Introduction
Recent years have witnessed vivid discussion among historians, jurists, and political scientists on the effectiveness of the Laws of Armed Conflict (also known as the Laws of War and as International Humanitarian Law, or IHL) in mitigating harm to legally protected groups, such as civilians and prisoners of war. Specifically, the debate centres on the relationship between a state’s public commitment to international law—through treaty ratification or declared adherence to customary legal practices—and its armed forces’ actual conduct in the field.
Valentino et al. and Downes conclude that there is little to no correlation between such publicly declared commitments and the protection actually accorded on the ground.Footnote 1 By contrast, a recent study of the International Committee of the Red Cross (ICRC) is more optimistic, maintaining that informal culture and ingroup socialization can serve as facilitators of wartime soldierly restraint.Footnote 2 Morrow, employing a game theory framework, presents yet another, somewhat more nuanced, view, suggesting that IHL commitment may be effective under certain conditions; notably, when it may help to align expectations among warring parties, provided they are inclined to restrict warfare in the first place. However, even according to Morrow, the IHL rules meant to protect civilians and prisoners-of-war (POWs) are often the least observed. Despite formal policies, individual soldiers frequently violate protections IHL prescribes for enemy civilians and POWs on their own initiative. In contrast to centralized control of prohibited means of warfare such as chemical weapons, effective protection of enemy civilians and POWs depends on the independent choices of multiple actors and, consequently, demands a military justice system that is both willing to and capable of actively investigating and punishing violators. Regrettably, such systems often lack the resolve or resources to act as an effective deterrent.Footnote 3
However, large-scale quantitative studies often overlook much of the detail and subtleties inherent to human interactions, and a case study can be an effective tool to uncover such overlooked factors. Accordingly, in this article, we aim to scrutinize and reassess the conclusions of the aforementioned large-scale studies, by delving into a particularly complicated historical event: the Boxer War in China (1900–1901), a conflict between a coalition comprising eight powers—the United States, Great Britain, Germany, Japan, Russia, France, Italy, and Austria-Hungary—and an anti-foreign religious sect, known among Westerners as the ‘Boxers’, supported by certain regular military units loyal to the Qing court.
1900 drawing of Qing Regular soldiers (left) and Boxers (right). Source: Peter Harrington, ‘The Boxer Rebellion’, in Leipziger Illustrire Zeitung, 1900, p. 24: https://en.wikipedia.org/wiki/Boxer_Rebellion#/media/File:Chinese_soldiers_1899_1901.jpg. (Please note that the images in this article are for illustration purposes only).
Did the different members of the anti-Boxer coalition view themselves as committed to the laws of war during this conflict, and if so, how did that influence their behaviour on the ground? Our examination focuses on dissecting the intricate dynamics of public adherence to international norms concerning the protection of unarmed Chinese civilians, wounded enemies, and captives by key members of the anti-Boxer coalition. This conflict presents an exceptional case study, occurring as it did in the interlude between the formulation of the first and second Hague Regulations (1899 and 1907), both cornerstones of contemporary IHL. Our focus will be more on battlefield behaviour and less on allied occupation regimes. For reasons of space, we will also not discuss the war crime of pillage, frequently committed by all allies, except when it was accompanied by physical harm to civilians or captured enemy fighters.
1900 caricature acknowledging atrocities on both sides, Puck, 3 August 1900. Jesus and Confucius jointly wonder: ‘Are our teachings, then, in vain?’, while watching the Boxers and the allies fight. Artist: Udo Keppler; Publisher: Ottmann Lith. Co.; Original copyright: Keppler and Schwarzmann.
This analysis will focus on Japan, which, during the era of the Boxer War, sought to align itself with Western international law. This strategic alignment was aimed at establishing Japan’s status as a ‘civilized’ nation, in the belief that that would release it from the unequal treaties imposed on it since the 1850s. Adherence to the (originally European) international laws of war was considered a prime criterion for determining a nation’s ‘civilized’ status. Japan’s involvement in the Boxer War, its first joint international intervention, therefore, provided a critical opportunity to affirm this status. This backdrop explains our particular emphasis on Japan, a newcomer to the established international legal community. Notably, most states’ acceptance into this community occurred only after the main body of the laws of war had already been established.Footnote 4 Thus, like Japan, each such state, at its admission point, was legally required to accept the existing laws-of-war corpus wholesale. Admittedly, this requirement was not quite as restrictive as it first seems, for, as newcomer states quickly learn, much of this corpus is subject to a range of competing concurrent interpretations. Unfortunately for newcomers, however, they also soon discover that much of that flexibility is denied to them, as they are often required to display exemplary conduct, far beyond what is contemporarily expected from established Great Powers, if not from most long-standing members.Footnote 5 Japan, at the time of the Boxer War, was among the first non-Western newcomers to be faced with such a predicament (preceded to some extent by Russia and the Ottoman empire). Therefore, its experience, from that war, merits greater attention.
Thus, we will explore how Japan developed its legal position in this context and how this influenced its soldiers’ conduct towards Chinese civilians and captives, taking into consideration the hierarchies and internal dynamics of the Japanese expeditionary force. Motivated by a desire for recognition and influenced by interstate competition, the Japanese military command often favoured adopting, among its allies’ diverging legal approaches, the most expansive interpretation of the protections afforded to enemy civilians, but less so regarding captured enemy combatants. Furthermore, Japanese soldiers on the ground often exhibited closer adherence to their military’s formally stated policies than some of their allies, largely due to the highly disciplined nature of Japanese military culture at that time. Nevertheless, even in the Japanese case, alignment between formal policies and actual actions was far from absolute, with the degree of divergence depending on various factors. In summary, as we will demonstrate, the factors influencing Japanese military behaviour were complex, with some promoting restraint, while others fostered brutality and atrocities.
The article proceeds as follows: it lays out the background of the Boxer War and of the relevant contemporary laws of war, followed by a discussion of both the legal approaches embraced, and of the actual conduct in the field by the soldiers of other members of the eight-nation alliance—Germany, Great Britain, the United States, and Russia (for reasons of space, we excluded discussions of France, Italy, and Austria-Hungary). The article then shifts to Japan’s formulation of its legal policies, as well as to examining to what extent these policies were actually implemented on the ground. Finally, we will situate our findings within a broader context, offering insights into both Japan’s peculiar position as well as the larger issue of the complex relations between formally adopted legal approaches and actual military practice in the application of IHL. This is an elaboration of Morrow’s arguments, showing how, as in the case of Japan, the extent and manner in which belligerents apply the international laws of war are not only the result of an alignment of expectations between them and their enemies, but also of their relations (including competition) with their allies, as well as of their own specific history and culture.
The Boxer War
The Boxer War (or Boxer Uprising or Rebellion), spanning approximately June 1900 to September 1901, is commonly recalled as an imperialist venture. Rightly so, as each anti-Boxer alliance member was considerably driven by similar—partly aligned, partly competing—objectives, of protecting their nationals, economic interests, and territorial concessions in northern China. However, colonialist-imperialist aims notwithstanding, it was also an international humanitarian military intervention focused on the rescue of foreigners and Chinese converts besieged in Peking’s foreign legations.Footnote 6 Furthermore, this war marks a significant chapter, not only in the history of international law, modern warfare, and Western imperialism, but also in the history of Qing China.
1898 (pre-war) caricature illustrating the allies’ imperialist motivations, Le Petit Journal, 16 January 1898. China is depicted as a pie about to be carved up by Queen Victoria (Britain), Kaiser Wilhelm (Germany), Tsar Nicholas (Russia), Marianne (France), and a samurai (Japan), despite the protests of (the derogatorily portrayed) Chinese General Dong Fuxiang (who during the Boxer War would fight alongside the Boxers).
The coalition’s primary target—the militant societies known in the West as ‘Boxers’—became increasing popular among peasants in the North Chinese provinces of Shandong, Shanxi, Zhili, and as far as Manchuria, in late 1899 and throughout 1900. Rooted in a tradition of mystical Daoism, they were intensely anti-Christian and anti-foreign.Footnote 7 Numerous Chinese peasants, desperate following a prolonged drought, had to watch with clenched fists as foreign diplomats and missionaries intervened on behalf of Christian converts in local disputes over resources, while they, the ‘heathen’ Chinese, could resort only to futile pleas to unresponsive Qing officials. In addition to this irksome, parallel power structure, Christian missionaries and their Chinese followers also railed against local folk beliefs, including rain rituals, and thus were blamed by many for the drought of 1899–1900. The Boxers offered the frustrated, unemployed peasants exciting diversion, access to resources squeezed from Christians, and magical rituals supposed to protect them from enemy bullets. As 1899 gave way to 1900, violent attacks against Chinese converts escalated, followed by assaults on missionaries and other Westerners who roamed the countryside. The foreign diplomats sharply protested to the Qing court, asking for immediate remedy.Footnote 8
Christian victims of the Boxers. Left: Illustration of the ‘Moukden Massacre’, Le Petit Journal, 5 August 1900.
