural law, theology,
political science, and moral philosophy. Practical philosophers Francis Hutcheson53 andJohann Georg Heinrich Feder,54 as well as the Lutheran theologian and philosopher JohannFranz Buddeus,55 or the Catholic theologian Augustin Schelle56 from Salzburg, discussed
the use of poisoned weapons in the eighteenth century.
Sometimes justifications for interdictions were relatively unclear when it came to their
exact normative foundation. The authors would claim that a certain weapon was ‘illicit’ or‘forbidden’ without referencing the normative order that led them to that conclusion. The
terms they used were not precisely defined but needed – and still need – to be interpretedby the reader. Others were using legal terminology and manners of war (as a social custom)almost interchangeably. Klüber used the French term loi de guerre and translated it as
Kriegsmanier and Kriegsgebrauch (‘manners of war’) in 1819.57 In German scholar and
47 Kamptz, Neue Literatur des Völkerrechts, p. 334f.
48 Ompteda, Litteratur des gesammten sowohl natürlichen als positiven Völkerrechts, pp. 636-7.
49 Hueck, ‘Gründung völkerrechtlicher Zeitschriften in Deutschland im internationalen Vergleich’, pp. 379-

420.

50 Vec, ‘Sources in the 19th century European tradition’, pp. 121-45.
51 Wheaton/Dana, Elements of international law, p. 23.
52 Martini, Lehrbegriff des Natur= Staats= und Völkerrechts, p. 122. Martini references Heineccius, Wolff,

Gundling, Gunner.
53 Hutcheson, Short introduction to moral philosophy, p. 335.
54 Feder, Lehrbuch der Praktischen Philosophie, p. 163.
55 Buddeus, Lichts der Weisheit, p. 494f.
56 Schelle, Praktische Philosophie, pp. 61, 343.
57 Klüber, Droit des gens moderne de L’europe, p. 384.

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philosopher Friedrich Saalfeld’s ‘Handbuch des positiven Völkerrechts’ (Handbook of
Positive International Law), which was published in 1833, terminology ‘manners of war’
were all common and legal practices during wartime.58 Eighteenth century European jurist
Johann Gottlieb Heineccius refers in 1738 to the ‘mores gentium humaniorum’, which wastranslated as ‘the manners of more civilized nations’ and then equated with ‘the humanityof war’– two terms, oscillating between the social customs of civilized nations and themorality of warfare.59

III. L imiting war? Fundamental disputes about what (not) to condemn in the
Law of Nature and Nations
The relevance of these writings cannot be underestimated. Long-lasting traditions were
established particularly by the seventeenth and eighteenth law of nature and of nations
authors. Within these works, the usage of forbidden weapons during a just war wascontroversially discussed, opinions were expressed, and highly specialized tracts anddissertations were referenced.60 The earlier assessments of Grotius, Vattel, and Kant on
weapons were frequently quoted even during the nineteenth century, and it seems
ultimately clear that those cross-references were more than historical footnotes but rather
references to prevailing legal authorities in the field of international relations.
In 1866, American international lawyer Henry Wager Halleck made a strong and explicit
reference to Vattel’s book from 1758 at the end of a passage and quoted him as an
undisputed authority.61 In 1850, British international lawyer Richard Wildman discussed
the conflict among legal textbook writers with regards to the means of lawful destructions
in war and quoted Grotius, Cornelius van Bynckershoek, and Heineccius.62 Such references,along with the general style of argumentation, underline once more that it would be afundamental misunderstanding to believe that nineteenth-century international law was a
merely positivist enterprise.63 Instead, the law of nature was alive and influencing the lawof nations in manifold ways.64
1. The polyvalent justifications of outlawing perfidies (Grotius, Vattel, Kant)
To gain a better understanding of the legal authorities that were quoted during thenineteenth century, a short study of the work of Grotius, Vattel, and Kant seems valuable.65
The most prominent classical doctrinal example for the polyvalent justifications ofoutlawing perfidies is Hugo Grotius’ textbook, De Jure belli ac Pacis libri tres, which was
first published in 1625. Famously, Grotius discussed the ius in bello according to the law ofnature as well as to the law of nations (two different normative yardsticks) against the
58 Saalfeld, Handbuch des positiven Völkerrechts, p. 197f.
59 Heineccius, A methodical system of universal law: Or, the laws of nature and nations, II, C. IX, § 199, p.

194.

60 See the bibliography at Höpfner, Naturrecht des einzelnen Menschen, der Gesellschaften und der Völker, p.
122f.
61 Halleck, Elements of international law and laws of war, p. 179. On Lieber’s code, poison and Vattel, see:Witt, Lincoln’s Code, pp. 18, 183.
62 Wildman, Institutes of international law, II, p. 23.
63 Koskenniemi, ‘Into positivism’, pp. 189-207.
64 Vec, ‘Sources in the 19th century European tradition’, pp. 121-45.
65 Price, The chemical weapons taboo, p. 23ff.

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International Lawyers’ Failingbackdrop of the just-war doctrine. 66 In 1988, Swiss international lawyers Daniel Frei
emphasized that arms control serves four objectives:
reducing the likelihood of war […]; reducing suffering and damage in the event of war;
reducing the expenditure of armaments and saving resources; and contributing toconflict management by providing a framework for negotiation between opposing sides,by reducing suspicion and by generally contributing to an atmosphere conducive torelaxation of tensions.67
According to this analytical lens, it seems that the limitations proposed by Grotius
focused on reducing suffering and damage in the event of a just war. Additionally, mutual
trust in international relations played a crucial role. Grotius explicitly imposed restrictions
on the methods of warfare:… the Law of Nations, if not of all, yet of the better part of them, allows not the taking
the Life of any one, no not of an Enemy, by Poison; which Custom was introduced for ageneral Benefit, lest Dangers, which are very common in War, should be multiplied
beyond Measure. And it is probable, that it was first made by Kings, whose Life being
chiefly defended by Arms, is more in danger of Poison, than that of other Men, unless it
were secured by the Severity of Law, and fear of Disgrace and Infamy.68
Such restrictions were not imposed by the law of nature according to Grotius; they could
only be imposed by the law of nations: ‘For if we respect the Law of Nature, if a Man has
deserved Death, it signifies not much, whether we do it by the Sword or Poison.’69
Similarly, this line of argument against treacherous and cruel weapons can be found inmany other early modern law books70 and also factors prominently in the work of Swiss
jurist Emer de Vattel first published in 1758, which can be seen as Grotius’ successor interms of transnational reception in the diplomatic and academic world.71 Vattel also clearly
spoke out against warfare with poison. After justifying the use of force, Vattel asked
rhetorically:
Nations may do themselves justice sword in hand, when otherwise refused to them:shall it be indifferent to human society that they employ odious means, capable of
spreading desolation over the whole face of the earth, and against which, the most justand equitable of sovereigns, even so supported by the majority of other princes, cannot
guard himself?72
Here, an interesting argument against the use of poison is made explicit: it is – as Richard
Price put it repeatedly – ‘a potential equalizer in a battle’ 73 and brings not only disorder to
66 Haggenmacher, Grotius et la doctrine de la guerre juste.
67 Frei, ‘International humanitarian law and arms control’, pp.493-494.
68 Grotius, Of the rights of war and peace, 1715, L. III, C. IV, XV (p. 76), XV. 1.
69 ibid.
70 Beust, Observationes Militares, I, C. II, Observatio XXI, § 1, 2. (p. 26); Hasse, Die Wahre Staats=Klugheit,

p. 455f.
71 Fiocchi Malaspina, L’eterno ritorno del Droit des gens di Emer de Vattel.
72 Vattel, Law of nations, p. 358.
73 Price, ‘A genealogy of the chemical weapons taboo’, International Organization 49 (1995), p. 82; Price, The
chemical weapons taboo, p. 25.

