The Herzegovina uprising and international law, 1874-1878
12 juni 2025 | John Laughland
Speech given in Trebinje, Bosnia and Herzegovina, at an international conference to mark the 150th anniversary of the beginning of the ‘Eastern crisis’
11 June 2025
The Herzegovina uprising of 1875 occurred at a time of rapid development in what I call modern international law - what people today call international humanitarian law. By modern international law I mean the slew of international conventions and treaties which started to be signed in 1864 with the first Geneva Conventions and whose goal was to subject states to an overarching supranational legal order. I am convinced that this 19th century globalism was a cause of the 20th century’s world wars just as today’s globalism has also pushed us into war in the 21st.
The first Geneva Conventions were followed in 1868 by the St Petersburg Declaration concerning explosive projectiles and the 1874 Brussels Peace conference. The Brussels Peace Conference is important because its provisions, although not adopted at the time, were adopted a quarter of a century later, at The Hague Peace conferences of 1899 and 1907.
These various conventions tried to codify the laws of war, or rather to subject war to law. They dealt with what kinds of weapons might be prohibited, the rights and duties of occupying powers, the protection of civilians, and so on.
In this same period, in 1873, the Institut de droit international was founded in Ghent. This body provided a platform for an elite of progressive but establishment statesmen and academics to create new universal international law. Its president, the Belgian politician Gustave Rolin-Jaecquemyns, specifically said that international law would henceforth not come from treaties, as in the past, but instead from the conscience of mankind “as displayed by the collective opinion of enlightened men” (1).
The Eastern crisis culminated in the 1878 Congress of Berlin which, for several commentators on international law (2), marks the moment when humanitarian intervention became enshrined as a principle of international law. This is essentially because Article 62 of the Treaty of Berlin imposed a number of humanitarian obligations on the Ottoman empire concerning the treatment of its Christian subjects. Berlin also marks the beginning of the concept of shared sovereignty, or of the end of sovereignty, because Bosnia-Herzegovina was placed under Austrian administration while theoretically remaining within the Ottoman empire.
According to these men, especially those who contributed to the Institut du droit international’s Revue de droit international et de legislation comparée, the concept of ‘humanity’ was key in the new international law they were trying to forge. That is why it is called ‘international humanitarian law’. Their goal was to civilise the world – ‘the gentle civilizer of nations’ to quote the title of a noted scholarly work on this (3).
One instrument of this civilisation was the new international law; the other was imperialism. Or rather, these two instruments were the same, or at least two sides of the same coin. King Leopold II of Belgium said in his speech to the Geographical Conference on Africa on 12 September 1876,
“Opening to civilisation the only part of the globe where it has not yet penetrated, breaking through the darkness which envelops whole populations, that is, I dare to say, a crusade worthy of this century of progress.”
In other words, the move towards ‘international law’ was also a move towards a world dominated by Great Powers. Imperialists thought they were bringing law to lawless (anarchical) societies and civilisation to uncivilised nations; international lawyers thought they were bringing law into the anarchical society of international relations and propagating the practices of civilised states (4).
One of the key initiators of the concept of ‘humanity’ as the basis of international law was the Baltic-Russian diplomat and scholar, Friedrich Martens. He claimed that the whole of Russian policy in the Balkans in this period (‘the Eastern question’) was based on humanitarianism, not national interest (5). Martens is known in international law for having introduced the catch-all ‘Martens clause’ into the conclusions of the 1899 Hague Peace Conference which says that ‘the laws of humanity’ should fill any gaps in international agreements.
However, it was not just Great Powers who invoked civilisation and humanity as a principle of foreign policy. Prince Milan I Obrenovic of Serbia, in his proclamation dated 20 June 1876, announced that he was taking up arms against the Ottomans in the name of humanity and to protect civilisation (6).
The debates at the Brussels Conference of 1874 highlighted the difficulties associated with the notion of humanity and civilisation as criteria of international law. Those debates turned largely on the role of civilians and the associated question of irregular militia – a key element of the Herzegovina uprising but one which the jurists generally did not discuss when it broke out. Two visions of warfare confronted each other at Brussels – one the one hand, Great Powers, especially Germany, wanted to treat irregular militia as criminal; on the other, smaller powers including states like Belgium and Switzerland insisted that civilians had to be able to play a role, for instance in the case of an invasion, and also because not all states could afford standing armies (7).
The issue of civilian militia – franc-tireurs – was in everyone’s mind because Germany had treated French franc-tireurs with extreme and deliberate brutality during the Franco-Prussian war of 1871. Terror was deployed precisely as an instrument of extreme dissuasion (8). More generally, the Germans did not agree that war should be limited by law, but instead that it should be as terrible as possible in order to make it short. Francis Lieber, the German-American author of a code of the laws of war in 1863, also believed that an overwhelming show of force was necessary in wartime in order to restore order, especially in the context of civil war.