Throughout the spring and early summer of 1900, the Imperial court in Beijing vacillated about the Boxer Movement. On the one hand, the Chinese central government had a long tradition of suppressing secret societies. Furthermore, the Boxers undermined social stability by attacking their Christian neighbours, openly defying Qing authority, endangering delicate relations with foreigners, and destroying precious national infrastructure such as railways and telegraph lines. In several instances, they even killed government soldiers sent to suppress them. On the other hand, the Boxers also had the potential to become an auxiliary militia that could help the court deal with foreign threats, an idea that had become increasingly attractive to the de facto ruler of China, Empress Dowager Ci Xi.Footnote 9
Throughout May and June, foreign diplomats grew increasingly nervous. On 10 June, the Empress Dowager appointed the staunchly anti-foreign Prince Duan to head the Zongli Yamen (the Qing rough equivalent of a foreign ministry). The prince was a known Boxer sympathizer.Footnote 10 As it was rumoured that the Boxers would soon reach Beijing, the diplomats resorted to the forceful methods all too common in the tradition of foreign imperialism in China: calling upon their troops to protect the legations. Keen to secure the communication lines between the concession port in Tientsin and Beijing, the Westerners and the Japanese occupied the Dagu Forts, China’s primary fortifications en route to the capital. In response, the Empress Dowager tried to compel the foreign diplomats to leave Beijing under escort.Footnote 11 But, this attempt failed, as violence on the streets escalated. The foreign diplomats and their guards, especially the Germans, behaved bullishly towards Beijing residents, who in turn grew increasingly pro-Boxer.Footnote 12 Anti-foreign sentiment also became commonplace among Qing soldiers. On 11 and 20 June, respectively, Chinese imperial troops killed the Japanese diplomat, Sugiyama Akira, and the German minister, Baron Clemens von Ketteler. Now in a state of complete mistrust of the court, the foreign diplomats refused to leave Beijing.Footnote 13
Sugiyama Akira’s and Clemens von Ketteler’s assassinations. Left: Illustration of Clemens von Ketteler’s assassination, Le Petit Journal, 22 July 1900. Source: gallica.bnf.fr/Bibliotèque nationale de France; https://gallica.bnf.fr/ark:/12148/bpt6k716391q/f1.image. Right: Sugiyama Akira’s assassination as portrayed in a 1900 French advertisement card. Source: Card purchased by the authors.
An initial relief expedition, led by British Admiral Sir Edward Seymour, failed to break through to Beijing.Footnote 14 With the danger to the diplomats growing increasingly acute, the foreign powers had to dispatch a stronger relief force, and rapidly. On 21 June, following the Dagu Forts’ occupation, the Empress Dowager declared war on all foreign powers, but without mentioning any of them by name. She also executed or marginalized moderate court officials.Footnote 15 For many foreigners, the Boxers and the Qing court had now become one and the same. Meanwhile, fighting spread into the three provinces of Manchuria, where invading Russian troops led large-scale battles against Boxers and Qing units.Footnote 16
1900 drawing of Admiral Seymour and his wounded troops returning to Tianjin. Artist: J. Randier.
Being geographically closer to China than all other powers (except Russia), as well as contemporaneously uninvolved in any other war, Japan was the only country that could immediately dispatch a decisive force. In addition, Japan was widely regarded as having proven capability to beat China, in light of its recent victory in the 1894–1895 (First) Sino-Japanese War. As a result of that war, Japan also possessed the necessary expertise and intelligence on Chinese geography, society, and armed forces.Footnote 17 Britain implored Japan to act promptly, as the news from Beijing grew increasingly alarming. Since 24 June, the foreign community (along with several thousand Chinese Christians) had been besieged in two enclaves, the legations quarter and the Beitang Cathedral, under conditions that—as the besieged themselves continuously reported back to their homelands—were deteriorating by the day. ‘The situation is desperate. Make haste’, the British cabled the Japanese foreign minister.Footnote 18 The North China Daily News, a China-based foreign newspaper, reminded its readers that Western countries had just humiliated Japan, robbing it of some of the fruits of its victory over China with the infamous 1895 ‘triple intervention’ by France, Germany, and Russia. ‘The other European powers and the United States cannot get large forces on the spot without a delay of weeks, and it is to Japan that we are all turning to stem the tide of rapine and rebellion against civilization.’Footnote 19
Japan, which until recently was not really considered fully ‘civilized’ by most European powers, despite its rapid Western-style modernizing reforms, was now ironically called upon to ‘save civilization’. In the late nineteenth century, any non-European country hoping to ‘join the club’ of Western nations, enjoy equal rights, and rid itself of humiliating unequal treaties was formally required to meet Western imposed standards of ‘civilization’, including efficient administration, abolition of seemingly ‘barbarian’ customs, and adherence to international (i.e. Western) law, especially its laws of war. Japan now had an opportunity to ‘show off’ its newly acquired level of (Western) ‘civilization’ to its allies.
As a non-Christian country, Japan was of course less concerned with the fate of missionaries and converts in China. But it did feel a need to retaliate for its diplomat’s death.Footnote 20 Moreover, Tokyo was apprehensive of the anti-foreign movement in China, as well fearing that it would be outmanoeuvred by other foreign powers. Based on such considerations, Prime Minister Yamagata Aritomo decided to send the 5th division to China, representing a commitment of 10,000 troops.Footnote 21 Japan eventually increased its commitment to about 20,840 troops, thus becoming the largest force, by far, among the eight-nation military expedition to Beijing (which, all in all, consisted of about 50,000 soldiers, of which about 13,150 were Russians, 12,020 British, 3,520 French, 900 Germans, 80 Italians, and 75 Austro-Hungarian).Footnote 22 Separately from the multinational expedition to Beijing, Russia also launched a unilateral invasion of Manchuria with over 100,000 soldiers, justifying its actions as a response to cross-border raids by Boxers and to secure its extensive railway concessions in the region.Footnote 23
Soldiers of the Eight Nation Alliance. Above: 1900 Japanese print of the Eight Nations’ Navy soldiers (from top to bottom, left to right, representations of the Italians, Americans, French, Austro-Hungarians, Japanese, Germans, Russians, and British).
For convenience’s sake, and for the benefit of our later analysis, we shall divide the Boxer War, after the failure of Seymour’s expedition, to four distinct parts: 1) the occupation of Tianjin (13–14 July); 2) the march to Beijing, including the storming of the city and the relief of the besieged legations, up to the occupation of the Forbidden City (4–28 August); 3) the allied occupation regime in Beijing (August 1900 to September 1901); and 4) mop-up operations in the countryside, designed to eliminate suspected Boxers and their sympathizers (September 1900 and the following months).
Race to the bottom: The dynamics of radicalization on the ground
Prior to describing the allies’ varying legal positions and behaviour patterns, it is important to note the war’s brutalizing impact on all participants, regardless of their legal approaches. As early as June 1900, during the failed Seymour expedition, the allies noticed that it was highly difficult to distinguish between civilians and combatants, as all Boxers were not regular soldiers, but rather arose from the civilian population. As British Captain Gordon Casserly related: ‘a very slight alteration of dress sufficed to convert into a harmless peasant the Boxer whose hands were red with the blood of defenceless Europeans, or of Chinese Christians whose mangled bodies had choked the river’.Footnote 24 In the Langfang battle (18 June), the Boxer crowds who charged against Admiral Seymour’s machine guns included scores of both teenagers and elderly people. Sometimes even children participated in Boxer assaults.Footnote 25 Additionally, because Boxers wore red sashes, troops sometimes saw every Chinese dressed in red as a Boxer, killing such people without further ado.Footnote 26
1901 picture titled ‘Company of Boxers, Tien-Tsin, China’, demonstrating the difficulty of distinguishing Boxers from civilians. Original copyright: Whiting View Company.
The challenge of distinguishing between Boxers and ‘peaceful’ civilians created a vicious cycle. The more rural Chinese joined the Boxers—whether coerced by activists or to defend their towns from invading forces—the more the soldiers of the various allies became inclined to regard all Chinese as Boxers. Once (nearly) all villages came to be considered sources of danger, the expediency of razing ‘hostile’ villages to prevent the formation of enemy bastions in their rear became manifest; a policy which, in turn, further compelled Chinese villagers to join the Boxers.Footnote 27
Russians soldiers demolishing houses that might shelter Boxers at Tongu (1901). Publisher: Underwood and Underwood.
The Chinese fighters, both Boxers and Qing soldiers, were also major contributors to the escalating brutalization. Allied soldiers who fell into Chinese hands rarely survived. In fact, Boxers and Qing soldiers typically killed all foreigners they encountered, including civilians, often after severe torture, notwithstanding the efforts of some Qing commanders to protect foreign non-combatants. Chinese violence also spilled from enemies towards compatriots. Often, in cases where Chinese squabbled among themselves, regular soldiers killed Boxers and vice versa, as well as civilians. When the allies approached Chinese towns, they often encountered severed heads glaring at them from the city walls.Footnote 28
From a humanitarian perspective, the anti-Boxer campaign in northern China was a quick race to the bottom. The legal positions of the various contingents and interventions by commanders could sometimes ameliorate this brutalization, but only up to a point. This should be remembered when examining the legal positions of the different allies.