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a contest of physical force but also makes monarchs and princes vulnerable as they are
subject to unreasonable warfare. In other words, poison ‘also threatened to undermine theclass structure of war, for a relative commoner could possess significant destructive
capacity without the elaborate and expensive knightly accoutrements of horse, armor, andthe like.’74 Vattel’s conclusion was to outlaw two methods in particular:
Assassination and poisoning are therefore contrary to the laws of war, and equallycondemned by the law of nature, and the consent of all civilized nations. The sovereign
who has recourse to such execrable means, should be regarded as the enemy of thehuman race; and the common safety of mankind calls on all nations to unite against
him, and join their forces to punish him.75
Again, the use of poison was the classic example and most discussed instrument when it
came to concrete restrictions:
The use of poisoned weapons may be excused or defended with a little moreplausibility. At least there is no treachery in the case, no clandestine machination. But
the practice is nevertheless prohibited by the law of nature, which does not allow us tomultiply the evils of war beyond all bounds. You must of course strike your enemy inorder to get the better of his efforts: but if he is once disabled, is it necessary that heshould inevitably die of his wounds? Besides, if you poison your weapons, the enemy
will follow your example; and thus, without gaining any advantage on your side for thedecision of the contest, you have only added to the cruelty and calamities of war.76
As previously laid out, Vattel used the same moral yardstick for judging weapons andimposing legal restrictions as that of Grotius; even the wording was partly identical.
The lasting legacy of these statements was not only the actual ban of the use of poison as
an instrument of warfare. Probably even more important than this measure was therationale and the criteria for this ban itself [see below III.4]. Grotius and Vattel supplied
tools and instruments by which methods of warfare ought to be judged. Jurisprudence andmoral philosophy went hand in hand to stigmatize certain types of weapons. The ongoingand explicit references to Grotius and Vattel illustrate that the discourse on the limitation of
warfare in the nineteenth century was also dominated by categories and concepts regarding
the moralization of weapons that were hardly new.
This theoretical contribution from the masterminds of the law of nature and of nations
school was supplemented, discussed, and modified by many other writers across Europe
who shall not be mentioned individually at this point for reasons of brevity. Yet, it would
be an inexcusable shortcoming not to finally mention the international legal philosophy
Immanuel Kant eminently formulated in his tract ‘Zum ewigen Frieden’ (Perpetual Peace,1795). In his preliminary article No. 6, Kant repeated and underlined the assessments
shared by the majority of his predecessors from the seventeenth and eighteenth century intheir writings on the law of war. More clearly than the authors before him, Kant justified
these restraints with an explicit purpose which was, in his opinion, trust in international
relations:
74 Price, The chemical weapons taboo, p. 25.
75 Vattel, Law of nations, pp. 360-1.
76 ibid, p. 361.

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Es soll sich kein Staat im Kriege mit
einem andern solche Feindseligkeiten
erlauben, welche das wechselseitige
Zutrauen im künftigen Frieden
unmöglich machen müssen: als da sind,A n s t e l l u n g d e r M e u c h e l m ö rd e r(percussores), Giftmischer (venefici),
Brechung der Capitulation, Anstiftungdes Verraths (perduellio), in dem
bekriegten Staat etc.

No state at war with another shallcountenance such modes of hostility as
would make mutual confidence
impossible in a subsequent state ofpeace: such are the employment ofassassins (percussores) or of poisoners(venefici), breaches of capitulation, theinstigating and making use of treachery(perduellio) in the hostile state.

Trust had the highest value because it was needed as a base for future peace agreements.
The aforementioned weapons destroyed trust between warring parties and were therefore
seen as dishonourable means:
Das sind ehrlose Stratagemen. Denni r g e n d e i n Ve r t r a u e n a u f d i e
Denkungsart des Feindes muß mitten
im Kriege noch übrig bleiben, weilsonst auch kein Friede abgeschlossen
werden könnte, und die Feindseligkeit
in einen Ausrottungskrieg (bellum
internecinum) ausschlagen würde.

These are dishonourable stratagems.
For some kind of confidence in thedisposition of the enemy must exist
even in the midst of war, as otherwise
peace could not be concluded, and thehostilities would pass into a war of
extermination (bellum internecinum).

These weapons, methods, and strategies, such as treacherous murders, poisoning etc.
were morally unacceptable. Belligerents had to treat the enemy in a manner – even in timesof war – that allowed them to return to peaceful terms and uphold international relations.
2. Contra: The freedom to choose one’s arms (Bynkershoek and Wolff)
On the issue of illegal warfare, the eighteenth-century international legal doctrine wascomplex and not just a story of straight progress. Even the outlawing of poison wascontested by a small but vocal minority of scholars – and poison was the least controversialof all the pariah weapons. In contrast with what one may expect, premodern doctrine was
not unanimous in banning the use of poison from warfare. Notoriously, German natural
lawyer Christian Wolff argued for the use of poison to force an enemy to restore
lawfulness.81§ 877. – Whether by nature it is allowable to destroy the enemy by poison.
By nature it is allowable to destroy the enemy by poison. For as long as he is an enemy,
77 Kant, Zum ewigen Frieden, p. 12 – highlighting in original.
78 Kant, Perpetual peace, translated from German by M. Campbell Smith, p. 144.
79 Kant, Zum ewigen Frieden, p. 12f – highlighting in original.
80 Kant, Perpetual peace, translated from German by M. Campbell Smith, p. 144.
81 Wolff, Jus gentium methodo scientifica pertractatum, p. 709; Wolff, Grundsätze des Natur= undVölkerrechts, p. 871.

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he resists the restoration of our right, consequently so much force is allowable against
his person as is sufficient to repel his force from us or our property. Therefore, if you
are able to remove him from our midst, that is not illegal. But since it is just the same
whether you kill him with a sword or with poison, as is self-evident, since forsooth ineither case he is removed from our midst that he may no longer resist and injure us, by
nature it is allowable to destroy an enemy by poison.
There is no reason why you should object that an enemy is killed secretly by poison, sothat he cannot protect himself from that so easily as from open violence; for he is notalways killed by open violence who is killed by a sword or the use of other arms. For
let us suppose that you secretly enter a place where the leader of the hostile army isasleep, and kill him with a sword. No one surely will deny that this is allowable by thelaw of war and is just the same as if he should be pierced by a bullet when unexpectedly
seen from a distance. Therefore, from the fact that by poison a secret attempt is madeagainst the life of an enemy, the right to remove him from our midst, if a favourable
opportunity occurs, is not changed.82
Dutch international lawyer Cornelius van Bynkershoek83 took the same position andjustified it with the nature of war:
War is a contest by force. I have not said by lawful force, for in my opinion, every force
is lawful in war. Thus it is lawful to destroy an enemy, though he be unarmed anddefenseless; it is lawful to make use against him of poison, of missile weapons, offirearms, though he may not be provided with any such means of attack or defense; inshort every thing is lawful against an enemy.84
His treatise on the law of war, originally published in 1737, was translated into English
and even reprinted in Philadelphia in 1810.
Interestingly, the set of criteria that these two and other authors85 apply was not so
fundamentally different from that of the seventeenth- and eighteenth-century writers who
argued against the usage of certain weapons, such as poison. The main argument was
deduced from war as a legal concept with distinct purposes. 86 But just how far canbelligerents go? Which means can be used to overthrow the enemy, to break his will, and toforce him to restore justice? Which means go too far? That was the pivotal question in thedispute. Necessity, an early precursor of today’s concept of ‘proportionality’87 and mercy,
provided a map for normative orientation. Still, Wolff reaffirmed belligerents’ liberty
within that dogmatic frame to choose any weapon.88

82 Wolff, Jus gentium methodo scientifica pertractatum: Vol. II: The translation, p. 450.
83 Akashi, Cornelius van Bynkershoek.
84 Bynkershoek, Treatise on the law of war, p. 2.
85 Buddeus, Sitten=Lehre, das Natur= und Völker=Recht, wie auch die Staats=Klugheit, p. 494f.
86 Mohl, ‘Ueber völkerrechtswidrige Kriegsmittel’, p. 767.
87 It should be noted at this point that the aforementioned early concept of ‘proportionality’ differedsignificantly from ‘proportionality’ as it is known today in international humanitarian law. However, for lack of abetter word, ‘proportionality’ will be used in this paper, as nineteenth-century lawyers – overall – followed
similar parameters as scholars do today.
88 Wolff, Jus gentium methodo scientifica pertractatum, p. 636.

