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Customs of War

Soldiers know that you never use an umbrella while in uniform, and they know that you do not fire upon a white flag. Today these precepts are written into such varied codes as international law and military regulations, but long before such codification took place, soldiers followed these and many other unwritten rules, based upon their understanding of the “customs of war.”

It is generally known that today's Laws of War—the body of international law that attempts to regulate the conduct of warfare—are the products of a series of international conferences beginning with one held in Geneva in 1863. What is less commonly understood is that these conferences did not start with blank slates. To a considerable degree, these conferences regularized long-standing European customs that guided the conduct of war. What is even less well understood is that not only did these traditions regulate actions between armies during war, covering such areas as the declarations of war, truces, and surrenders, they also covered conduct within armies, such as military discipline and the conduct of courts-martial. Even today, these customs continue to affect the organization and operation of modern armies.

The Disciplines of War

Shakespeare's Captain Fluellen knew the “disciplines of war,” which to him meant subjects as diverse as the proper construction of a mine under the walls of Harfleur (Henry V, III, ii), and the knowledge that to kill the boys who were staying with the baggage was against “the law of arms” (Henry V, IV, vii). These literary references show that by Shakespeare's time (late 16th to early 17th centuries) a common, transnational understanding had arisen, both of how military tasks were to be performed and of how wars were to be conducted. The key concept here is transnational.

The military world of 16th- and 17th-century Europe was an international one. Soldiers, who moved freely about Europe in search of employment, carried military techniques and customs around Europe as well. Over time, a common understanding developed of many features of military life, from the large to the small. These customary usages arose for two important and interrelated reasons: first, as neither detailed manuals explaining how every conceivable military task was to be accomplished were available nor huge military bureaucracies in place to direct every aspect of military life, the “customs, usages, and disciplines of war” supplied European armies much of what was lacking. They were, in effect, early modern military Europe's standard operating procedures. Second, as the European military world was transnational, the panEuropean nature of the “disciplines of war” enabled soldiers to move from army to army and fit in with a minimum of confusion. In short, like most other occupations in the early modern world, armies operated more on a customarily established corpus of knowledge than on written directives.

The Customs of War

By the time that large armies began operating in North America in the mid-18th century, these customs of war were well established and understood. In effect, they acted as a body of international military common law, whose provisions could be binding. Most European armies eventually wrote some of these customs into formal military law, known in the Anglo–American tradition as the Articles of War or, more correctly, The Rules and Articles for the Better Government of His Majesty's Forces, or the Rules and Articles for the Better Government of the Troops—the first an act of Parliament, and the second an act of the Continental Congress. The Articles of War of both the British Army and the Continental Army contained several references to the “Disciplines of War,” for example: “Whoever shall make known the Watch Word [password] to any Person who is not intitled to receive it, according to the rules and Disciplines of War … shall suffer Death, or such other Punishment as shall be inflicted upon him by a General Court Martial.” (British Articles of War, sec. XIV, art. XV; American Articles of War, sec. XIII, art. 15) Even more remarkably, both also required officers sitting on courts-martial to swear that they would: “duly administer Justice … if any doubt shall arise, which is not explained by the said articles, … according to my Conscience, the best of my Understanding, and the Customs of War in the like Cases” (British Articles of War, sec. XV, art. VII; American Articles of War, sec. XIV, art. 3). In short, the Articles of War clearly recognized the existence of customary practices that were widely understood and, under some circumstances, had the force of law. British and Hessian officers commonly sat on each others' courts-martial, a fact that makes clear the international nature of the customs and disciplines of war and strongly suggests that they were probably more important than statute law in the practical regulation of mid-18th-century armies.

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