How to treat Chinese civilians, hors de combat, and enemy captives? Perspectives of international law
In 1899, all the nations that would later participate in the Boxer War attended the Hague Conference. There, among other treaties, they concluded the Hague Convention with Respect to the Laws and Customs of War on Land, also known as the ‘Hague Regulations’, which provided various protections to POWs, including to enemy soldiers incapacitated by injury or disease (hors de combat), and to surrendering enemy soldiers as well as to civilians.Footnote 29 All eight allies had signed this multilateral treaty by 1899, at the Conference. Seven of them further ratified it during the Boxer War: the six European allies on 4 September 1900, when the treaty also came into force, and Japan soon thereafter, on 6 October 1900. Although the United States only finalized its treaty ratification after the conclusion of the Boxer War (in April 1902), it expressed presidential intention to do so in April 1900. Qing China, by contrast, despite attending the 1899 Hague Conference, chose not to sign the Hague Regulations (unlike certain other conference-promulgated treaties), because its diplomats ‘feared that accession to the Convention would be disadvantageous to [it] … in subsequent wars with foreign states’.Footnote 30 The Chinese ambassador to St Petersburg further explained that the Qing Army was insufficiently advanced to correctly uphold the treaty provisions.Footnote 31
Considering this context, the Hague Regulations did not formally apply during the Boxer War, irrespective of either their general coming into effect or their ratification by most allies, as treaty Article 2 clearly stated that its provisions were binding only in wars in which every belligerent was a party to the convention. But unlike ‘treaty international law’, ‘customary international law’ is considered, in essence, obligatory irrespective of any enshrining of it in a treaty. Thus, rules inscribed in an international convention may apply even if the convention, as a whole, does not, and even to states not party to the convention, when they are deemed reflective of customary international law.Footnote 32 But, to what extent were each of the Hague protections afforded to civilians, wounded enemies, and captives expressions of pre-existing customary laws of war? Moreover, to what extent, if any, did customary laws of war apply at the time, in a conflict such as the Boxer War? Admittedly, answering such questions is difficult, as the content of customary norms is almost inherently vague and, at least to some degree, disputed.Footnote 33
In addition, the currently prevailing narrative among scholars of international law maintains that the international laws of war, and indeed international law at large, were, at the time, only applicable between states.Footnote 34 Accordingly, until the mid-twentieth century, the laws of war did not generally extend to internal wars, such as civil wars and rebellions, or to any other form of armed conflict against non-state armed forces. An exception applied, however, when a state involved in an internal conflict chose to grant ‘belligerent status’ to its non-state adversary, thereby voluntarily applying the laws of war as if it was engaged in an interstate conflict. Such internal conflicts were termed ‘belligerencies’, distinguishing them from other internal conflicts, termed ‘insurgencies’ or ‘insurrections’, which were ungoverned by the laws of war.Footnote 35 A popular version of this prevailing scholarly narrative additionally maintains that, in keeping with traditional international law’s emphasis on state sovereignty and consent,Footnote 36 not even all inter-state armed conflicts were legally required to be regulated by the laws of war, but rather only those that were formally declared as wars.Footnote 37
The prevailing narrative of the present day further holds that traditional international law, having been nearly entirely rooted in practices of European nations, was generally seen as only applicable to them and to their offshoots (i.e. other Western powers, such as the United States) and not to non-Western nations. Such nations were traditionally deemed ‘uncivilized’ by Europeans-Westerners, and, thus, beyond the pale of international law. By the late nineteenth and early twentieth centuries, there had already been a gradual recognition that international legal norms could potentially also apply to non-European and non-Western nations. But this acknowledgment was subject to the condition that those nations met the supposed ‘standard of civilization’ established by European and Western powers.Footnote 38
If any of the abovementioned elements of the present-day prevalent narrative were, indeed, accurate, then the laws of war, or even of international law as a whole, should had been regarded by the allies as utterly irrelevant to the Boxer War. At the time, many Europeans and Westerners regarded China as being among the uncivilized (or, at best, semi-civilized) nations, and the Boxers’ violence against foreigners had only heightened support for that view.Footnote 39 In addition, there was no formally declared state of war between the allies and China, because the Empress Dowager’s war declaration avoided naming any particular state; and, in any case, the Boxers were primarily a non-state armed force, rather than a Qing government organ.Footnote 40 So, given the supposed inapplicability of international law to the conflict, why did the allies in their joint note to the Chinese government deem the Boxers’ wartime acts of ‘murde[r], tortur[e]’, ‘massacr[e] … desecrate[ions]’, ‘pillag[e] and destr[uction]’ to be ‘crimes against the law of nations’?Footnote 41 How did the allies regard themselves as having a legal basis, in international law, to punish Boxer fighters and Qing officials for such acts, actually prosecuting many such individuals, including some even by means of an international criminal tribunal?Footnote 42 Even more importantly, why did many of the allies, including Japan, regard the application of at least some, varying portion of the laws of war to be legally mandated in the Boxer War?
The short answer is that the present-day prevalent narrative, as presented above, is far from accurate. The element of truth in that narrative lies in the fact that the legal positions depicted in it—positions which limited the application of international law and, accordingly, regarded it as inapplicable to conflicts such as the Boxer War—had, indeed, enjoyed significant support throughout the nineteenth century and that support had even peaked in the decades leading up to the First World War, the era during which the Boxer War had occurred. Yet, the significant faulty element in that narrative lies in the fact that it assumes that in the past there was wide consensus regarding the scope of application of the laws of war, and of international law at large, and that the legal positions denying the applicability of international law to conflicts such as the Boxer War represented that consensus. In truth, those positions were never consensually held, not even during the decades leading up to the First World War. But before expounding on the narrative’s element of inaccuracy, some further elaboration in needed on its element of truth.
During the late nineteenth and early twentieth centuries, there was significantly less willingness to apply the laws of war to undeclared conflicts, particularly those involving non-European groups or forces not aligned with a sovereign state. This contrasted sharply with the practices of the late eighteenth century and the period following the First World War. Additionally, there was a broader reluctance to apply international law to interactions outside the traditional framework of European sovereign states.
The relatively high support for limiting the application of international law during the nineteenth century, particularly in the decades leading up to the First World War, stemmed from a complex interplay of factors. During this period, liberal ideologies held less sway compared to the late eighteenth century or the post-First World War era, as many of Europe’s leading powers were non-liberal monarchies. The development of laws governing warfare was significantly influenced by a pervasive fear of rebellions, a fear heightened by the trauma of the French Revolution and subsequent uprisings, such as the 1871 Paris Commune during the Franco-Prussian War.
Although disregard for non-European and non-Western nations was evident even during the eighteenth century, a period marked by the flowering of liberalism, this sentiment grew nonlinearly throughout the nineteenth century. It was particularly influenced by rising nationalism, the acceptance of Social Darwinist theories in later decades, and a renewed surge in colonialist initiatives. Additionally, this era witnessed the consolidation of the modern state in Europe and a decline in the influence of natural law jurisprudence. Replacing it were two dominant jurisprudential schools: historical-sociological jurisprudence, which viewed international law as a product of European-Western culture rather than a universal code, and statist-positivist jurisprudence, which emphasized the primacy of domestic legislation and reinforced a rigid approach to legal distinctions, including those between domestic and international law, war and peace, and the roles of state and individual.
These shifts contributed to a growing Western preference for domestic legal norms over those derived from natural law and the law of nations, clearly manifest in how European powers regulated insurrections and other internal emergencies—termed ‘states of siege’ in Continental Europe and ‘martial law’ in England. This trend also significantly affected the interactions between European powers and the non-European nations under their control.Footnote 43
These (and other) factors all contributed to the contemporary surge in support for the positions reflected in the prevalent narrative presented above. Nevertheless, the narrative is inaccurate, as none of those positions had ever been unanimously held, not even during the late nineteenth and early twentieth centuries. Rather, alongside each of those positions, other competing legal positions regarding the ‘correct’ meaning of the relevant law had always existed, and relative support for each competing position fluctuated over time.Footnote 44
Using a broad brush, one may say that by the turn of the twentieth century, four competing approaches coexisted regarding the extent of the application of the customary laws of war to conflicts such as the Boxer War.Footnote 45
A punishment approach, perhaps the oldest of the four, advocated for unrestricted warfare against so-called ‘uncivilized’ nations, as well as against nonstate armed groups, such as rebels. In this view, being an unlawful combatant (in other words, a ‘rebel’, ‘brigand’, ‘bandit’, etc.) constituted an international crime in and of itself, and so did being part of an ‘uncivilized’ group. Moreover, the two were believed to belong to a small, unique subcategory of international crimes so severe that they merited accountability both individually from the persons involved and collectively from their groups as a whole. Individual accountability meant that those identified as such criminals could be put on trial for these international crimes, as well as for any other war crimes they might have personally committed. However, such trials often ended up being superfluous, because immediate extrajudicial execution of such ‘perpetrators’ was considered legal in certain situations—such as when they were caught in the act. Moreover, the necessity for trials was further diminished in light of the collective accountability for unlawful combatancy and for being ‘uncivilized’. Such a form of accountability was presumed to legally authorize unrestricted warfare against both fighters and civilians of the offending group, with such warfare viewed as a collective punishment for the group’s violation of international law.Footnote 46 In sum, this approach could have allowed the allies to place Boxers on trial for war crimes, as well to extrajudicially kill them and the civilian population from which they came, while absolving their own [allied] troops from any war crime accusation.
