ASIL 2017 Recap: Grotius Lecture: Civil War Time: From Grotius to the Global War on Terror

By: Amy Flick

The American Society of International Law (ASIL) kicked off its 111th annual meeting in Washington, D.C. on April 12, 2017 with its 19th annual Grotius Lecture. The 2017 Grotius Lecturer was David Armitage, Lloyd C. Blankfein Professor of History at Harvard University, and Distinguished Discussant Mary L. Dudziak, Asa Griggs Chandler Professor of Law at Emory University School of Law.

The program was introduced by Camille Nelson, Dean of American University Washington College of Law. She remarked that Professor Armitage and Professor Dudziak have each published on the subject of civil wars. Since modern conflicts do not fit into a classical international law model of conflicts between states, a discussion between historians on whether international law applies to civil wars is an appropriate topic for annual meeting.

Professor Armitage’s book is Civil Wars: A History in Ideas, which Professor Armitage acknowledged was inspired by Professor Dudziak’s book War Time: An Idea, Its History, Its Consequences. Professor Armitage observed that civil war is a recent field of study. History has traditionally been separated into war and peace times, with war considered temporary, but with modern conflicts, it is difficult to determine when wars begin or end. Civil wars are not declared, they resonate even after a conflict ends, and they are prone to recur. Post World War II has been an age of civil wars, with 20 on average at any one time, and consequences arising from internal wars becoming international through intervention and outside combatants.

Professor Armitage explored the history of the study of civil war, beginning with the Romans, who likened them to natural phenomena like volcanoes. Grotius distinguished between public and private wars, classifying civil war as a public war against the same state, and finding any peace preferable to civil war, with civil wars never categorized as just wars. By contrast, Vattel disagreed with Grotius on the existence of private war, and positing that a civil war could be a just war if evils within a state are intolerable. His book The Law of Nations influenced 18th and 19th century United States thought and was cited in the Prize Cases, 67 U.S. 635 (1862). “When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” The Lieber Code, though, did not distinguish between insurrection and civil war, and defined the 1860s U.S. conflict as a rebellion, not a civil war, allowing the suspension of habeas corpus.

Professor Armitage brought the lecture to the current era with the extension of the Geneva and Hague Convention protections to internal conflicts with Article 3 of the Geneva Conventions and the 1977 Protocol II. In discussing the current Syrian conflict, he addressed the problem of language. Assad has called the conflict of 2011-2012 an insurrection, not a civil war. The ICRC confirmed it as an “armed conflict not of an international character,” covered by international humanitarian law. Professor Armitage pointed out the political reluctance to call a conflict a civil war, with definite declarations and peace treaties, even though since World War II there have been more peace treaties for civil wars than for inter-state conflicts. He concluded by calling this an urgent moment in history to define what is a civil war and what we value, as more political disputes are being described as “civil wars.”

Professor Dudziak found the categorization of war in categories of civil war and its opposite inter-state war as useful, but remarked on another category of war, with examples from 1864 of the United States Civil War and the U.S. Indian Wars. The U.S. Civil War was considered a “real war” in legal history and treated as fitting in the Lieber Code definition of civil war as an appropriate example of the use of war powers. The carnage of the civil war created widespread suffering which the public had to respond to by creating a “community of suffering” and humanizing the other side. By contrast, the Indian Wars of the 19th century have not been considered civil wars. Native Americans were considered barbarians, outside the borders of civilization and outside non-combatant immunity. The Lieber Code limits did not apply to “savages.” The exception of uncivilized people from protection culminated in the Sand Creek massacre of the Cheyenne.

Professor Dudziak concluded by declaring that in the late 20th and early 21st centuries, peace is not a time, it is an identity for people isolated from the battlefield. The absence of shared suffering has created an American apathy about war. Ending on a more hopeful note, she asked “Wouldn’t it be great if people could be brought together in peace instead of suffering?”

[Check out ASIL’s YouTube channel for the full video of the 2017 Grotius Lecture. For another recap on this program, visit ASIL Cables].