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3. Continuity of the moral argumentation in the nineteenth century’s ‘positivist’ legal
doctrine (Georg Friedrich von Martens, Wheaton)
It is often argued that the late eighteenth century revolutionized international legal doctrine
in methodological terms, which in return led to the field’s shift to positivism. Regardless of
this claim’s overall accuracy, there are at least some indications of a palpable shift towards
positivism in the titles of major legal textbooks of the era. ‘Treaties and custom’ became
front and center legal sources of contemporary law of nations; first edition of Georg
Friedrich von Martens’ textbook from 1789 is a prominent example of this trend.89 Alongwith this change came an orientation towards Europe as the main geographical andhistorical frame of reference for those treaties. A number of book titles referred to a‘European law of nations’, 90 and they continued the debate on the law of war and theweapons to be used in that war that was reminiscent of earlier law of nature and of nations
textbooks. The actual texts are not quoted in order to avoid seeming repetitive, but similar
patterns of argumentation were also on display in legal writings around 1850 and later
years. Ideas on how to confine warfare through moral principles continued to dominate
international legal debates. A similar picture can be drawn for related fields, like militaryinterventions.91
Martens balanced the principally unlimited liberty to choose the most effective means tofight an enemy with a set of other principles, in an effort to mitigate the ‘horrors’ of war:
The law of nations permits the use of all means, necessary to obtain the satisfaction
sought by a lawful war. Circumstances alone, then, must determine on the means proper
to be employed; and, therefore, war gives a nation an unlimited right of exercising
violence, against its enemy. But, the civilized powers of Europe, animated by a desireof diminishing the horrors of war, now acknowledge certain violences which are as
destructive to both parties as contrary to sound policy, as unlawful, though not entirely
forbidden by the rigour of the law of nations. Hence those customs which are at present
called the laws of war.92
In this passage, in contrast to Wolff and Bynkershoek, Martens insisted on theunlawfulness of excessive violence. Although this wording sounds very familiar to readersacquainted with earlier eighteenth-century treatises on law of nature and of nations,
Martens’ quote was nevertheless also typical in its slight shift in terms of justification,
representing a new doctrinal approach at the end of the century. It represented a new
approach which asserted that Europe as a political sphere was also home to certain types ofmoral and social customs that limited the legitimate exercise of warfare and will hopefully
continue to limit it in the future. However, the overall patterns of argumentation appeared
static, and no major changes could be identified in this regard by the author. Poison was
still the classical and often the only example of a weapon considered to be forbidden by thelaw of nations. In a footnote, William B. Lawrence, who annotated Elements ofInternational Law by American international lawyer Henry Wheaton, pointedly summed up
Wheaton’s arguments: ‘Nations seem to concur in denouncing the use of poisoned
89 Martens, G. F. von, Précis du droit des gens moderne de l’Europe.
90 See e.g. Schmalz, Das europäische Völker=Recht; Schmelzing, Systematischer Grundriß des praktischen

Europäischen Völker=Rechtes; Pradier-Fodéré, Traité de Droit International Public Européen & Américain.
91 Vec, ‘Intervention/ Nichtintervention’, pp. 135-60.
92 Martens, Summary of the law of nations, VIII, p. 279.

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weapons, the poisoning of springs or food, and the introduction of infectious or contagious
diseases. As to the nature of weapons not poisoned, there is, and perhaps can be, no rule.’93
This stance presumably had to do with the overall continuity of the weapons discussed.
Although some progress in weapon technology was made around 1800,94 it was arguably
not fundamental or challenging enough for international lawyers to discuss its impact.
Therefore, it seems plausible for them to discuss the issue between the French Revolution
and the Vormärz (‘pre-march’) without any reference to challenges brought by new
inventions. This aspect was absent for the most part in those decades and in early and mid
nineteenth-century debates and publications on contemporary manners of war.95
4. A matter of conscience: The language of outlawing
In summary, international law regulating weapons was mainly based on legal,
philosophical, and political scholarship from the seventeenth to the mid nineteenth century.
A number of authors, often trained as jurists, argued whether just war should haverestrictions in terms of the interdiction of certain weapons. It seems that although there wasno unanimity, most writers were in favour of outlawing a number of weapons andstrategies. The debate was very much conducted as a discussion about principles, notnecessarily about rules. In this respect, the discussion was quite similar to contemporary
debates on just war. Jurists tried to identify adequate criteria to judge political or military
behaviour. They developed an understanding of war as a legal procedure that was foughtfor certain aims. These aims could serve as yardsticks to measure the legality of a certain
type of warfare and its respective methods. Some examples of what not to do in times of
war may seem trivial at first. Cruelty out of mere waggery96 or ‘la vengeance et la haine’(the revenge and the hate)97, ‘wanton destruction’98 or ‘wantonly increasing pain’99 that had
nothing to do with the overall objective of the war100 should remain taboo according tojurists, even in times of war. It is fair to say that these clear-cut examples were aimed at a
broader audience beyond academic circles; they were supposed to guide combatants in the
midst of fighting and to ‘suppress their desire to engage in “irrational” violence’.101 Theseverdicts indicate the presence of moral consideration and determination and depict
expressive acts of speech.
Furthermore, such an understanding of war potentially helped to apply the principles ofutility, necessity, and – as mentioned above – an early concept of ‘proportionality’. Actions
motivated by such outlawed emotions violated these principles and could be labelled‘unnecessary’ for military purposes, which made them illegitimate and therefore finallyillegal. ‘The necessities of war’102 thus had a double function; they enabled the use of force
and limited the methods of warfare at the same time.103
These criteria also helped to identify the real target of warfare and subsequently promoted
excluding – and to a certain extent, protecting – non-combatants: men, women, and
93 Wheaton/Dana, Elements of international law, p. 428, note (I).
94 O’Connell, Of arms and men, p. 191f; Neff, War and the law of nations, p. 202.
95 Rotteck, ‘Ein Wort über die heutige Kriegsmanier’, pp. 240-79.
96 Moser, Grund=Säze des Europäischen Völcker=Rechts in Kriegs=Zeiten, p. 192.
97 Nys, Le droit international, p. 148.
98 Lorimer, The institutes of the law of nations, II, p. 79f.
99 Martens, Summary of the law of nations, VIII, p. 282.
100 Tittel, Erläuterungen der theoretischen und praktischen Philosophie, p. 476f.
101 Koskenniemi, Gentle civilizer of nations, p. 88.
102 Twiss, Law of nations considered as independent political communities, p. 99f.
103 Kolb, ‘Main epochs of modern international humanitarian law’, p. 29; Witt, Lincoln’s code, p. 4.

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International Lawyers’ Failingchildren who were not the target but may have ended up in the crossfire nonetheless. Irish
philosopher Francis Hutcheson, one of the founding fathers of the Scottish Enlightenment,
wrote in 1747 that ‘Violence is justifiable only against men in battle, or such as violently
obstruct our obtaining our rights.’ 104 Non-combatants are consequently perceived as agroup worthy of specific protection by the law of war. This development led to theemergence of what came to be called IHL in the last decades of the twentieth century.105 At
the same time, all these principles and rules were far from absolute and could potentially beoverturned in cases of ‘extreme military necessity’. 106 The latter was a very ‘elastic
notion’107 and was frequently (ab)used in dead-end situations when treaty obligations andthe constraints of Realpolitik collided. 108 The concept functioned analogously to the
Machiavellian idea of necessitas as an overruling principle that enabled politicians tojustify violations of their legal and moral obligations in exceptional situations. The
juridification of international relations and the mitigation of the atrocity of war could bothessentially be revoked with it – on very uncertain premises.109

IV. C
 hange and self-perception: Narratives of progress in the nineteenth
century
Particularly the second half of the nineteenth century not only displayed multiple
continuities but finally brought dramatic changes to the law of war. These changes wereperceived not only by today’s historians of international law but also by contemporaries asremarkable ‘progresses’ in the development of the law of war. 110 This late nineteenthcentury mindset was based on enthusiasm about multiple scientific advances, finallyenabling the second Industrial Revolution at this time. The idea of progress was routinely
evoked in this regard, and the term was prominently displayed on a number of nineteenthcentury book titles.111 Interestingly, the idea of progress itself was never disputed; during
the research for this article, not a single writer was found who even considered regress incontemporary developments of international law and particularly in the law of war. To
understand that self-perception, historical treaty practice and the contemporary philosophyof history of international law need to be considered.112 It appears that the rhetoric ofprogress was used to justify international lawyers’ professional agenda and the young
discipline as such. 113 In a time when international law’s approach – which sometimes
104 Hutcheson, Short introduction to moral philosophy, p. 334.
105 Goltermann, Opfer.
106 Saalfeld, Handbuch des positiven Völkerrechts, p. 197f.; Klüber, Droit des gens moderne de L’europe, p.