At first sight, it might seem obvious that civilians should not be military targets. Moreover, it might also seem obvious that if war is to be subjugated to law, those waging war (soldiers) must be subject to a line of command. The very notion of subjecting war to law implies that there must be organised structures – armies - with the possibility of control over subordinates, as a precondition for the very existence of lawfulness. Irregular militia were, from this point of view, even worse in the eyes of ‘modern’ international law than before.
The emphatic rejection of the irregular fighter was therefore accentuated in the atmosphere of reasonableness and progress which inspired these developments. The irregularity of civilian militia meant that not only could they be targeted but also they did not deserve the protection afforded to regular (lawful) soldiers. To put it simply, they could be summarily executed after capture.
Jurists converged on the idea that, to qualify as belligerents, militia needed to be under the control of the authorities of the state – i.e. to be under a clear chain of command, and to be able to prove it with a certificate – and that they should wear some sort of recognisable uniform or distinctive sign. In other words, international lawyers accepted irregular forces only as part of an established army. They could not accept the idea of a genuinely spontaneous civilian militia, precisely because they were trying to formulate laws of war. They rejected the notion of levée en masse except perhaps in the case of a native population defending itself against an invader.
These ideas were eventually incorporated into the Brussels Declaration as Article 9 (Although the Declaration was never ratified, it is quoted by the International Committee of the Red Cross as part of IHL.) Irregular militia had to be under a line of command, they had to wear a distinctive emblem to distinguish them from civilians, they had to carry arms openly and they had to obey the laws and customs of war. A draft of this article, submitted by a British lawyer, added that militia not respecting these conditions should be dealt with judicially - but this phrase was removed from the final version (9). In other words, the great and the good lawyers at Brussels effectively approved summary execution of irregulars.
Article 10 of the Brussels Declaration did recognise levées en masse – spontaneous uprisings of citizens to repel an invading army – as belligerents. However, this specifically applied to “a territory which has not been occupied”. Citizens lost the right of resistance once their territory was occupied. Once again, this perhaps surprising conclusion derives inevitably from the view that, if the laws of war are to be observed and enforced, there must be structured armies in place, not irregular bands of citizens. The Germans, following Francis Lieber’s code of 1863, argued that populations should not be encouraged to rise against occupying forces because that would lead to severe reprisals and therefore to an increase in the horrors of war (10). The Draft of the Brussels Declaration even legalised reprisals by trying to limit them.
All this, of course, is relevant to the Herzegovina uprising. If there ever was an emblematic citizens’ army, this was it. History and literature are full of accounts of citizen fighters. From William Tell and Andreas Hofer to the events in Yugoslavia in the Second World War to celebrities like Fidel Castro and Che Guevara, such figures are generally remembered as heroes. Their heroism lies precisely in their exceptionalism, not in their legality. They are out of the ordinary and do not obey the rules – that is what makes them brilliant. Their lawlessness is their strength; partisan forces exploit the regularity, impersonality and rigidity of structured armies as a weakness.
As Carl Schmitt understood (11), the partisan is the supreme expression of the political nature of warfare famously identified by Clausewitz. A partisan might be brutally repressed by the existing authorities, or by the army he is fighting, as a common bandit (‘terrorist’) but, whatever military tactics he uses, he is not a common bandit but on the contrary a highly political fighter.
It is remarkable that the period between 1874 (the Brussels Conference) and 1878 (the Congress of Berlin) is characterised by a movement in international law theory towards an even greater role for Great Powers and organised armies, consolidated by the decisions taken at Berlin which also increased their role. The progressive liberals who pushed for the subjection of war to law could not take the notion of the partisan or civilian militia on board. Ultimately these men were anti-political. They wanted to reduce the role of politics and bring that eminently political activity, war, under the impersonal control of the law.
One of the leading lights of the Institut de droit international, the German jurist August von Bulmerincq, wrote in 1877,
“Where law penetrates and advances, politics must withdraw. Law, the guardian of civilisation, must always win over, just as darkness must flee the light. Whoever loses faith in the final triumph of law no longer believes in the triumph of civilisation (12).”
Today as then, the “rule of law” is abused to impose fashionable elite thinking, often against elected governments or popular will.