The second doctrine may be called the non-application approach. In contrast to the punishment approach, this doctrine was not based on a punitive rationale but rather on the belief that international law simply did not apply to dealings with ‘uncivilized’ or nonstate adversaries. The key practical difference between these two approaches lay in their legal implications for enemy combatants. While both approaches allowed European-Western state soldiers to operate free of the constraints of the laws of war, only the punishment approach still required that the ‘uncivilized’ or nonstate adversaries adhere to these laws. Consequently, under the non-application approach—unlike the punishment approach—European-Western states could not legally prosecute captured enemy fighters like the Boxers for criminal violations of international law on an individual basis.Footnote 47
In wars with ‘uncivilized’ and nonstate adversaries, a minimalist-discretionary approach substituted the robust requirements of international law with a minimal obligation merely to apply ‘such rules of justice and humanity as recommend themselves in the particular circumstances of the case’.Footnote 48 According to this approach, while not directly applicable in wars against those kinds of enemies, the laws of war, at least the most basic of them, did, nonetheless, provide some guidance regarding the constraints that must be maintained. Therefore, it was made clear under this approach that ‘[t]he mere fact that certain laws of war are applied to insurgents [or to uncivilized], out of a sense of humanity, does not in itself constitute recognition of the status of belligerency’.Footnote 49 In practice, the result of the application of this approach was usually only a little more restrictive than the application of the ‘punishment’ or ‘inapplicability’ approaches because it was usually understood as only prohibiting exceptionally cruel, clearly unnecessary measures.Footnote 50 Nevertheless, interpretations of the notion of ‘minimal’ differed among observers and policymakers, with some applying greater legal restrictions on European and Western state armies than others.Footnote 51
Lastly, an expansive-application (or adaptation) approach sought to adjust international law to accommodate cross-cultural interactions or to the conditions of wars involving nonstate actors. This approach mandated that, even in such conflicts, all parties—or, alternatively, at least the European/Western side, regardless of the opposing side’s conduct—should adhere to the rules of civilized warfare ‘as far as possible’. Interpretations of the ‘as far as possible’ notion and its applicability varied among proponents of this approach. Note that even proponents of this restrictive approach classified certain combatants as ‘unlawful’ and maintained that they could be criminally prosecuted or sometimes even summarily executed. However, they applied this classification narrowly, reserving it only for combatants such as those who fought in civilian clothing or belonged to non-state forces primarily engaged in looting. Moreover, they did not consider the involvement of such fighters as a justification for broadly reducing the application of the laws of war to the overall conflict, for example, by justifying mass killings of uninvolved enemy civilians.Footnote 52
As we shall see, those different approaches were embraced (with numerous variations) by different allies during the Boxer War. It is important to note that the sudden and chaotic outbreak of this unforeseen conflict, coupled with the rapid escalation of the crisis in China, prompted all involved powers to enter the fray hastily. This urgency left no time for the development of clear, systematic legal policies. Therefore, the legal approach of each ally is usually only implicit in various documents, as opposed to being clearly delineated in comprehensive position papers. Moreover, the hurried nature of the response meant that each power’s existing perspectives and experiences from recent and historical conflicts played a crucial role in shaping their legal stances and actions.Footnote 53
The position and behaviour of imperial Germany
Among the five nations discussed herein, Germany was arguably the one most strongly influenced by the aforementioned nineteenth-century trends which diminished the scope and applicability of international law. The sociological-historical and statist-positivist jurisprudential schools wielded significant influence in Germany, fostering deep resistance to the expansion of international law beyond the inter-state and Western spheres. Accordingly, many contemporary German jurists asserted that international law’s scope of application was limited to interactions between states, or between nations of a European culture, rejecting its application to internal conflicts as well as to wars against non-Western enemies. Others went even further, generally exhibiting very limited commitment to customary international law, if not to international law in general. Such positions had received considerable support from the founding fathers of the German empire, including Prince Otto von Bismarck.Footnote 54 In addition, from the early nineteenth century onwards, Prussia, and later the German empire, had assumed a leading role in the anti-revolutionary camp among the European powers.Footnote 55 Similarly, during the nineteenth century, the liberal movement and its influence in Prussia and then in unified Germany were relatively weak compared to their counterparts in England, France, and the United States.Footnote 56
Moreover, Germany directly experienced the actions of the irregular French fighters (‘francs-tireurs’ or ‘free shooters’) during the Franco-Prussian War. This made Germany especially adamant, even more than other powers, in its refusal to apply the laws of war when fighting non-state or otherwise irregular forces.Footnote 57 Indeed, the trauma of that war deeply influenced German military culture, instilling in it the belief that conflicts with such forces were inherently total wars of annihilation.Footnote 58 Finally, Germany was a latecomer to the colonialist venture, which led to the rise of a popular sentiment, shared even by German international law experts, that ‘colonization was a natural part of Germany’s development into a leading European power’.Footnote 59 This colonial ambition, combined with rising German nationalism and racism, contributed to increasingly ruthless colonial policies in Africa, which culminated in the near-extermination of the Herero and Nama in 1904. These harsh policies further reinforced Berlin’s belief that international law, especially the laws of war, did not apply to non-European ‘barbarians’.Footnote 60 Accordingly, Germany entered the Boxer War with a quite firmly established stance opposed to applying the laws of war in this case. In addition, it was also generally more willing than other powers to unshackle its soldiers from the constraints of the laws of war, regardless of the specifics of the conflict, a tendency that would later become evident during the First World War.Footnote 61
The events prior to the anti-Boxer intervention only hardened the German standpoint. China participated in the 1899 Hague conference only in a very ‘inferior way’, wrote Georg Jellinek, a leading German jurist, ‘and under the prevailing circumstances, it [China] naturally has not ratified these conclusions. Therefore, China is not even formally obligated to the civilized world in this respect.’ In addition, according to Jellinek, China’s atrocities against civilians and POWs exposed its barbarous nature. The powers, he argued, should indeed behave towards the Chinese with a mere minimum standard of humanity, not because the Qing empire had any rights or protections under international law, but because doing so ‘keeps the nations, who feel themselves the upholders of civilization, from sullying themselves before the judgment of history’.Footnote 62
If Jellinek at least gave lip service to a discretionary-minimalist approach, the German emperor, William II, clearly saw the war as punitive and unrestrained, for example, when he called for Beijing to be erased from the face of the earth in retribution for the assassination of the German minister.Footnote 63 In an infamous farewell speech to his troops on 27 July 1900, after making the accusation that ‘the Chinese have overturned the law of nations’, he ordered his troops to avenge and punish the Chinese. The crucial passage of the speech reads as follows:
Should you encounter the enemy, he will be defeated! No quarter will be given! Prisoners will not be taken! Whoever falls into your hands is forfeited. Just as a thousand years ago the Huns under their King Attila made a name for themselves, one that even today makes them seem mighty in history and legend, may the name Germany be affirmed by you in such a way in China that no Chinese will ever again dare to look cross-eyed at a German.Footnote 64
Kaiser Wilhelm giving his ‘Huns Speech’, 27 July 1900.
Interestingly, despite the prevalence in Germany of the view that international law did not apply to rebellions or to wars against ‘uncivilized’ nations, the German authorities did not adopt an absolute non-application approach during the Boxer War. Instead, as reflected in the Kaiser’s speech, they inconsistently vacillated between the non-application and punishment approaches. The punitive aspect of the German legal stance is further evidenced by Germany’s participation in several trials of Boxers before multinational military tribunals, where German officers served as judges alongside officers from other allied armies. Both the very existence of these tribunals and the charges against the Boxer defendants were necessarily based on a premise that at least some customary international laws did indeed apply to their conduct.Footnote 65
Execution of a death sentence issued by an International Tribunal at Pao-Ting-Fu consisting of a German, a Briton, an Italian, and a French officer. Notice the officers’ uniforms, demonstrating that they came from different nations.
Note that the aforementioned paragraph of the Kaiser’s speech was omitted from the official transcript. This suggests that the Germans believed that their allies would not endorse such an unrestrained approach to warfare and would disapprove of Germany’s position. It also probably reflects some internal dissent within the German government regarding the pursuit of unrestrained warfare. Regardless, the German government’s attempt to suppress the circulation of the complete speech failed, as several reporters, including one from the international agency Reuters, had already obtained the full transcript.Footnote 66
Moreover, the content of the emperor’s address was passed by word of mouth among the German soldiers. Indeed, this speech deeply influenced the troops, especially their willingness to kill all Chinese captives. For the benefit of soldiers who did not read the speech, local commanders distributed William’s photograph engraved with the phrase ‘no quarter’. Soldiers even inscribed this message on their train carriages.Footnote 67 ‘The words of the emperor: “no quarter will be given” were a natural measure of self-defense’, related one German account. Another soldier wrote to his mother back home that the Chinese were ‘outside international law, no captives are taken and everyone is shot to death’. And indeed, German commanders commonly ordered the killing of all Chinese enemies, including wounded ones. Prisoners were seen as a burden.Footnote 68
‘German Marines burning Tsung-Il-Yamen’.
However, sometimes German commanders did decide to release Qing troops who surrendered, hoping that they would become ‘peaceful coolies’ or even mercenaries in one of the foreign contingents. Only during the later stages of the war, in the winter and spring of 1901, did the Germans begin to occasionally offer quarter to such prisoners and place them under guard.Footnote 69 That belated restraint was possibly an attempt to assuage the scathing criticism against the cruelty of the army expressed in the German Reichstag since November 1900, especially by Social Democrats but even by liberals and some conservatives.Footnote 70
To be sure, German military criminal legislation forbade wartime rape and mistreatment of civilians, but those prohibitions came automatically into force only in declared interstate wars. In contrast, their coming into effect in the context of an insurrection was subject to the commanders’ discretion. Thus, in the context of the Boxer War, the relevant laws were either not brought into force, or if brought into effect were not enforced against German soldiers.Footnote 71 Field Marshal Alfred Graf von Waldersee, the commander of the German contingent (and nominally of all allies) did issue an order to spare Chinese women and children, but his remark that Chinese should be ‘treated like dogs’ diluted the effectiveness of that order, leading to indiscriminate slaughter of women and children in many cases.Footnote 72 The Germans behaved with similar cruelty during the mop-up operations (stage four of the war) as well, detailed later in this article. No German soldier, as far as we know, was tried for crimes against the Chinese civilian population, except one Bavarian ensign punished for looting.Footnote 73 As one scholar noted, ‘the [German] soldiers ultimately operated in a zone of impunity’.Footnote 74
(Chinese) ‘coolies’ bringing (German) guns into position.
The position and conduct of Great Britain
Great Britain was also significantly influenced by the various nineteenth-century trends discussed earlier. As the dominant colonial power, it had a particular motivation—which grew over the century, as the power gap widened between the empire and the non-European rulers and nations it had subjugated—to reconceptualize such relationships as being internal to the empire (‘domestic’), rather than international. From a British legal perspective, such intra-empire conceptualization excluded applying international law to these relations.Footnote 75
The colonialist domestication project had an unintended side effect related to insurgencies: as it progressed, Britain increasingly perceived clashes with non-Europeans as domestic-internal conflicts. This perception is likely to have contributed to the growing overlap between laws governing insurgencies and those governing colonial ‘small wars’. Simultaneously, the laws relating to insurgencies had also independently undergone increasing domestication. In Britain, this process took on distinct characteristics, as contemporary ambitions to liberate soldiers from legal constraints in times of emergency clashed with a long-standing British aversion to martial law.Footnote 76
These conflicting motivations resulted in three markedly divergent legal perspectives on what laws should govern internal emergencies, such as insurrections. Unlike previous generations, proponents of each approach tended to assume that that the law of nations did not directly apply to these situations. They also commonly relied on the age-old common law axiom, ‘Martial Law is really … no law but that of necessity.’Footnote 77 Despite these two points of convergence, the contemporary debate on the three leading views on the matter was so intense that, as illustrated below, each viewpoint was embraced in different turn-of-the-century official British military sources, despite the armed forces’ striving towards uniformity.