384; Arntz, Programme Du Cours Droit des Gens, p. 151; Bulmerincq, Völkerrecht oder internationales Recht, p.
362; Westlake, Chapters on the principles of international law, p. 238; Endres, Völkerrechtlichen Grundsätze derKriegsführung zu Lande und zur See, p. 12.
107 Liivoja, ‘Technological change and evolution of the law of war’, p. 1165.
108 Koskenniemi, Gentle civilizer of nations, p. 38.
109 Vec, ‘All's fair in love and war’.
110 Duane, Law of nations, p. 101; Bernard, ‘Growth of laws and the usages of war’ p. 89; Taylor, Treatise oninternational public law, p. 470; Olivart, Tratado de Derecho internacional público, III, p. 87; Bonfils, Manuelde droit international public, p. 656; Martens, Völkerrecht, p. 489; Bordwell, Law of war between belligerents,
pp. 2-6.
111 Isambert, Tableau des progrès du droit public et du droit des gens; Wheaton, Histoire des progrès du droit
des gens; Calvo, Le droit international théorique et pratique; Pradier-Fodéré, Traité de Droit International Public
Européen & Américain; Pierantoni, Die Fortschritte des Völkerrechts im XIX. Jahrhundert.
112 Hunter, ‘About dialectical historiography of international law’, pp. 1-32
113 Koskenniemi, Gentle civilizer of nations, chs. 1 & 2.

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seemed like less of an approach and more of a blind eye – was mostly indifferent to
detrimental effects of empire and colonialism, a shared moral basis was needed to soothe
one’s conscience. This ambivalent dynamic can also be observed in the realm of outlawing
weapons.
1. A late-nineteenth century increase in international treaty law; Martens’ Clause
The most remarkable development of the last decades of the nineteenth century in the lawof war regarding weapons is the increase of treaty law, which was fostered by documents
which – though typically not legally binding – served as declarations and subsequentguidelines for states’ practice. Nonetheless, there were exceptions when it came to theirlegal character. Among the treaties mentioned below, the St Petersburg Declaration of 1868and the Hague Conventions and Declarations of 1899 and 1907 did gain the force of law.
Three steps central to this overall development shall be mentioned in this context:114a) The St Petersburg Declaration of 1868
The preamble of the Declaration of St Petersburg from 29 November /11 December 1868
reads as follows:
Considering that the progress of civilisation should have the effect of alleviating as
much as possible the calamities of war; That the only legitimate object which statesshould endeavour to accomplish during war is to weaken the military forces of theenemy; That for this purpose it is sufficient to disable the greatest possible number ofmen; That this object would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable; That theemployment of such arms would therefore be contrary to the laws of humanity; The
contracting parties engage mutually to renounce in case of war among themselves theemployment by their military or naval troops of any projectile of a weight less than 400
grammes [about 13 ½ ounces] which is either explosive or charged with fulminating or
inflammable substances.115
Although a number of specific weapons singled out by the authors were explicitly
outlawed, other weapons were still regarded legal. However any weapons could becondemned if their usage was deemed violating general principles (‘laws of humanity’) or
the overall objective of the declaration. Explosive projectiles under a certain weight
belonged to the few categories of weapons to be declared as mala in se at that time. These
weapons were considered to not serve the main purpose of war and therefore fell outside
the scope of military necessity.116b) The Brussels Declaration on Land Warfare of 1874
114 In the following (IV.1 a-c), I refer to a section of a previously published article: Vec, ‘Challenging the lawsof war’, pp. 108-10.
115 Online: Declaration renouncing the use, in time of war, of explosive projectiles inder 400 grammes weight.
29 November/11 December 1868. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocume
nt&documentId=568842C2B90F4A29C12563CD0051547C. Accessed: 14 December 2016.
116 Schäfer, ‘The 150th anniversary of the St Petersburg Declaration: Introductory reflections on a janus-faced
document’, p. 507.

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The next step was the Project of an International Declaration concerning the Laws andCustoms of War of 1874, which encompassed the following provision in Art. 13:‘According to this principle [means of injuring the enemy are not unlimited, MV] areespecially ‘forbidden’: (a) Employment of poison or poisoned weapons.’117
The Declaration of 1874 never went into force, but in 1880, it led to corresponding
resolutions by the Institut de Droit International, the ‘Manuel des lois de la guerre surterre’,118 unofficially called the ‘Oxford Manual’. This manual later served as a model forthe provisions at the Hague Conferences of 1899 and 1907.119c) The Declaration on the Use of Projectiles with Asphyxiating or Deleterious Gases
and the Hague Convention on Land Warfare of 1899
Finally, on 29 July 1899, Hague Declaration (IV, 2) concerning asphyxiating gases was
adopted. The preamble explained that the declaration was ‘inspired by the sentiments
which found expression in the Declaration of St. Petersburg of 29 November (11December) 1868.’ The document itself briefly stated that ‘The contracting powers agreed toabstain from the use of projectiles the sole object of which is the diffusion of asphyxiating
or deleterious gases.’120 One could argue that these phrases ultimately originate – at least inpart – from Article 13 of the Brussels Declaration of 1874.
Additionally, the second convention ‘respecting the laws and customs of war on land’
was concluded in 1899.121 Section II had the title ‘On Hostilities’; Chapter 1 is ‘On Meansof Injuring the Enemy, Sieges, and Bombardments’ and stated in Article 22: ‘The right ofbelligerents to adopt means of injuring the enemy is not unlimited’. A list of specificprohibitions followed in Article 23:
Article 23.
Besides the prohibitions provided by special conventions, it is especially prohibited: –(a) To employ poison or poisoned arms;(b) To kill or wound treacherously individuals belonging to the hostile nation orarmy;(e) To employ arms, projectiles, or material of a nature to cause superfluous injury;122
It was also adopted (with minor changes to the 1899 version) in 1907.123
117 Online: Project of an international declaration concerning the laws and customs of war, Brussels, 27 August
1874, Means of injuring the enemy. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocu
ment&documentId=31364F80ED69E269C12563CD00515549. Accessed 14 December 2016.
118 Schindler and Toman, eds., ‘The laws of war on land’, p. 29; Kassapis, C-Waffen, p. 10; Kunz, Gaskrieg
und Völkerrecht, p. 13.
119 Mérignhac, La conférence internationale de la paix, p. 197.
120 Carnegie Endowment for International Peace: Pamphlet No. 8. The Hague declaration (IV, 2) of 1899
concerning asphyxiating gases, Carnegie Endowment, 1915, V. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/
Article.xsp?action=openDocument&documentId=2531E92D282B5436C12563CD00516149. Accessed 14
December 2016.
121 Kunz, Gaskrieg und Völkerrecht, p. 13.
122 Online: Convention with respect to the laws and customs of war on land (HAGUE, II). 29 July 1899. http://
avalon.law.yale.edu/19th_century/hague02.asp. Accessed 14 December 2016.
123 Synopsis in: Carnegie Endowment for International Peace, Division of International Law: Pamphlet No. 5.
The Hague Conventions of 1899 (II) and 1907 (IV) respecting the laws and customs of war on lands, Carnegie
Endowment, 1915, p. 17.

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The preamble of the 1899 Hague Convention (II) on the laws and customs of war on land
included a short clause in the ninth paragraph originally designed to ‘overcome adiplomatic impasse in the drafting of rules of belligerent occupation and permissible
resistance by the occupied thereto’124: ‘Until a more complete code of the laws of war isissued, the High Contracting Parties think it right to declare that in cases not included in
the Regulations adopted by them, populations and belligerents remain under the protectionand empire of the principles of international law, as they result from the usages establishedbetween civilized nations, from the laws of humanity and the requirements of the public
conscience’.
The clause was slightly modified in 1907125 and rose to prominence under the name of theRussian delegate at the Hague Conferences, eminent international lawyer Fedor
Fedorovitsch [=Frédéric/ Friedrich] Martens. Its wording has been taken up in a number ofmore recent treaties of IHL and remains a source for controversial legal debates of highpractical relevance until today.126 These debates are fuelled by the concepts and terms of
the historical language, which was arguably ambiguous and ambitious at the same time. In
the clause, the international legal language used evidently addresses ‘the existence andimport of the patently non-positivistic sources of IHL’, according to many international
lawyers.127
The clause is generally used as a reference for two assumptions: IHL is incomplete, andwar is subordinate to law.128 Both assumptions may be understood to be based on the ideathat there is nothing above law, which inevitably regulates the conduct of war, and law may
expand to fill present gaps in the future. The common interpretation of these two
assumptions encompasses a certain hope about multi-normativity in this field. Not only
should international lawyers see a legal link between positive international law andmorality at this point, but the norms of morality should also serve as supplements for law
in situations where the law itself remains incomplete. This idea is somewhat in line withinternational lawyers’ writings from previous centuries. Historically, ideas about morality,
natural law, and chivalry stand behind the ethical approach of the clause.129 The invocationof ‘principles’ serves as a replacement for often lacking concrete legal rules.
This moralist intent tended to invoke ‘public conscience’, a fashionable idea and concept
in the years around 1900, and the combination of both morality and public conscience was
evaluated in an overwhelmingly positive light.130 The provisions of international law areadmittedly incomplete since potential future developments in the form of technologicalprogress will change the framework and will alter the reality of what needs to be regulated
by international law. However, the clause’s importance should nonetheless not be
underestimated; its preamble will remain relevant as a method to fill present and future
gaps of international law, diffuse as it may be. Positive international law will have to keep
pace with technological progress to slowly build a progressive normative order without
falling behind.
Interestingly, this approach aims to include international morality and public conscience
124 Bernstorff, ‘Martens Clause’, para. 14.
125 Meron, ‘Martens Clause’, p. 79.
126 Kahn, ‘Protection and empire’, p. 26.
127 Giladi, ‘Enactment of irony’, p. 849.
128 ibid, p. 862.
129 Meron, ‘Martens Clause’, p. 79.
130 Lingen, ‘Fulfilling the Martens Clause’, p. 193.

