Introduction Throughout history the key objective of rules of law has been the attainment of something akin to peace or, failing that, sufficient stability to allow people to get on with the business of bringing up families in an environment of relative wellbeing – both material and spiritual wellbeing. Before the idea of a fraternity of nations took hold in the late nineteenth century and early twentieth century, peace was normally established under the laws of a single empire, kingdom or republic that had generated or could generate sufficient military power to provide guarantees of security to tribes or cultural groups who might be disposed, either willingly or by coercion, to sacrifice some of their sovereignty to gain stability under that umbrella. This also often required some sacrifice of wealth for the development and upkeep of the military and infrastructure of the protecting power and, occasionally, the provision of direct contributions of manpower to the armies of the king or emperor to assist in the maintenance and extension of the jurisdiction they all shared.1 These arrangements normally required regular displays of that military power, occasionally against dissenting groups within the protected region, but more often against traditional or newly arrived enemies who contended for the land, labour and resources of the people in question.2 The alternatives of allowing favourable trading conditions and paying bribes to potential invaders often provided interim solutions until optimum conditions for military action emerged. Under this longstanding tradition the western world saw periods that could be defined as the peace of empires: the Egyptian peace, the Babylonian peace, the Assyrian peace, the Persian (or Medean) Peace, the Greek Peace, the Roman Peace, Pax Britannica/Pax Americana3 of more modern times. Rulers of these empires often made treaties of convenience with minor powers, particularly where this suited their need to focus their military might in other areas or to deal with stability issues at the centre. Until recent history the laws that defined the relationship between the military of these regimes and the rulers were anthropological and often brutal. The commitment of soldiers could have a religious basis in recognition of the theocratic position of the emperor or king, including a sworn tribal oath of allegiance, but
was more often to individual commanders who rewarded them with victories and a fair share of the spoils of conquest.4 An army could be raised under the theocratic sanction of the ruler with the financial approval of the custodians of the treasury, or by borrowing treasure from those who were prepared to gamble on their military success. Ultimately however, an army most often depended for its long-term cohesion in remote places on the personal qualities of the appointed commander. Discipline had to be ruthless. Other armies often had to be raised to put down revolts by armies in the field when their command changed hands or the commander exceeded his charter. Civil war was a regular occurrence and armies often had to pillage the countryside simply to survive. Of the ancient armies, only those of the Romans attempted a definition of the longer-term relationship of the professional soldier with the Republic and the conquered lands.5 This also collapsed in times of civil war and in the widespread chaos that accompanied the end of the Western Empire. Under these models large parts of the landscape were laid waste by armies having to fend for themselves, with individual soldiers adding to the chaos in the hope of returning home with some booty to justify their absence and their wounds. Warfare was often a fight to the death, both for the armies and the unfortunate people who made their living from the lands through which those armies manoeuvred. Starvation, sickness and misery surrounded these ancient battlefields, and sometimes hamlets, villages and whole cities simply disappeared. The inability of the resulting landscape to produce wealth often defeated the entire purpose of the campaign. As an alternative to death or slavery, defeated soldiers were encouraged out of necessity to join the victors and find their keep by joining in the pillaging. Military forces thus came to be seen as the antithesis of the idea of the international rule of law. The Thirty Years War of the Counter Reformation brought all this to a head with the decline of the universal religious and supranational authority of Rome in Europe. Warlord princelings and their followers cut a swathe through Europe’s fertile regions.6 When the War ended with the Peace of Westphalia in 1648, western Europe was devastated. The negotiated Peace consisted of a number of treaties that established the territorial integrity and, thus, the sovereignty of states.7 Sovereign states thereby became the primary institutional agents in an interstate system of relations. In most cases these states continued to be ruled by hereditary monarchs and aristocrats whose rule was absolute, but whose allegiance was, theoretically, to their people rather than to Rome. Critically, a large part of their authority in this regard was reflected in their ability to control their military forces.