The Phoenix of Colonial War: Race, the Laws of War, and the ‘Horror on the Rhine’ Rotem Giladi+* Abstract The paper explores the demise of the ‘colonial war’ category through the employment of French colonial troops, under the 1918 armistice, to occupy the German Rhineland. It traces the prevalence of—and the anxieties underpinning— antebellum doctrine on using ‘Barbarous Forces’ in ‘European’ war. It then records the silence of postbellum scholars on the ‘horror on the Rhine’—orchestrated allegations of rape framed in racialised terms of humanity and the requirements of the law of civilised warfare. Among possible explanations for this silence, the paper follows recent literature that considers this scandal as the embodiment of crises in masculinity, white domination, and European civilisation. These crises, like the scandal itself, expressed antebellum jurisprudential anxieties about the capacity—and implications—of black soldiers being ‘drilled white’. They also deprived postbellum lawyers of the vocabulary necessary to address what they signified: breakdown of the laws of war; evident, self-inflicted European barbarity; and the collapse of international law itself, embodied by the Versailles Diktat treating Germany—as Smuts warned, ‘as we would not treat a kaffir nation’—a colonial ‘object’, as Schmitt lamented. Last, the paper traces the resurgence of ‘colonial war’. It reveals how, at the moment of collapse, in the very instrument signifying it, the category found a new life. The Covenant’s Art.22(5) reasserted control over the colonial object, thus furnishing international lawyers with new vocabulary to address the employment of colonial troops— yet, now, as part of the ‘law of peace’. Reclassified, both rule and category re-emerged, were codified, and institutionalised imperial governance. Keywords: colonial war, laws of war, humanity, race, Rhine occupation 1. An elusive category When lawyers speak today of ‘colonial war’ at all, they often do so in order to mark the progress of the law of war, its transformation into international +* Lecturer in International Law, Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki: [email protected]. I am grateful to Stephan Heiss, Zsolt Koltay, Antonia Reiss and Sara Cohen for dedicated assistance in locating and translating various texts; and to Louise Bethlehem, Jan Klabbers, and the conference organisers for helpful comments. 1 humanitarian law (‘IHL’).1 To an extent, the only echo of colonial war in current IHL literature is a claim that law no longer engages with such categories; that its reach and domain are truly humanitarian and universal.2 Rendering the past inconsequential, as a means for overcoming it, remains a principal strategy ‘by which international [humanitarian, I would add] law rewrites its history’.3 To historians, triumphalism of this kind is suspect; and yet, awareness of the pitfalls of progressive history is not enough. Stephan Neff’s book on the history of the laws of war acknowledges ‘sadly’ that there was such a thing as ‘colonial warfare, which in many ways was quite distinct from conflict amongst developed (chiefly European) countries’; but informs the reader not to expect there ‘will … be much about’ it in the book.4 Historians of international law have crafted many of the tools required to reflect on colonial war,5 even if they pay less attention to colonial war as a distinct category or topic of study. Several critical engagements with the history of the laws of war are now available, but these remain few and far between: Wilde’s account of the law of occupation as part in a continuum of international territorial governance, or Mégret exploration of the equivalent ‘otherness’ of present-day ‘unlawful combatants’ and the savages of not-so-long-ago remain exceptions confirming the rule. 6 IHL professionals, boasting pragmatic sensibilities, rarely note works on the praxis or intellectual history of colonial warfare7 or in-depth and broad critical analyses such as Berman’s exposé on the Riff war or Kennedy’s sustained theoretical engagement with law and war.8 Last, the role of race—one of the key determinants of colonial war—still awaits systematic exploration.9 One question to ask about colonial war is ‘when exactly did the category disappear from the international legal landscape’? This ostensibly simple question immediately raises a number of preliminary issues. Thus, we have to 1 On progress in IHL: R. Giladi, ‘Rites of Affirmation: Progress and Immanence in International Humanitarian Law Historiography’ (unpublished ms). 2 M. Sassòli, A. Bouvier, A. Quentin (eds.), How Does Law Protect in War? (2011), Vol.I, at 97 (‘Up until the 1970s, IHL—or at least its codified norms—was strongly influenced by Western culture and European Powers’); M.A. O’Connell, ‘Historical Development and Legal Basis’, in D. Fleck. (ed.)