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International Lawyers’ Failinginto its interpretation of legal provisions on unlawful weapons. 131 It is based ‘on thecontinuing intuition that restraint in warfare is an intrinsic part of European conscience.’132
The historical reality of militarism and the imperialism that followed, along withconflicting normative orders, is less prominently addressed 133 – if at all. International
lawyers’ optimistic self-assessment in the late nineteenth century found its rhetoricalsoundboard here; their belief in strong ethical foundations of the modern European law ofnations, which is on the edge of becoming a true global order, was based on Christianity,
progress, and civilization. The preamble codified uncodified principles and was therefore asomewhat paradoxical norm. Due to its openness for future developments andinterpretations and unabashed promise to humanize the law of war, Martens’ Clause hasremained a dynamic normative factor despite changing interpretations and needs ofinternational law and international politics.
2. Continuing condemnation: Differentiation of criteria and a partial change in justifying
norms
All these provisions of the Hague Conventions and Declarations were in line with theopinions of the aforementioned majority of writers on international legal doctrine from theseventeenth to nineteenth century. Put differently, in the end, the Hague Conventions andDeclarations and their predecessors merely codified international customary law without
creating new provisions in this field.134 The standards of humanitarian warfare that had
crystallized from intense international legal debates were finally put on paper in Article 22,
which laid out general principles, and Article 23, which detailed special provisions andexamples.
Many lines of argumentation were in full continuity with the aforementioned legal
authorities and their moral convictions. The interdiction of poison is probably the mostevident indicator of those continuities. Numerous late eighteenth-century and nineteenthcentury authors and their textbooks on the law of nations condemned poisoned weapons,
including philosophers Francis Hutcheson135 and Adam Ferguson,136 theologian Thomas
Rutherforth,137 international lawyers like the Germans Klüber, Schmalz,138 Schmelzing,139
Saalfeld, 140 the Italian Fiore, 141 the English Richard Wildman, the Danish KolderupRosenvinge 142, the American Bowen 143 and Halleck 144, the French Villiaumé 145 andMariotti146, the Dutch Poortugael147, the Venezolan-Chilean Bello,148 and the Argentinean
131 Bernstorff, ‘Martens Clause’, para. 12.
132 Koskenniemi, Gentle civilizer of nations, p. 87.
133 Meron, ‘Martens Clause’, p. 85.
134 Nys, Le droit international, p. 141.
135 Hutcheson, Short introduction to moral philosophy, p. 335.
136 Ferguson, Principles of moral and political science, p. 307.
137 Rutherforth, Institutes of natural law, p. 528.
138 Schmalz, Das europäische Völker=Recht, p. 247.
139 Schmelzing, Systematischer Grundriß des praktischen Europäischen Völker=Rechtes, III, p. 157f.
140 Saalfeld, Handbuch des positiven Völkerrechts, p. 208.
141 Fiore, Nouveau Droit International Public, II, p. 279.
142 Kolderup=Rosenvinge, Grundrids af den positive Folkeret, p. 106f.
143 Bowen, International law, p. 113.
144 Halleck, Elements of international law and laws of war, p. 179.
145 Villiaumé, L’esprit de la guerre, p. 60
146 Mariotti, Du Droit des Gens en temps de guerre, p. 71.
147 Poortugael, Het oorlogsrecht of het recht en de gebruiken in den oorlog, p. 163.
148 Bello, Principios de Derecho de Jentes, p. 125f.

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Calvo,149 etc. This unanimous rejection was now (re-)framed in new declarations and theirprinciples. The American international lawyer George Davis stated in 1887, ‘The decision
as to whether a particular instrument may, or may not, be employed in war will depend
upon the wound or injury caused by its use. If the wound produced by it causes unnecessary
suffering, or needless injury, it is to be rejected, otherwise not. This rule applies to all
instruments of whatever character, whether weapons or projectiles, which may be used inwar. The application of this rule forbids the use of cutting or thrusting weapons which havebeen poisoned, or which are so constructed as to inflict a merely painful wound’.150
Additionally, it seems that as the catalogue of criteria for pariah weapons was constantly
being diversified, it became more precise and elaborate. The yardsticks of military utility
and its moral counterpart, humanity, were defined more precisely. Moral and legal duties
were defined, and the two normativities of law and morality closely interacted. Terms,
labels, and concepts such as ‘civilization chrétienne’ (Christian civilization),151 honour,clandestinely, ‘infamous’ (means of poison),152 ‘torture’,153 ‘violence inutile’,154 ‘cruautésinutiles’ 155 /Cruelties/Gräuelthaten, 156 meuchlerisch 157 /treacherous, entehrend/
discreditable; 158 honesty, ‘unmenschliche Grausamkeiten’ 159 /‘unmenschlich’, 160
unehrenhaft,161 odious/odieuse/odieux,162 ‘infructuosamente cruel y funesto’,163 actions‘barbare’ 164, ‘rigueurs inutiles’ 165 popped up and provided means to describe what toforbid. This vocabulary was moralizing, first and foremost. Yet, it also supplied yardsticks
on how to measure and judge war technologies from a legal standpoint, how to apply legal
judgment and how to outlaw excess. Unlawful weapons were being singled out rhetorically– in a negative sense – instead of disdaining them for their function and their trail ofdestruction. This strong language had a decisive impact on lawmaking due to a distinct
factor: public opinion.166 The rise of the public sphere at the end of the late nineteenth
century and the interests of the many political movements (among them the peace societies)
at the time and public opinion in general both affected international law.167 International
lawyers started using arguments from public debates to justify their projects and normative
claims. At the same time, public opinion had an impact on political projects and demandedreforms in current international law and future projects of codification.168 These requests
were more likely to be heard when they were formulated in clear language with amoralizing punch.
149 Calvo, Le droit international théorique et pratique, p. 134.
150 Davis, Elements of international law, p. 224.
151 Fiore, Nouveau Droit International Public, II, p. 279.
152 Ward, Enquiry into the foundation and history of the law of nations, II, p. 199.
153 Bowen, International law, p. 113.
154 Acollas, Le droit de la guerre, p. 53.
155 Arntz, Programme Du Cours Droit des Gens, p. 151.
156 Bulmerincq, ‘Nothwendigkeit eines allgemein verbindlichen Kriegsrechts’, pp. 21, 23, 26.
157 Lentner, Das Recht im Kriege, p. 81.
158 ibid, p. 82.
159 Lueder, ‘Landkriegsrecht im Besonderen’, p. 391.
160 Heffter, Das Europäische Völkerrecht der Gegenwart auf den bisherigen Grundlagen, p. 271.
161 Mohl, ‘Ueber völkerrechtswidrige Kriegsmittel’, p. 777.
162 Calvo, Le droit international théorique et pratique, p. 134; Schmalz, Le droit des gens européen, p. 247.
163 Bello, Principios de Derecho de Jentes, p. 125f.
164 Foignet, Manuel élémentaire de droit international public, p. 267.
165 Bex, Essai sur L’Évolution du Droit des Gens, p. 150.
166 Gillespie, History of the laws of war, III, p. 22.
167 Roberts, ‘Against war’, p. 331.
168 Wheaton/Dana, p. 17; Wheaton/Lawrence, p. 16; Gardner, A treatise on international law, pp. 177, 239;

Hull, The two Hague Conferences, p. 21ff.