One perspective, which most strongly embodied the English aversion to martial law, interpreted the aforementioned axiom as asserting that there was no legal doctrine of martial law within the English legal system. According to this view, each action taken by a soldier or commander during an internal emergency, for example while suppressing an insurrection, should be judged individually based on standard criminal law defences, such as necessity. The only exception to this would be if the legislature later passed an indemnity act that shielded relevant commanders and soldiers from criminal prosecution. The 1899 British Manual of Military Law, published one year prior to the outbreak of the Boxer War, clearly embraced that view.Footnote 78 The Manual’s premise that the laws of war did not apply to insurrections is further implicit in its definition of ‘war [a]s not a relation of man to man, but of State to State’.Footnote 79
A second perspective, quite opposite to the first, asserted that during an internal emergency, often referred to as a state of martial law, military commanders become unrestrained by any and all legal constraints and were entitled to act as they deemed necessary.Footnote 80 This perspective, which in practice adopted the non-application approach to insurrections, was endorsed (though without explicit use of the term ‘martial law’) in Major-General Sir C. E. Callwell’s significant manuscript, Small Wars, which was formally adopted by the Royal Army as a British military textbook, and whose second edition was published in 1899, a year before the Boxer War began. Accordingly, this military textbook even went so far as to maintain that in contrast to ‘regular campaigns’, in a war against an ‘insurrectionary movement’, and likewise against a ‘savage race’, intentional targeting of enemy civilians was permitted, ‘because [in such wars] beating of the hostile armies is not necessarily the main object … and … the operations are sometimes limited to committing havoc which the laws of regular warfare do not sanction’.Footnote 81
The third perspective on the martial law debate sought to both spare soldiers and commander the confusion inherent in the ‘case by case’ perspective, while limiting the permissiveness of atrocities implied by the ‘no restraints’ perspective. It did so by defining martial law as a legal framework distinct from English common law and derived from natural law. This framework provided commanders with the authority to respond to severe emergencies, such as insurrections, while also placing limits on their actions. Those limits presumably stemmed from the fundamental natural law principles of necessity, humanity, and justice. The laws of war, or at least their most basic tenets, often served as guidelines for the constraints required by these natural law norms.Footnote 82 In other words, this view held that a minimalist-discretionary approach applied to martial law situations, including insurrections. Contemporary support for this perspective was strong enough that the authors of the 1899 Manual of Military Law could not avoid acknowledging it, albeit in a footnote.Footnote 83 Moreover, despite being the only legal view among the three not embraced in any 1899 official military manual, it had been the one most commonly implemented during the Second Boer War—a conflict, deemed an insurrection by the British, which began shortly before the Boxer War.Footnote 84
Another moderating factor in British behaviour, partly linked to their aversion to martial law but also evident in their conduct during conflicts with non-Europeans, was the relatively strong influence of liberalism in British public discourse. For instance, domestic liberal criticism of British military conduct during the 1898 campaign against the Mahdist Revolt in Sudan led to increased governmental support for a minimalist-discretionary approach in colonial wars.Footnote 85 Similarly, the significant adoption of this approach during the Second Boer War was derived, at least in part, from liberal public pressure.Footnote 86 In the same vain, during the Boxer War, although the British adopted a relatively harsh stance both legally and in practice, they did not go as far as the Germans, possibly in part due to this liberal lobby.Footnote 87
In light of the inconsistency between different contemporary British military textbooks, as well as in actual British conduct in different late nineteenth and early twentieth century conflicts, it is difficult to determine with full certainty which legal approach was specifically embraced by the British armed forces in the Boxer War. Moreover, we located no formal policy paper, or other document, dating to this conflict that explicitly provides the answer. However, circumstantial evidence suggests that the British armed forces largely cleaved to a minimalist-discretionary approach. For instance, just a few years after the conflict, a committee of officers and legal experts was appointed by the British War Office to revise the chapter on the laws of war in the Manual of Military Law. This committee formally and explicitly adopted the minimalist-discretionary approach as the British position on the law applicable to wars against ‘uncivilized people’. Their legal text was first published as a separate military textbook in 1909Footnote 88 and then incorporated as the new laws of war chapter in the 1914 edition of the manual.Footnote 89
Most importantly, certain British documents from the Boxer War itself strongly suggest that the British practically embraced the minimalist-discretionary approach as their policy, and that General Alfred Gaselee, the commander of the British contingent, interpreted the concept of ‘minimal standards of humanity’ in a relatively broad manner. For example, he warned his troops that ‘the strictest discipline will be maintained within the force, and … any … ill-treatment of the inhabitants will be severely punished’.Footnote 90 Gaselee indeed tried to prevent depredations against Chinese civilians and promoted a policy of distinguishing between ‘peaceful villagers’ and Boxers.Footnote 91 In an oral government report to parliament, it was recounted that Gaselee had maintained that the troops were disciplined, ‘and their humanity has been unquestionable. Hardly any outrage has been committed, and in proof of this he has pointed to the very few instances of courts-martial or of summary awards of punishment.’Footnote 92 Both this vocabulary of the report, and its content (regarding British soldiers as constrained by certain core laws of war in this conflict) seem to indicate embrace of the minimalist-discretionary approach.
1900 print of British and Japanese troops engaging Boxers at Tianjin. Artist: Kasai Torajirō.
But the extent of the constraints embraced should not be exaggerated. Whenever the British saw a need, they were ready to employ extreme and sweeping violence against entire communities. During the first phase of the war, in the Battle of Tianjin, the British consul warned the inhabitants that if they did not surrender peacefully, ‘they will be shot, and their property destroyed’. Unfortunately, this threat was largely implemented during the occupation of the city.Footnote 93 In another case, a British commander held hostage half of the headmen of a Chinese village until they gave over suspects to the occupying troops.Footnote 94
1900 illustration of British soldiers burning a temple at Shanhaiguan. Artist: Amédée Forestier, in The Illustrated London News.
Evidence in British documents on the treatment of captives is scarce. The official policy, according to the 1899 Manual of Military Law, was that irregular troops, such as the Boxers, were ‘marauders’ who were not eligible for POW rights and that they should be punished for the mere act of engaging in illegal warfare.Footnote 95 Yet, scattered remarks suggest that the British often gave quarter (though certainly not full POW rights as per the Hague Regulations) to captive Boxers and Qing soldiers and employed them in manual labour for the army.Footnote 96
As might be expected, British soldiers on the ground often behaved more cruelly than the dictates of Gaselee’s official policy. For example, British soldiers participated in the sacking and subsequent mass killing perpetrated in the city of Tongzhou in the second phase of the war. Though Gaselee issued an order against looting, and even arrested some soldiers who looted from his own contingent, he and other British officers could not control their men in the narrow streets of the town. Many Chinese, including women and children, were killed when they tried to resist, or simply failed to flee the advancing British soldiers rapidly enough.Footnote 97
The position and behaviour of the United States
The United States adopted the expansive application approach as a legal framework in the Boxer War. This choice was partly born out of foreign policy concerns, to maintain ‘relations of friendship with the part of Chinese people and Chinese officials not concerned in outrages on Americans’.Footnote 98 However, this was also partly due to certain restraining characteristics of American legal and political culture. Admittedly, by the late nineteenth century, the United States had experienced, to some extent, most previously mentioned trends, including the decline in liberal influence, heightened fear of rebellions, renewed surge of colonial ambition, reduced respect for non-European nations (including specifically towards the Chinese), rising influence of statist-positivist jurisprudence at the expense of natural law jurisprudence, and increasing efforts to domesticate the legal basis both for regulating most states of emergency and for defining relationships with subjugated non-European nations (primarily Native American tribes).Footnote 99 Nevertheless, certain countering characteristics of American culture somewhat mitigated the impact of many of these trends.
For one, liberal public opinion in the United States had remained stronger than in Europe, including Britain.Footnote 100 The contemporary growing colonial-imperialist ambitions had clashed with a long-standing disdain for European interventionist approaches, often used to justify imperialist expansion. This tension led to an American desire to more thoroughly justify their interventions, imperialist initiatives, and the conduct thereof.Footnote 101
Caricature expressing the American self-perception of having purer intentions than other imperialist powers. ‘Too Many Shylocks’, Puck, 27 March 1901. Artist: John Pughe; Publisher: J. Ottmann Lith. Co.; Original copyright: Keppler and Schwarzmann.