., Handbook of International Humanitarian Law (2013), at 16 (‘“Eurocentric” … more a criticism of most literature … than a reflection of historical fact’). 3 A. Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, (1999) 40 Harvard JIL 3, at 7-8 4 S. Neff, War and the Law of Nations: A General History (2005), at 3. 5 M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870– 1960 (2001). 6 R. Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (2008); F. Mégret, ‘From “Savages” to “Unlawful Combatants”: A Postcolonial Look at International Law’s Other’, in A. Orford (ed.), International Law and its Others (2006), 265. 7 E.g. I.V. Hull, Absolute Destruction: Military Culture and the Practices of War in Germany (2004). 8 N. Berman, ‘“The appeals of the Orient”: Colonized Desire and the War of the Riff’, in K. Knop (ed.), Gender and Human Rights (2004), 195; D. Kennedy, Of War and Law (2006). 9 Survey in R. Knox, ‘Civilizing interventions? Race, War and International Law’, (2013) 26 Cambridge Review of International Affairs 111. 2 account, first, for the possibility that, perhaps under other terminology or through the operation of other doctrinal devices, it never quite ‘went away’.10 If so, we may well find the category repackaged into the principle of distinction, or the classification of armed conflicts into international and non-international, etc. Second, even if ‘colonial war’ has in fact disappeared from the landscape of the laws of war, it may have left traceable imprints on international law that no longer acknowledges its relevance. Such an enduring legacy could be found outside today’s framework for the regulation of warfare. Restructuring the internal divisions of international law—the erosion of the distinction between ‘law of war’ and ‘law of peace’ is just one example—tends to obfuscate such imprints that, today, are classified as ‘intervention’, ‘human rights’, ‘international governance’, ‘law of treaties’, etc.11 Third, the question assumes that the phrase ‘colonial war’ had determinate boundaries and fixed contents in both space and time. One could argue that ‘colonial war’ must mean, minimally, war against the already or would-be colonized; yet as a legal category, colonial war proves elusive. For one thing, the question assumes that colonial and metropole, centre and periphery, and even colonizer and colonized were reasonably distinguishable in the spheres of warfare. But what makes war ‘colonial’? Is it defined by geography or patterns of political subordination? Or simply by the enemy’s ‘otherness’? Is identity itself constructed through power relations, culture, race, or religion? Was the South African War—or, to drive the point through terminology, the Boer War—‘colonial’ and, if so, what made it so? Who, precisely, was the colonial object struggling, against empire, for political standing and legal recognition? Recalling the atrocities of that struggle, we may ask whether what mattered were a priori categorizations or, rather, the actual conduct of the war. Besides, what ought we make of the migration of colonial war’s agents, norms, practices and traditions from Francis Lieber’s Prussia to the American South, thence to the Philippines and Guantanamo Bay?12 From Imperial Germany to South-West Africa, then back to Nazi Germany? How can such violation of boundaries allow for a bounded biography of colonial war? All this implies that, like the category itself, its demise promises to be as elusive. Fourth, the question assumes that there had in fact once been such a legal category. Part of its elusiveness is rooted in the fact that we cannot be quite certain whether it comprised a distinct type of organized violence to which different rules applied; a distinct type to which the normal rules of warfare applied differently; or such a distinct type to which rules of warfare simply did not apply. Was the category itself hors les lois de la guerre? It may well have had one life (or several) in conference rooms or scholarly tomes, yet quite another ‘out there’, in faraway lands. Shifts over time, finally, do not obey clear trajectories, progressive or otherwise. 10 Mégret, supra note 6 (combatant status codes past distinctions between civilized, savages). 11 A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005); Knox, supra note 9. 12 P.A. Kramer, The Blood of Government: Race, Empire, the United States and the Philippines (2006); ibid., ‘The Water Cure’, The New Yorker (25 February 2008). 3 Such compound indeterminacy can be treated like a challenge, driving a project to precisely define the space, time, and subject-matter boundaries of the category and analyse its operation so as to pronounce the precise moment of its demise, record its death throes, and identify, post mortem, its lingering legacies. This paper aims at no such nécrologie. Rather, embracing the category’s elusiveness, it focuses on race—a single yet itself elusive aspect of colonial war.