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However, it also appears that the canon of topoi was not only growing; some topoi also
vanished. Perfidy is an interesting example in this regard. While it did not vanish per se,
the authors did try to address a different audience. Whereas some early modern authors
warn that military personnel, political leaders, and monarchs (‘the commander in chief or
any other enemy of distinction’) 169 could secretly be assassinated using clandestine,
treacherous weapons, this line of argumentation against poison seemed to have all but
vanished in the nineteenth century. Authors now primarily addressed combatants and noncombatants; the fear that poison could be an equalizer, undermining the class structure ofwar,170 was no longer mentioned as a rationale of its prohibition. The norm’s justification
had shifted, and as a result, former arguments were dropped silently (however, it might
have still contributed tacitly as an ideological undercurrent to the maintenance of thenorm). The argumentation instead focuses on regular combatants or innocent
noncombatants. Therefore, ‘the enemy of distinction’ and his particular endangerment
through poisonous weapons and treacherous killings went out of focus.
3. Against ‘barbarism’ and the ‘uncivilized’: Eurocentrism, colonialism, and exclusion
The process of issuing early, non legally binding declarations as well as concluding treaties
can be seen as a juridification of international relations in the field of the law of war. This
shift was observed and commented on by all international lawyers of the time, who saw it
as clear proof of a ‘period of humanitarian progress and voluntary codification’.171 Theyemphasized the progress that international law had made and analysed the scope, structures,and content of the juridifications that were taking place. A community of states emergedthat was guided by international legal consciousness. The notion of ‘civilization’ wasfrequently attached to states’ self-perception. Their lawyers became protagonists informulating doctrines and supporting diplomatic relations. It was the concept of‘civilization’ 172/Christian civilization 173 that encouraged a certain number of states toconclude those treaties and to issue these non legally binding declarations, and it was atouchstone for others. The states understood themselves as being European and civilizedstates, which justified discriminating and subordinating the outside world in manifold ways
and means. International law was one of them.
In the field of the law of war, this civilizing mission of international law174 was expressedin frequent references to and in the rejection of ‘barbarism.’ Stigmatizing certain types of
war methods and weapons was a proof of culture175 and civilization,176 and by adhering tothese new standards, states seemingly overcame earlier stages of historical warfare thatwere considered ‘barbarian.’177 Often, the spheres of action of these methods were not only
169 Martens, Summary of the law of nations, VIII, p. 281.
170 Price, The chemical weapons taboo, p. 43.
171 Maine, International law, p. 142.
172 Rutherforth, Institutes of natural law, p. 528 (against poison); Rodriguez Saráchaga, El derecho

internacional público, p. 380.
173 Fiore, Nouveau Droit International Public, II, p. 279.
174 Pauka, Kultur, Fortschritt und Reziprozität; Gong, Standard of ‘civilization’ in international society;
Lingen, Crimes against humanity, pp. 17, 40ff; Yanagihara, Significance of the history of the law of nations in
Europe and East Asia, pp. 310-1, 343ff.
175 Saalfeld, Handbuch des positiven Völkerrechts, p. 197f.; Bluntschli, ‘Kriegsvölkerrecht undKriegsgebrauch’, p. 256; Martens, Völkerrecht, II, p. 489; Bulmerincq, ‘Die Nothwendigkeit eines allgemeinverbindlichen Kriegsrechts’, II, p. 27.
176 Howland, International law and Japanese sovereignty, p. 24, 99-126.
177 Duane, Law of nations, p. 101; Mohl, ‘Ueber völkerrechtswidrige Kriegsmittel’, p. 777; Bluntschli, Das
moderne Völkerrecht der civilisirten Staten, p. 312; Bonfils, Manuel de droit international public, p. 657.

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located in the European past but also the global present. But authors of nineteenth-century
international law textbooks spotted inhuman warfare practices almost exclusively outsideof Europe. References to interdictions of such weapons existing outside of Europe in thepast or present were made (Islamic law of war178; Manusmriti, also called the MānavaDharmaśāstra or Laws of Manu179), but these footnotes were much rarer. Austrian lawyer
Ferdinand Lentner wrote in 1880 that the use of poison or poisonous weapons was still acustom of wild hordes.180 In other words, the barbarians were always the others (in 1908,
Percy Bordwell mentions ‘the Jews’181 in this regard), and one’s own moral supremacy was
carefully constructed in opposition to this ‘barbarian’ other that needed to be suppressed.
This characteristic could be found in many textbooks and international lawyers’
argumentation at that time.
It was of no coincidence that some international lawyers from the second half of thenineteenth century explicitly discussed not only poison or assassination but also anotherregulatory challenge to civilized warfare: the use of colonial troops.182 They perceived suchan ‘Employment of Savage Allies’183 as a violation of moral standards due to the wellknown ‘barbarism’ of these ‘semi’- or ‘uncivilized’ troops and claimed that such use wasillegal184 or demanded reforms to forbid it in the future.185 However, it should be noted thatthese voices mainly came from states without colonial empires and therefore had strong
political undertones.
In summary, colonialism, imperialism, and Eurocentrism all left their traces on the fieldof the nineteenth-century law of war.186 Overall, the celebrated progress in the doctrine of
the law of war was not shared with ‘barbarians’ outside of Europe’s geographical realm andits moral foundation, the ‘Christianity, education, an enlightened self-interest’.187 There is aconsensus among today’s international legal historians that international law contributed tothe colonial rule of European states.188 However, it is disputed to which degree internationallaw as such was an imperialist and colonialist enterprise from its beginning in the earlymodern period. This debate is ongoing and is enriched by the so-called Third World
Approaches to International Law, which highlighted doctrinal discriminations in theEuropean law of nations and also in the field of the law of war. Non-Europeans were
excluded in two ways. First, they were stigmatized for supposedly practicing barbarian
methods of warfare. In addition, the doctrine of the European law of nations did not
attribute statehood to many of these non-European political actors, so they were again
excluded from new interstate treaties in this field. The celebrated European law of war and
178 Heffter, Das Europäische Völkerrecht der Gegenwart, p. 272, N. 2; Lueder, ‘Das Landkriegsrecht im
Besonderen’, pp. 393, N. 9.
179 Taylor, Treatise on international public law, p. 480; Bluntschli, Das moderne Völkerrecht der civilisirten
Staten, p. 312; Lueder, ‘Landkriegsrecht im Besonderen’, pp. 393, N. 9.
180 Lentner, Recht im Kriege, p. 80.
181 Bordwell, Law of war between belligerents, p. 8.
182 Koller, Von Wilden aller Rassen niedergemetzelt; Lueder, ‘Das Landkriegsrecht im Besonderen‘, p. 395.
183 Wheaton/Dana, Elements of international law, p. 428, n. II; Bordwell, Law of war between belligerents, p.
232.
184 Acollas, Le droit de la guerre, p. 55; Bluntschli, Das moderne Völkerrecht der civilisirten Staten, p. 314;
Martens, Völkerrecht, p. 485f.
185 Heffter, Das Europäische Völkerrecht der Gegenwart auf den bisherigen Grundlagen, p. 272, n. 4 byGeffcken.
186 For late nineteenth-century examples in the field of arms transfer, see Enomoto, ‘Controlling arms transfers
to non-state actors’, pp. 5f, 17; see further: Anghie, Imperialism, sovereignty, and the making of internationallaw, p. 55f.
187 Gardner, Institutes of international law, p. 595.
188 Anghie, Imperialism, sovereignty, and the making of international law.