The numerous ‘Indian wars’ that the United States had fought against Native American nations from its very birth up to 1924, profoundly influenced the American approach to the laws of war, particularly regarding their application in conflicts against non-European ‘uncivilized’ nations, and potentially also against other non-state forces. While American forces had committed numerous atrocities during those wars, the American legal stance was nevertheless relatively restrained. They adhered to the expansive-application (or adaptation) approach, considering many (though not all) laws of war applicable in such conflicts. Moreover, they believed they were authorized to try both American and Native American fighters for war crimes that violated those laws of war and occasionally conducted such trials. Additionally, American authorities even extended POW status to captured Native American fighters, except those who had violated the applicable laws of war. Due to the ‘stickiness’ of legal precedents, this legal policy remained consistent in the Indian wars even into the late nineteenth century and early twentieth centuries.Footnote 102
The American perspective also tended to apply the expansive-application approach to insurrections. This legal approach most likely developed under the influence of the American Revolution,Footnote 103 and was certainly followed during the American Civil War.Footnote 104 Accordingly, in August 1900, during the Boxer War, an US Naval War College publication by American international law expert George Grafton Wilson insisted that contemporary customary international law instructed ‘that the parties to … an insurrection shall observe, as far as possible, the rules of civilized warfare’.Footnote 105
Like Britain and Germany, the United States entered the Boxer War while already engaged in another colonial war, namely the Philippine Insurrection (1899–1902), an offshoot of the Spanish-American War (1898). Despite the contribution of that conflict to the contemporary American increase in colonialist-imperialist motivations, aversion of irregular fighters, and disrespect towards non-Western nations, all leading to several horrifying atrocities, the United States had embraced the expansive-application approach in that conflict as well.Footnote 106
Similar to domestic military legislations of many other countries, American military law codes generally applied to the country’s soldiers even abroad. Accordingly, and with the aim of protecting the local Chinese population, a General Order issued by the United States-China Expedition Headquarters, about two weeks into that operation (on July 29), instructed all American commanders to ensure their subordinates’ knowledge of certain specifically relevant articles of that legislation, while clarifying that: ‘in th[os]e articles[,] … clauses referring to citizens of the United States will be construed as referring with equal force to the citizens of China … [because] the honor of the United States and the good repute of its armed forces must be maintained unsullied’.Footnote 107 Although the contemporary American military law code was named (for historical reasons) ‘The Articles of War’, most of its articles actually applied also in peacetime, with just a few specific articles coming into force only during armed conflicts. While the American authorities possibly did not initially classify the operation in China as a war, they clearly came to do so within a short while (at the latest).Footnote 108 Accordingly, they deemed those wartime code articles as being in effect for American soldiers in China and that determination was subsequently also judicially affirmed. Drawing on legal precedents concerning the American Civil War, American judges strongly rejected the contemporary popular position that classified only declared interstate conflicts as legally constituting ‘wars’ and insisted instead that ‘war’ as a legal concept also referred to undeclared armed conflicts, including internal ones (i.e. insurrections) such as the Boxer War.Footnote 109
Shortly after the occupation of Beijing during the conflict, the Americans deemed General Orders No. 100, also known as the Lieber Code, to be applicable.Footnote 110 From their perspective, it applied both to the conduct of American soldiers and to Chinese fighters. This military legislation, authored by jurist Francis Lieber during the American Civil War and adopted by the Union Army, codified key customary laws of war. It distinguished between combatants and non-combatants, protected prisoners of war, the sick, and the wounded, and limited violent actions to those necessitated by military operations, although it still interpreted the laws of war to permit severe tactics, such as starving civilians in enemy territory through siege.Footnote 111 Most importantly, Article 152 of the Lieber Code stipulated that ‘humanity [could] induc[e]’ the application, either ‘partial[ly] or entire[ly]’, of ‘the rules of regular war [i.e. the laws of war] toward rebels’ such as American Confederates or the Boxers, though they could be tried after the war, unlike enemy state soldiers. While the article implied that a state had discretion to only partially apply the laws of war (and, thus, provided for possible embrace of the minimalist-discretionary approach), in practice, the Americans applied General Orders No. 100 fairly comprehensively, during both the Boxer War and the Philippine Insurrection, indicative of their contemporary embrace of the expansive-application approach.Footnote 112
In accordance with that approach, during the Boxer War, the War Department ordered General Adna Chaffee, the commander in chief of the American contingent, to show ‘absolute regard for the life and property of non-combatants’ and punish all Americans wrongdoers ‘sternly’ and ‘severely’. Chaffee gave his troops corresponding orders. On 24 November, for example, he reported that when obliterating a camp of ‘robbers’ (a term historically often used in reference to unlawful combatants), his men were able to save the women and the children. In August, American troops stopped French soldiers who were about to massacre a group of women and children in a village near Beijing.Footnote 113
Despite conflicting contemporary accounts, which may have self-servingly exaggerated or minimized American respect for the laws of war,Footnote 114 it can generally be assessed that Americans were also less likely to summarily execute captive Boxers and Qing soldiers compared to other allies, and often treated such detainees relatively decently. However, based on the limited available sources, it also appears that such captives were not typically afforded full POW rights by the Americans.Footnote 115 Initially, the American preference for detention over summary executions was justified by a legal rationale quite distinct from that advocated by contemporary proponents of unlimited war in China. This rationale was based on the initial non-classification of the engagement in China as a war, leading to an American conclusion that more legal constraints—rather than fewer—were applicable to the military in such scenarios. Later, once the Lieber Code was deemed to be in force, and thus the engagement was officially classified as a war by the Americans, this policy of humane treatment continued, but justified as being mandated under that Code.Footnote 116
And yet, high-minded rhetoric and enlightened formal policies cohabited with crimes of varying magnitudes. American troops sometimes did execute prisoners.Footnote 117 Also, regardless of their formal orders, American patrols in the countryside outside Beijing often ‘burned down houses on small provocations, shot recklessly at Chinese and attacked Qing army units without warning’, moving Chaffee to limit the dispatch of such patrols as much as he could.Footnote 118 Eventually, Chafee took steps to discipline his troops. From the beginning of the campaign to the end of the war, there were 271 courts martial against American soldiers for various criminal offences, 244 of which resulted in convictions. Not all cases, of course, were crimes against Chinese, but at least some of them were, including for assault, theft, robbery, forced labour, sexual assault and rape of locals.Footnote 119
American cavalry bringing in ‘Boxer’ prisoners near Tientsin.
For example, the Americans severely punished one of their own marines who was accused of rape and murder on 17 August 1900, while chaos still reigned in Beijing. The culprit, Private Stephen Dwyar, broke into a family owned opium den to rob silver ingots. After driving the husband to the street, he beat a small child with a stick and tossed him through the door—causing injuries that led to the child’s death a short time later. The president of the court admonished the other presiding officers that the case had to be swiftly dealt with ‘because an immediate example in this case was essential’. The tribunal convicted the marine for rape, and acquitted him of murder, but still discharged him with dishonour and sentenced him to life imprisonment with hard labour in Alcatraz.Footnote 120
Though all powers committed numerous atrocities, there is a widespread agreement that the American soldiers were more restrained than their counterparts from other contingents, at most places and most of the time, in contrast to the more brutal behaviour of the Russians and the French.Footnote 121 The British press, echoing local missionaries, even criticized General Chaffee for his leniency.Footnote 122 As a result of this relatively enlightened American policy, merchants in Beijing petitioned the Americans to remain in control of the city after the end of the war.Footnote 123 Many other Chinese, however, did not differentiate between the degrees of violence committed by their various conquerors, and saw all foreign soldiers, including the Americans, as equally evil.Footnote 124
The position and behaviour of the Russian empire
The prevailing legal perspective among influential contemporary Russian international law experts endorsed an expansive-application approach in the context of the Boxer War.Footnote 125 Certain factors most likely explain Russia’s adoption of a constrained approach, despite its autocratic monarchy and the influence of the aforementioned nineteenth-century trends. Like their peers from Britain and the United States, Russian international law experts too were influenced by liberal values. Also, in contemporary Russia, the impact of Social Darwinism was comparatively small, and natural law remained rather influential. Most importantly, Russia sought to prove itself to European counterparts who repeatedly questioned its level of civilization. The influence of such factors led the Russians to become international law pioneers in the late nineteenth century, as evident in the fact that they convened the peace conferences in both Brussels (1874) and The Hague (1899).Footnote 126 Nevertheless, these significant factors alone do not fully explain why Russia adopted the most constrained approach specifically in the Chinese context. This is particularly notable given that, among the same Russian experts, views persisted that deemed China uncivilized. Moreover, there was a prevailing endorsement of a non-application approach in other theatres, such as the Caucasus and Central Asia, where the adversaries were not considered sovereign states. Additionally, there was notable Russian scholarly support for generally applying the minimalist-discretionary approach in interactions with nations deemed uncivilized.Footnote 127
The endorsement of this specific, most expansive approach in the case of the Boxer War was, therefore, most likely due to Russia’s desire to maintain good relations with China, with which it shared a long border.Footnote 128 Sergey Witte, one of the Tsar’s senior ministers, feared that if the Qing dynasty were excessively weakened, the great powers would initiate a scramble for China in which Russia would inevitably emerge as the loser.Footnote 129 In a memorandum he wrote in the beginning of the war, in August 1900, Friedrich Martens, a contemporary international law luminary and an indispensable member of the Russian Foreign Ministry, noted that ‘for Russia, China is a great neighboring state that has every right to independent life’.Footnote 130 In short, Russia, by means of a policy of restrained-humanitarian application of the laws of war during the Boxer War, wished to simultaneously convey to its Western counterparts that it was one of them, and to the Chinese that it was not.
The Russian government went so far as to formally assert that the conflict was not a war with China but rather a campaign to assist the legitimate Chinese government in suppressing the Boxer rebels. However, the Russian Army rejected this ‘fiction’, as Vice-Admiral Yevgeny Alexeyev, commander of the South Manchurian region, described it, urging the government to acknowledge a state of war. His appeal, however, was overruled by Emperor Nicholas II.Footnote 131
Martens believed that protections for unarmed enemy civilians amounted to customary international law and were therefore binding, even though China was not party to the Hague Convention. Atrocities against civilians also ran contrary to natural law, Christian values, and military discipline. Indeed, both before and during the Boxer War, St Petersburg repeatedly ordered its troops to use deadly force only against Boxers and other armed enemies while sparing innocent Chinese civilians.Footnote 132 Here, too, reciprocal influence between allies was among the factors at play. The Russians took pride in their humanity and adherence to Christian values, vis-à-vis the senseless cruelty that they ascribed (justly) to the Germans and (less accurately) to the Japanese.Footnote 133
General Alexander von Kaulbars (centre) alongside other Russian officers in Manchuria during the Boxer War (1900).
The Russian high command ordered the troops to give quarter to prisoners, both Boxers and Qing troops. When captured, they should either be released or forcibly employed as ‘coolies’. In later stages of the campaign, Russian commanders also exiled certain captives into the depths of Russia, and recruited others as mercenaries. Many commanders obeyed these orders.Footnote 134 However, in many other cases, and especially during the expedition to occupy Beijing, Russian commanders violated such orders and executed captives outright. The Boxers were typically described as ‘rebels’, unworthy of mercy. They were also commonly associated with the Manchurian bandits (‘Red Beards’) whom the Russians saw as insurgents, ‘parasites’, and a ‘disease’ that must be eradicated.Footnote 135 Such terms labelled the Boxers as brigands, and thus as war criminals, and were used especially to emphasize the authority to summarily execute them as such when caught in the act.Footnote 136
Russian conduct towards civilians also often diverged from the lofty declarations of high officials. The case of the Russian Army in China shows, in fact, that there was sometimes little correlation between a country’s official stance and the behaviour of its troops, particularly when commanders did not make active and constant attempts to discipline them and slow down the brutalizing race to the bottom. Indeed, the repeated issuance of orders urging troops to protect Chinese civilians suggests that those orders were repeatedly violated.Footnote 137
Best documented of these violations was the opening shot of the Russian occupation of Manchuria, a violent ethnic cleansing on the Russian side of the Amur, in Blagoveshchensk. In response to supposed Boxer attack on infrastructure around the town, Russian forces rounded up about 3,500–4,000 local ethnic Han, Manchu, and Dar, many of whom were Russian rather than Qing subjects, and in the course of doing so, some Russian troops (mainly, local militia recruits and Amur Cossacks) began killing the civilians, eventually massacring around 3,000–3,500 men, women, and children, shooting them, hacking them with axes, or drowning them in the river. The troops carried out this pogrom on the orders of mid-level officers, and a prevalent justification for it, by such commanders and perpetrators, was that among the Chinese that attacked the town there were many bandits, Boxers, and other armed civilians. This massacre was stopped by the commanding general only after three days. Urged by the high command in St Petersburg, local authorities later investigated the massacre. But the key culprits received only small administrative punishments, merely a slap on the wrist. Footnote 138
Russian soldiers tying up a local Blagoveshchensk Chinaman, presumably preparing to kill him (1900).