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International Lawyers’ Failingits progress was only supposed to benefit states belonging to the ‘family of nations.’ Henry
Wheaton once rhetorically asked in a famous passage, ‘Is there a uniform law of nations?
There certainly is not the same one for all the nations and states of the world. The publiclaw, with slight exceptions, has always been, and still is, limited to the civilized andChristian people of Europe or to those of European origin. This distinction between theEuropean law of nations and that of the other races of mankind has long been remarked by
the publicists’.189
Other political entities did not benefit from the constraint of warfare. Accordingly, thewarfare against ‘non-civilized’ peoples/‘savages’ was unlimited. It was marked bydiscriminatory standards (their forms of political organization were not recognized asstates),190 and racist beliefs in international law led to unbelievably cruel and mercilesspractices.191
4. New technologies challenging old standards
International lawyers of the second half of the nineteenth century, particularly around theyear 1900, faced manifold regulatory challenges that were mostly due to changing
technology. Industrialization and militarization introduced new weapons to interstate
warfare. Nineteenth-century international law textbooks mentioned Congreve rockets, 192(submarine contact) mines,193 chemical compounds,194 and torpedoes;195 the early twentiethcentury added flamethrowers, submarines, machine guns, aerial bombardment, and tanks.196
This progress added new chapters to the theory197 and history198 of the law of technology.
From a normative point of view, some passages in older international law textbooks were
now outdated. Late nineteenth- and early twentieth-century international lawyers criticized
their colleagues’ earlier writings as being irrelevant due to subsequent technologicaldevelopments. 199 One of their preferred targets for criticism was Klüber’s still widely
popular textbook in its 1861 edition, which contained a passage on the interdiction of:
the usage of chain bullets or rod bullets, shooting cannons with iron, glass, nails or
similar items. […] Against the manners of war are in addition: loading the musket withtwo bullets, or with two halved bullets, or with jagged bullets, or with bullets mixed
with glass or lime […]200
189 Wheaton/Lawrence, Elements of international law, p. 16f; Wheaton/Dana, p. 17f. Similar: Leseur,
Introduction à un cours de Droit International Public, pp. 97-102.
190 Kleinschmidt, Diskriminierung durch Vertrag und Krieg; Bernstorff, ‘Use of force in international law
before World War I’, pp. 243, 247.
191 Witt, ‘Dismal history of the laws of war’, p. 903; Balfour, ‘Secret wars in forgotten Africa’, p. 128.
192 Schmelzing, Systematischer Grundriß des praktischen Europäischen Völker=Rechtes, III, p. 160f.
193 Wheaton/Dana, Elements of international law, p. 428; Rodriguez Saráchaga, El derecho internacional
público, p. 383; Bordwell, Law of war between belligerents, pp. 278-80.
194 Wheaton/Dana, Elements of international law, p. 428.
195 Wheaton/Dana, Elements of international law, p. 428; Lentner, Das Recht im Kriege, p. 83f; Lorimer,
Institutes of the law of nations, II, p. 79f; Rodriguez Saráchaga, El derecho internacional público, p. 382; Olivart,
Tratado de Derecho internacional público, III, p. 103.
196 Hull, Breaking and making international law, pp. 211-316; Neff, War and the law of nations, p. 165.
197 Eisenberger, Innovation im Recht.
198 Vec, ‘Kurze Geschichte des Technikrechts’, pp. 3-92.
199 Lentner, Das Recht im Kriege, p. 82; Lueder, ‘Das Landkriegsrecht im Besonderen’, p. 391; Heffter, Das
Europäische Völkerrecht der Gegenwart, p. 271; Bonfils, Manuel de droit international public, p. 657f.
200 Klüber, Droit des gens moderne de L’europe, p. 315.

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Image 2: Battle of Grochow 1831, painting by Bogdana Willewalde ca. 1850; the painting
shows how Polish Congreve rockets exploded over the soldiers.
Source: Wikimedia Commons.

The technologies these authors described as illegal did not exist anymore on thebattlefields. These examples now belonged to the history of the law of war.
5. Peace through weapons: The promise of advanced technology
Furthermore, international lawyers were completely in line with their contemporaries,
particularly politicians and the military, and also considered the usage of these newweapons to be progress. Future inventions, as stated by earlier authors as well, were notregulated or forbidden by the law of war. Interestingly, international lawyers also projected
hope on the technological progress of the day. The military made a similar assessment; newweapons would be more effective and thus would shorten military conflicts, which would
then mitigate the horrors of war. More destructive weapons would lead to fewer futurewars.201 Belligerents would be more inclined to agree on a ceasefire and to conclude peace
treaties. Abomination against new weapons would be outbalanced by the millions of lives
that would be saved in the long run. 202 In addition, war itself was sometimes seen byinternational lawyers as an expression of ‘belligerent spirit’,203 a Darwinist struggle about
the survival of the fittest. It was a new kind of morality of armed conflicts that was on theverge of late nineteenth century international legal doctrine.
Thus, the law of war perceive advanced technology as a promise and not only as a threat
to humanity. Additionally, many writers refrained from suggesting restrictions on the newweapons as they were patriots: supportive of their fatherlands and their military powers.
They shared the hopes of the military that developments of new weapons would make give
their country advantage in competition for European dominance and global hegemony (e.g.
by disciplining the ‘uncivilized’ with superior technological innovations).204 It does notcome as a surprise that the great powers in particular opposed limitations here.205 As a
201 Gillespie, A history of the laws of war, p. 23; Dülffer, Regeln gegen den Krieg?, p. 149f.
202 Schmalz, Das europäische Völker=Recht; in acht Büchern, p. 247.
203 Koskenniemi, Gentle civilizer of nations, p. 38.
204 Price, The chemical weapons taboo, p. 42.
205 Bordwell, Law of war between belligerents, p. 131.

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International Lawyers’ Failingconsequence, new means of destruction, technological progress, and military improvements
were welcomed in principle and scarcely regulated. International lawyers often acted inline with politicians’ and the military’s interests. Restrictions enforced through theinternational law of war were therefore seen critically in general. Innovations should be
principally enabled, not curbed by law.
6. Isolated restrictions as comprehensive legitimations of warfare?
The historical role of restrictions on certain weapons before the First World War has been
discussed critically and controversially in legal historiography. A famous thesis proposedthat the restrictions were, in fact, legitimizing warfare.206 Some restrictions worked as fig
leaves for ferocious military acts in the era of imperialism, militarism, and colonialism. Did
the language of ‘humanity’ and the narrative of the ‘humanization’ of warfare along withthe proscription of pariah weapons serve as a justification narrative for a warfare and statepractice that was anything but respectful of human life?
From the perspective of sources, it is difficult to approve of this thesis. It is true thatefforts to prevent or humanize warfare had little outcome207 and that state practice wasdominated by military imperatives.208 In 1884, Scottish international lawyer James Lorimer
criticized the lack of a system and rationale behind proscriptions by authors of 19th century
textbooks as well as of international conventions which restricted means and methods of
warfare:Apart from the consideration of neutral interests, and the prevention of needless cruelty,
no principle appears to have guided the attempts which have been made to distinguishbetween lawful and unlawful weapons; and it is with great truth that Bluntschli has
said, ‘On autorise, on defend, sans savoir précisément pourquoi.’ The enumerations
contained in the books, and the proposals of the International Military Commission at
St. Petersburg in 1868, to prohibit the use of all explosive projectiles weighing less than
400 grams, are really of no value. They certainly would not be respected in anything
approaching an embittered war. But the science of destruction is probably only in its
infancy; and if war is to continue, the subject of regulating the use of the terrible
weapons which it may place in the hands of combatants, is one which may force itself
on their attention. All that can be done in the meantime is to confine warfare, as far as
possible, to States in their public capacity, and to induce them to abandon, by common
agreement, the ruinous race of preparation in which they are at present engaged — arace rendered specially costly by the rapidity with which discovery follows discovery,
and invention supersedes invention.209
This is a remarkably critical assessment of Lorimer’s colleagues’ tedious efforts to outlaw
certain weapons: ‘really of no value’.
The percentage of outlawed weapons in relation to all available warfare technology wererelatively low. Few weapons were outlawed by international treaties and customs as well as
through international legal doctrine before 1914. However, these restrictions were at least
not intentionally imposed to justify warfare as a whole. At the same time, international
206 af Jochnik and Normand, Legitimation of violence, pp. 49-95.
207 Alexander, ‘Short history of international humanitarian law’, p. 115.
208 ibid, p. 130.
209 Lorimer, Institutes of the law of nations, II, pp. 79-80.

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lawyers participated not only in the promotion of peaceful international relations and arms
limitations but also in legitimizing warfare: international law and its scholars were actively
justifying violence. Several authors have recently laid out how international law in fact
contributed to the escalation of conflicts in the years leading up to 1914, since it normalized
and legitimized the use of force.210 Regulations of warfare were imposed to professionalize
war and sometimes also to protect combatants from civilians’ illegal methods.211 Therefore,
it is possible to claim that they were mainly imposed in favor of the often quoted aim of a
“mitigation of atrocity of war”. But it is also not fully convincing to claim that the opposite
is true and that these restrictions were only a fig leaf. On the contrary: Restricting some
weapons may have also brought palpable advantages to those who were supposed to benefit
from the restrictions.
A practical benefit would only occur if provisions on pariah weapons in non legallybinding declarations, treaties, and international legal doctrine were spread on the battlefield
and amongst political, particularly military decision-makers. Yet, the issue of norm
implementation has often been neglected in international legal history, and it is of course
hard to evaluate by using textbook sources alone. Some remarks in studies from militaryhistory suggest that norm implementation was relatively poor.212