While subsequently the Russians did not commit a massacre on a similar scale, their formal legal approach continued to contrast with a much crueller attitude on the ground. First and foremost, following direct orders of the emperor and the war minister, Russian troops expelled Chinese from some border regions and razed their settlements. This action was further accompanied by the killing of thousands of civilians.Footnote 139 In Tongzhou, a town near Beijing, Russian troops committed numerous acts of rape, arson, and murder, acquiring a terrible reputation among both the Chinese and the other contingents.Footnote 140
During the war’s second phase, as the storming of Beijing unfolded, a critical moment arose when Russian diplomats and military leaders were considering strategies to wind down the Boxer War and secure the cooperation of the Qing dynasty towards this end. These strategies emphasized the importance of restrained conduct. Despite these deliberations aimed at moderation, Russian forces, together with their French counterparts, carried out a widespread massacre in northern Beijing. This brutal act was ostensibly in retaliation for the siege of the Beitang Cathedral, marking a stark contrast between the intended diplomatic posture and the vengeful attitude of soldiers actually in the field. For those Russian soldiers, wrote British Naval Commander Roger Keyes, ‘every Chinaman within miles of the cathedral was treated as a Boxer … and the slaughter of men, women and children in retaliation was revolting’.Footnote 141
On orders from St Petersburg, Russian commanders repeatedly launched investigations against delinquent troops, but such proceedings were often reluctant and half-hearted. General Subotić, for example, explained both looting and burning of villages as ‘a force of nature’, nothing but a natural outcome of war’s inherent savagery. Nevertheless, due to the insistence of higher authorities, some rapists and murderers in the Russian Army did receive severe punishments, and some were even hanged. Unlike the Germans and similarly to the Americans, Russian authorities clearly undertook sincere, if inconsistent and all too often ineffective, efforts to punish transgressors.Footnote 142 This ineffectiveness, however, is best explained as stemming not from official policy and intentions at the top, nor from the deliberate rejection of moderate policies by military officers, but rather from a generally rigid and ineffective chain of command, which struggled to control a relatively undisciplined body of troops without the aid of authoritative and professional non-commissioned officers (NCOs).Footnote 143
The legal position and behaviour of the Japanese empire
The Japanese had to find their own legal voice within this cacophonous concert. As newcomers with a relatively clean slate concerning international law, they could have chosen between the expansive application policy of the Americans and the Russians, the minimalistic-discretionary approach of the British, or the punitive doctrine of the Germans. In practice, they adopted the lenient American and Russian approach towards civilians, combined with the merciless German approach to captured enemy fighters.
Japan, just like Russia, cared deeply about the Western gaze (i.e. the views held by Westerners on its level of ‘civilization’). It had already faced the challenge stemming from this critical gaze in the Sino-Japanese War of 1894–1895, but now it had to chart unfamiliar waters. In 1900, for the first time, the foreign powers were not only onlookers and competitors but also Japan’s allies. All powers were suspicious and weary not only of the Chinese but also of one another, lest one country sought to pressure the Chinese for more concessions at the expense of its allies. Japan, particularly, looked askance at Russia, while the Russians stubbornly refused to accept Japanese command in joint operations. Four years later, this rivalry led both countries into the Russo-Japanese War. Footnote 144
Indeed, Japanese field commanders asked their troops on several occasions to display bravery and professional soldierly behaviour in order not to compromise Japan’s reputation in the eyes of their foreign partners.Footnote 145 These concerns, emphasized by the commanders in the field, trickled down to the soldiers. Letters from the front show that they took pride in the honour they brought to Japan in the eyes of allied troops.Footnote 146 Unsurprisingly, adhering to the international laws of war was part of the civilizational package. Could Japan showcase that it was better and more civilized than the Western powers by upholding international law commitments and treating unarmed Chinese civilians better than they did?
Ariga Nagao, the major international law instructor at the military and naval academies (and the legal adviser to the Japanese delegation at the 1899 Hague Conference), expressed the views of the military leadership when he argued that whether one saw the Boxer War as a conventional war, international intervention, or even a punitive campaign (as the German emperor did) all armies were still bound by the basic principles of international law. Above all, they were enjoined to never harm peaceful civilians, rape women, loot private property, or force enemy subjects to fight against their own country.Footnote 147 In other words, he tacitly adopted the expansive application approach towards civilians, without formally committing Japan to that specific position within the legal debate.
Japanese print ‘Taking pride in the collaboration between Japan and its allies’, showing Japanese commander, Major General Fukushima, standing alongside allied commanders, as their troops attack Tianjin. Artist: Ishimatsu Nakajima.
The government adopted Ariga’s legal approach. On 19 June, General Fukushima Yasumasa, the commander in chief of the Japanese contingent, instructed his officers that international law strictly forbade the killing of ‘enemy wounded who can no longer fight, the sick, women, children and suchlike people’. ‘Whoever violates these rules commits a barbarous act, unworthy of a civilized country’s army … I hope you will pay strong attention not to let such barbarous behavior spread [among the troops].’ Importantly, Fukushima did not distinguish clearly between civilians and soldiers, as the Boxers were all male civilians, but between those who actively fought and those who did not. There was also no mention of captives as such and of enemy troops who surrendered, only of enemies who could no longer fight because they were wounded.Footnote 148
As with other contingents, Japanese behaviour on the ground was mixed. To ensure decent treatment of women and children, Fukushima stressed that as there were not sufficient military policemen, each officer and NCO should do his best to ensure strict discipline.Footnote 149 Léon Silbermann, a French soldier, noted that Japanese troops were disciplined to begin with and only rarely punished by their commanders. But when justified, the punishments were heavy and meted out without mercy.Footnote 150 After the war, Fukushima himself took pride in the fact that while the troops of the other countries, especially Indian-British soldiers and the Chinese mercenaries in British employ, plundered, killed, and raped women following the fall of Tianjin in July, the Japanese not only maintained perfect discipline but also worked hard to protect the Chinese civilians, an observation shared by some Japanese diplomats as well. Fukushima reported that he was able to convince the assembled commanders to appoint soldiers to protect the civilians of Tianjin, with Russian support.Footnote 151 The Japanese Red Cross treated Chinese ‘peaceful civilians’ in Tianjin (and later in Beijing) with great kindness and on an equal footing with Japanese and Western soldiers, charity that ‘strengthened the trust of the local Chinese in the Japanese Army’.Footnote 152 British Naval Commander Keyes testified that the Japanese behaved in a very disciplined manner towards Chinese women, though he ascribed this not to superior morality, but to the their commanders having supplied their troops with ‘regimental wives’ (i.e. prostitutes), housing them in special installations in occupied towns. These were, in fact, private prostitution ventures that operated with the army’s passive support: a continuation of the licensed prostitution system in Japan, which eventually developed into the ‘comfort women’ practice of the Second World War.Footnote 153
But the usual dynamics of wartime brutalization remained in play. Cavalry Sergeant Fujimura Shuntarō confessed that initially he felt pity when he saw dead Chinese, but as his friends began to fall in battle his positive feelings transformed into hatred. Another veteran, Fukuda Eiji, later recalled how he and his troops laughed when they saw a wounded old woman trying to walk in a ruined, burned village.Footnote 154 And yet, the orders from above to treat civilians decently made a difference, especially because direct commanders (i.e. mid-level officers and NCOs) were successfully enlisted in the effort to enforce the higher echelons’ policy of restraint. Fujimura testified that during a raid on a village near Tianjin, his company commander yelled to the troops that ‘it’s forbidden to kill women and children’. A few moments later, Fujimura stopped one of his soldiers from stabbing a woman. ‘Didn’t you hear the company commander?’ he rebuked his comrade, ‘it’s forbidden to kill women and children!’Footnote 155 In the Japanese Army, soldiers had to obey all orders they received from superiors, even when in variance with standing laws, rules, and regulations. Therefore, the behaviour of junior officers and NCOs, who could verbally command the troops, influenced the treatment of civilians far more than the appeals of high commanders such as Fukushima, in contrast with the dilution of official Russian policy in its passing down the chain of command.Footnote 156 We also know that from 5 September 1900, the Japanese authorities established a court martial system to punish their soldiers who transgressed against Chinese civilians, but we were not able to find further details on these proceedings.Footnote 157
Japanese execution of a suspected Boxer.