V. The memory and presence of disappointment: The doomsday of the FirstWorld WarIn the last years before the beginning of the First World War, the mood among international
lawyers was optimistic overall. Their discipline was flourishing; international treaty
making continued, and challenges stemming from economy, technology, and international
relations promised to turn into interesting fields of future research for them. International
lawyers still held the optimistic view of the progress of the international law. However,when it came to the law of war, some international lawyers knew that all these proscriptions
would not persist against the doctrine of ‘military necessity’.213 Eminent international
lawyer Lassa Francis Lawrence Oppenheim wrote in 1906:
The fact is that many legal rules of warfare are so framed that they do not apply to acase of necessity; but there are, on the other hand, many rules which know nothing of
any exemption in case of necessity. Thus, for instance, the rules that poison andpoisoned arms are forbidden, and that it is not allowed treacherously to kill or woundindividuals belonging to the hostile army, do not lose their binding force even if theescape from extreme danger or the realization of the purpose of war could depend uponan act of such kind. It may, however, correctly be maintained that all mere usages, incontradistinction to laws, of war may be ignored in case of necessity.214
Again, the proscription of poison and poisoned arms served as the ultimate example for
210 Diggelmann, ‘Beyond the myth of a non-relationship’ pp. 93-120; Bernstorff, ‘Use of force in internationallaw before World War I’, p. 260.
211 Benvenisti and Lustig, ‘Taming democracy’.
212 Toppe, Militär und Kriegsvölkerrecht, pp. 28, 30, 105.
213 Vec, ‘All's fair in love and war’; Price, The chemical weapons taboo, pp. 16, 20, 22, 49.
214 Oppenheim, International law, II, p. 79.

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International Lawyers’ Failingoutlawed weapons,215 and Oppenheim reinforced the binding force of these proscriptions
even in the event of ‘military necessity’: The most important elements of the law of war
would always remain valid independently of massive military and political interests.
The First World War made clear that this had been a vain hope and made Oppenheim’s
statement in retrospect sound like whistling in the dark. The international lawyers’ mantrathat poisonous weapons had to be the first weapons whose use to be outlawed and banned
was simply ignored when push came to shove. In the German attack at Ypres on 22 April
1915, new technological methods were used – far beyond the imagination of the treaty
drafters at the Hague conferences. Although, it is disputed whether the Hague Declaration
concerning asphyxiating gases did explicitly forbid the release of chlorine gas fromcanisters in the legal sense, this practice violated everything the declaration morally stoodfor and everything its drafters had tried to prevent. The poison’s effect on the fields of
Flanders was gruesome, and it was much different from earlier uses at the eastern front
near Bolimów, where Germans attacked the Russians in January 1915 with gas shells that
contained strong teargas.216 Nonetheless, the use of poison – the ultimate pariah – did not
end at Ypres. Scientists from other European countries that were involved in the First World
War and similarly interested in developing poison gas stepped in and supplied belligerents
with knowledge and material. 217 Although international law was still a justification
narrative for political and military actions,218 in the case of poison gas, this narrative was
hardly ever heard during the war. According to the author’s theory,219 even the militaries
that used poison gas tried to avoid public debates about this pariah weapon. Poison gas also
violated fundamental moral principles and ideas of military honour/martial honour. As
Richard Price put it in 1995, it was regarded to be associated ‘with womanly deception andthe ignominy of the death by poison (in contrast to the glory of a death achieved during an
open contest of brute physical strength among men)’.220

Image 3: John Singer Sargent, ‘Gassed’, oil painting (1919), recently evaluated as ‘one of
the masterpieces of Western art and one of the most disturbing humanistic commentaries on
war’.221
Source: Wikimedia Commons.
215 Same moral argument from Bordwell, Law of war between belligerents, p. 6.
216 Borodziej/ Górny, Der vergessene Weltkrieg. Europas Osten 1912–1923, I, p. 86f.
217 Schmidt, ‘Justifying chemical warfare’, pp. 129-58.
218 af Jochnik and Normand, ‘Legitimation of violence’, p. 77.
219 Vec, ‘Challenging the laws of war by technology’, pp. 105-34.
220 Price, ‘A genealogy of the chemical weapons taboo’, International Organization, 49 (1995), p. 81; Price,

The chemical weapons taboo, p. 23.
221 Brigham, ‘Foreward’, p. 8. See further Lubin, ‘American artists in the crucible of war’, pp. 35-7 on‘Gassed’.

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Although the debate in international law on the proscription of weapons went on during
and after the First World War and even intensified due to a number of disputed cases (forexample, regarding submarines), the general tone in publications changed remarkably after
August 1914.222 International legal writing was politicized, nationalistic, and militarized.
Lines of conflict that had previously been covered by the surface of a ‘shared civilization’
could not be denied anymore. Instead of celebrating the moral and legal progress that theirdiscipline had achieved worldwide, many international lawyers now blamed theircolleagues in hostile countries for destructing international law. The mood changed.
Pessimistic, fatalistic, and defeatist undercurrents became more prominent. 223 The
discipline’s positive self-perception ceased, and international lawyers were confronted withthe widespread denial of international law to a greater degree than they had everexperienced during wartime. The pre-1914 self-assessment that international relations were
subject to contributions of the most important cast of international lawyers looked like a‘legal autosuggestion’.224
The explicit provisions in non legally binding declarations and treaties against the use of
poisonous weapons read – due to their ineffectiveness in WW I – somewhat bitter inretrospect, particularly the reference to ‘public conscience’ in the Martens’ Clause, andtheir inherent limits in times of war became evident. All of these measures ‘provided little
restraint in the First World War.’225 The basic principle of the classic law of war that even ajust war does not justify all means was belied on the battlefields. Military measures werebeing justified as ‘reprisals’, as part of a ‘circle of justifying, scandalizing and reproducing
violence’. 226 In the end, military necessity was used to justify the means instead ofmobilizing international law to restrain their use and excesses. The practice of outlawing
only certain ways of warfare failed at preventing war overall and, ironically, the use ofsome of the criticized weapons in particular. The terminological, moral, and legal
delegitimation of ‘intrinsically evil’ weapons was not able to persist against technological,
military, and power narratives. The moral double standards of international lawyers not
only in the context of general warfare but also in that of imperialism and exploitation
explain why the project of moralizing international law failed. Late nineteenth-century
international law and moral understanding had always excluded ‘barbarians’ fromcelebrated progress of the restraint of war. Now, as the European countries fought eachother, they mutually blamed and labelled each other as ‘barbarians’ and subjected theiropponents to merciless warfare beyond international legal provisions. The moralizing
language and discriminating categories had promoted tools and justifications that seemed
like a backlash within a narrative of progressiveness and peacefulness227 – but in fact were
not. They referred to justification narratives that enabled merciless warfare of European
nations against the “other” – and othering was quite a popular political and moral strategy.
The First World War left not only public but also international lawyers with a ‘memory ofdisappointment’.228 Still, the legacy was not all bad. It offered and still offers the chance toreassess fundamental principles and beliefs of nineteenth-century classical internationallaw, to critically revisit its axioms and methods, and to measure them by their outcome.
The 1925 Geneva Protocol on Poison Gas provided a new positivized norm that banned
222 Onuma, International law in a transcivilizational world, p. 539; Weinke, Gewalt, Geschichte, Gerechtigkeit.
223 Lammasch, Das Völkerrecht nach dem Kriege, p. 3f: The idea of humanizing war was a vain hope.
224 Payk, Frieden durch Recht?, p. 62.
225 Gillespie, History of the Laws of War, 3, p. 23.
226 Brock, ‘Between sovereign judgment and the international rule of law’, p. 88.
227 Payk, Frieden durch Recht?, p. 78.
228 Alexander, ‘Good war’, p. 26.

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chemical warfare; in fact, it was seen as a self-reassurance and affirmation of the content oftreaties and of customary law that had been valid prior to the First World War but had often
been breached in praxis between states during the war.229 Furthermore, the Kellogg-Briand
Pact created during the Interwar Period finally indicated a paradigmatic change230 ininternational (legal) thinking: in addition to certain weapons or strategies, the act of war
itself should be outlawed. Even excelling former notions of civilization and humanity, thepact was eventually ignored on a grand scale. Nevertheless, these historical experiences
might help us – even today – to impose better laws and to more effectively enforce themafter critically assessing our common past. Methodologically, the fact that today’s
international law has an inclination to historicize normative issues should be seen as yet
another sign that it is possible to critically assess our common past. Twenty-first century
challenges of international law and international relations through new technologies or
methods of warfare or new actors of international law can be all addressed from a criticalhistorical perspective. Thankfully, the past is not merely the past in today’s academia. Past
failures can serve as references for how to deal with today’s challenges, since the simple
question of which weapons one may and may not use remains as urgent as ever.
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