Unlike their treatment of women, children, and the elderly, the Japanese regarded most of their combatant captives, particularly the Boxers, as evil beings to be killed without hesitation. The high command never issued formal guidelines on the treatment of captives, at least as far as we have been able to establish, but it was clear to everyone in the field that they did not enjoy POW rights. Japanese writers of all ranks and diplomats on the ground universally referred to the Boxers as ‘bandits’ (hito, 匪徒), a familiar term in the Sino-Japanese sphere traditionally used to describe rebels who deserved no quarter. When Japanese actors used this word, or the equivalent terms bōto (violent gangs), danhi (bandit gangs), or dōhi (local bandits), they viewed their campaign in terms drawn from the Sino-Japanese tradition of rebel suppression (such as ‘suppression and punishment of bandits’, danhi tōbatsu). It is worthy of remark that such traditional notions were often mixed with Western parlance. In contemporary international law, ‘bandits’ was also a term used to describe unlawful combatants, who were considered war criminals for their unauthorized participation in the fighting and could often be summarily executed upon capture. To give a clearer example, Japanese accounts condemned the Boxers as both ‘insurgents’ and ‘enemies of humanity’ (jindō no teki). The latter term was borrowed from Western legal tradition, where it indicated a criminal who could be tried by anyone, regardless of jurisdiction, and could even be executed without trial if caught red-handed.Footnote 158
Fujimura emphasizes in retrospect that unlike in the First Sino-Japanese War and Russo-Japanese War, no enemy captives were sent to Japan during the Boxer War. They were usually ‘disposed of’ (i.e. killed) on the spot. Fujimura had once ‘tried his sword’ on a ‘robust’ Boxer captive, killing him sadistically with several blows. That was the same Fujimura who personally prevented a soldier from killing a Chinese woman.Footnote 159 Keyes also testified that the Japanese gave no quarter, and in one case, near Dagu, British soldiers had to prevent them from killing wounded enemies on the battlefield.Footnote 160 However, there were also cases when Japanese soldiers detained Qing soldiers without killing them and even released captive Boxers, especially if they surrendered without resistance.Footnote 161 Accordingly, Japanese and Western sources quote information that came from the questioning of captives. Although the Japanese consul general in Tianjin took note of enemies taken prisoner, it is not completely clear whether they were Boxers or Qing soldiers.Footnote 162 Gordon Casserly relates that the Japanese employed their prisoners as ‘coolies’ and paid them ‘liberally’.Footnote 163
Band of ‘coolies’ under the Japanese at Tientsin (1901). Publisher: Underwood and Underwood.
The policy of executing most captive Boxers adversely affected civilian non-combatants, of course. The distinction between Boxers, who deserved nothing but death, and peaceful civilians, was quite difficult to ascertain accurately. Women and children were certainly in the latter, safer category, while young men were always suspected. Boxers commonly stripped their distinctive garb when facing capture, making most male civilians suspicious by definition.Footnote 164 As Fujimura made clear, anyone defined as a suspect Boxer could be killed on the spot.Footnote 165
After the war, the Japanese commanders praised their troops fulsomely, certain that they satisfied foreign onlookers and even shamed them, in light of the abject behaviour of European soldiers. ‘The praises on the strict discipline and the total absence of criminality in the [Japanese] Army had added another layer to the Divine Land’s [Japan’s] prestige,’ wrote Fukushima to Prime Minister Yamagata.Footnote 166 The reality on the ground, as we have seen, was somewhat more nuanced.
Brutality as a joint venture
Finally, it is important to note that some of the more extreme cruelties during the Boxer War were committed by mixed gangs of soldiers from various nationalities. The British officer Bertram Lenoux Simpson described in his memoirs how a group of French and their Vietnamese colonial soldiers, along with both Indian and Russian troops, forcibly broke into a pawn shop and lynched the owners who dared to resist.Footnote 167 A. H. S. Landor describes a blood-chilling execution of a prisoner by American, French and Japanese troops. Being presented with a bound Chinese, suspected of being a ‘Boxer spy’, an American officer told the soldiers to ‘take him away and do with him what you please’. When the Americans began beating the poor man, a French soldier who passed by shot him, and then Japanese soldiers stampeded on his face. The officer did not interfere. The importance of the event lies in the mixed character of the perpetrating group. Vice-Admiral Alexeyev, too, ruefully noted that his Russian soldiers were badly influenced by the cruelty of comrades from other contingents. When soldiers of different contingents mixed and fought together, joint cruelty towards the Chinese became a hobby and a common denominator. This, too, was a race to the bottom.Footnote 168
German and Japanese soldiers jointly witnessing the execution of a Boxer (1900).
Particularly horrifying examples of such cruelty abounded in the various ‘punitive expeditions’ and ‘mopping up operations’ in which all contingents took part, except the Americans who did so only rarely.Footnote 169 Both British and Japanese burned entire villages if firearms were found even in one house, or in order to deny cover to the enemy.Footnote 170
Sometimes, however, brutality by soldiers from certain contingents was resisted by officers from other nations. On April 1901, for example, a Chinese girl was raped by a mixed band of French and American soldiers, and was later rescued by a Russian officer who threatened them with his gun and insisted on their arrest. General Chaffee pressed for conviction, but the US Army Advocate General released them due to suspicion of mistaken identity, as the crime was perpetrated in a dark night and the victim, as well as other Chinese eyewitnesses, could not recognize the faces of the American assailants.Footnote 171
Conclusion
It is appropriate to conclude this article with the question we began with: how did legal positions of governments and high commands, in this case during the Boxer War, influence their soldiers’ behaviour towards civilians, captives, and wounded enemy combatants?
In his model on the influence of the international laws of war, Morrow maintains that when adversaries are interested in limiting warfare, international conventions may serve as useful guides to align expectations of reciprocal behaviour.Footnote 172 In this study of the Boxer War, we have shown that behaviour towards protected groups may be influenced, at least in part, not only by reciprocity between enemies, but also by two main additional factors. One is the cultural and historical ‘baggage’ with which a belligerent arrives to a specific conflict.Footnote 173 The second factor is its relations with allies, including the element of competition between them. In occupied Beijing, for instance, the Germans grew envious of gifts of gratitude bestowed by Chinese merchants upon the Americans and demanded similar recognition. The Chinese, however, responded that the Germans would first need to improve conditions in their sector.Footnote 174
For Japanese war leaders, intervening on behalf of Chinese civilians was also appealing, as Japan was fighting alongside its primary rival, Russia. The Japanese, both high commanders and common soldiers, tended to despise their Russian rival-allies, seeing them as brutes and cowards at the same time.Footnote 175 Thus, it was satisfactory for them to prove, from their perspective, through decent behaviour, that the Japanese were more civilized than the Russians who had an enlightened policy in theory, but less so in practice. When choosing between the minimal-discretionary approach of Great Britain and the expansive application approach of the United States, it was attractive for the Japanese to choose expansive application, because that seemed to be the direction in which ‘civilization’ was heading. Why pick second-best?
The view of the Japanese commanders that their country had to be ‘more civilized’ than other powers, especially Russia, filtered down to the troops and restrained their behaviour. The memoirs of the soldier Fukuda Eiji are an interesting case in point. Deeply contemptuous of the Chinese and not free of cruelty himself, Fukuda used all possible rhetorical devices to decry Russian ruthlessness. When he describes the Japanese and Russian zones of occupation in Beijing, he muses that the Japanese and Russian flags—flying on opposite sides of the street—were dichotomous, one representing culture and the other barbarism, ‘like the Mediterranean Sea is the boundary between Europe and Africa’.Footnote 176 It seems, in any case, that Fukuda’s main motive to treat the Chinese a little bit less roughly was to beat the Russians in the race for civilization. In such cases, the interaction between the soldiers incentivized a race to the top.
But in the case of captives, other forces were at play that drove the Japanese in the opposite direction. The designation of the Boxers as ‘brigands’ [hitō] in all orders and official documents, made a connection between them and a deeply ingrained concept in Japanese military culture, suggesting to the soldiers that the Boxers were beyond the pale of all laws. The practical meaning was unrestrained killing of enemy prisoners. As it was difficult to differentiate between Boxers and peaceful civilians, young men—suspected to be Boxers—could expect the worst from the Japanese soldiers when they were at high-tide moments such as pitched battles in village streets or mopping up operations. Women, children, and the elderly, not suspected of being Boxers, could expect relatively better treatment from the Japanese most of the time, though there were some who were beaten by soldiers.Footnote 177
We also conclude that the ramifications of a formal legal position are dependent not only on the level of disciplinary control within the ranks, but also on the particulars of hierarchies and power dynamics, formal and informal. In tandem with the finding of the ICRC study by Terry et al., our account demonstrates that in the Japanese case, active interference of junior commanders was of paramount importance in protecting enemy civilians.Footnote 178 The scene described by Fujimura, of an officer shouting at soldiers during a raid that they should not harm women and children, and Fujimura’s own stern warning to a soldier who was about to kill a woman, are very telling in this respect. The same Fujimura, one should remember, sadistically executed a Boxer captive, because that was a brutality that commanders allowed. Japanese commanders could improve their troops’ behaviour during dangerous moments, because Japanese soldiers were by and large disciplined, especially if they received oral orders from their immediate commanders.
Similarly, Russian military leaders issued repeated orders to respect international law and protect Chinese civilians. However, these directives were less effective due to the lower level of discipline among Russian soldiers, particularly in regard to the treatment of enemy civilians and captives.Footnote 179 The case of German soldiers offers a contrast. Despite a discipline level comparable to the Japanese, the Germans committed many more atrocities. This discrepancy was not due to a lack of control but stemmed from their commanders’ view of international law as non-binding in the situation. This perspective, combined with a punitive ideology and the broad discretion afforded to local officers, allowed junior commanders to order the destruction of entire villages. In comparison, American troops, like the Japanese, were disciplined and positively influenced by their commanders. Such discipline, reinforced by clear and consistent leadership, promoted greater adherence to international laws and enhanced the protection of non-combatants.
To conclude, in more disciplined military forces, the legal framework of a nation plays a crucial role: higher-level interventions can significantly shape the grassroots dynamics of brutalization, with both positive outcomes (the Americans and the Japanese) and negative ones (the Germans). Terry et al. posited that, by contrast, within less disciplined forces (like the Russians during the Boxer War), the formal legal stance of a country holds comparatively less sway. Instead, external influences on the troops become more pivotal.Footnote 180 While the analysis of Terry et al. highlighted the significance of community norms, it seems to us that a paramount external factor that must not be ignored is the reciprocal dynamics inherent in warfare. In such less disciplined forces, interactions between soldiers and the civilian population are often dictated by personal whims, the influence of brutalization, and the usual ebbs and flows, and high and low tides of war.
Acknowledgements
The authors are deeply grateful to Peter Holquist, Ines Eben von Racknitz, Samuel Moyn, Sherman Lai, James Morrow, Xinghan Ma, and Jonathan Boxman for their generous help and advice.
Funding statement
Israel Science Foundation.
Competing interests
The authors declare none.
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