This rejection of politics, this desire for politics to be replaced by law, is the very essence of liberalism and of the related 19th century school of positivism. But that international lawyers, men who claimed to be mapping out a new system of international relations, could not see that revolution – the rising up of peoples against existing political structures – was the hallmark of their century, is very striking. This blind spot, coming after the French Revolution; the events of 1830 and 1848; Karl Marx’s call for the arming of the proletariat in 1850 (13); the American Civil War (1861-1865) which might also be called a revolution, albeit one which failed (14); the unification of Italy (1861-1870) under Garibaldi, who had learned guerrilla warfare in Brazil and whose volunteers helped the Herzegovina Serbs (15) - all of which movements were revolutionary because they sought to change the fundamental legal structures in place – throws into sharp relief the futility of the whole project of trying to subject that supremely political act, war, to the say-so of lawyers.
In other words, just as the Herzegovina uprising led to the Austrian mandate over Bosnia-Herzegovina, to the 1908 annexation, to the 1914 assassination and therefore to the First World War, so the movement of academic international law at that time (whose authors, by the way, commented on the Eastern crisis extensively in their Revue) was a movement away from doctrines of revolution, national liberation and freedom and towards an ever more monolithic and impersonal conception of war waged on the battlefield between states. “The darkling plain,” on which “ignorant armies clash by night,” of which Matthew Arnold had his premonition in his poem On Dover Beach, published in 1867, is surely a premonition of the First World War, that supremely impersonal and institutionalised conflict.
Notes:
1. Gustave ROLIN-JAEQUEMYNS, De l’étude de la législation comparée et de droit international, Revue de droit international et de législation comparée, Tome I, 1869, p. 228. « Les documents communément indiqués comme sources du droit international puisent eux-mêmes leur force obligatoire dans une source commune, qui est la conscience du genre humain, manifestée par l’opinion collective des hommes éclairés. Mais cette conscience n’est pas stationnaire; elle est éminemment progressive. »
2. For instance Antoine ROUGIER, La théorie de l’intervention d’humanité, Extrait de la Revue générale de droit international public, (Paris: Pedone, 1910), p. 12. « Le traité de Berlin du 13 juillet 1878 vient imposer à la Porte un contrôle permanent du concert européen sur tous ces actes d’administration intérieure. Il consacre juridiquement le droit d’intervention des gouvernements signataires toutes les fois qu’il s’agit de garantir un minimum de droits aux habitants de la Turquie d’Europe et notamment d’assurer la liberté religieuse (art 62). Du fait de ce traité, l’intervention d’humanité devient une base du droit public spécial qui régit les rapports de l’Europe et de la Porte.»
3. Martti KOSKENNIEMI, The Gentle Civilizer of Nations, The Rise and Fall of International Law (Cambridge University Press, 2004)
4. F von MARTENS, Völkerrecht. Das internationale Recht der civilisierten Nationen (trans. Bergbohm, 1883).
5. F de MARTENS, Étude historique sur la politique russe dans la question d’Orient, Revue de droit international et de législation comparée, 1877
6. Johann Caspar BLUNTSCHLI, Le Congrès de Berlin et sa portée au point de vue du droit international, Revue de droit international et de législation comparée, 1880, p.285.
7. Dowdeswell, Tracey Leigh. "The Brussels Peace Conference of 1874 and the Modern Laws of Belligerent Qualification." Osgoode Hall Law Journal 54.3 (2017) : 805-850.
8. Dowdeswell, op. cit., p. 809, footnotes 21-24
9. Dowdeswell, pp. 830-831.
10. Dowdeswell, p. 833
11. Carl SCHMITT, Theorie des Partisanen, Eine Zwischenbemerkung zum Begriff des Politischen (1962)
12. August VON BULMERINCQ, La politique et le droit dans le vie des Etats, Revue de droit international, Tome IX, 1877. « Là où le droit pénètre et avance, il faut que la politique recule … Il faut que le droit, gardien de la civilisation, finisse toujours par l’emporter de plus en plus, comme il faut toujours que les ténèbres finissent par fuir devant la lumière. Celui qui perd la foi dans le triomphe croissant et final du droit, ne croit plus au triomphe de la civilisation. »
13. Karl MARX and Friedrich ENGELS, Address to the Central Committee of the Communist League, London 1850. ‘The workers must be armed and organized. The whole proletariat must be armed at once with muskets, rifles, cannon and ammunition, and the revival of the old-style citizens’ militia, directed against the workers, must be opposed. Where the formation of this militia cannot be prevented, the workers must try to organize themselves independently as a proletarian guard, with elected leaders and with their own elected general staff; they must try to place themselves not under the orders of the state authority but of the revolutionary local councils set up by the workers. Where the workers are employed by the state, they must arm and organize themselves into special corps with elected leaders, or as a part of the proletarian guard. Under no pretext should arms and ammunition be surrendered; any attempt to disarm the workers must be frustrated, by force if necessary.’
14. Professor Adam Smith, The American Civil War as a Conservative Revolution, Inaugural lecture of the Edward Osborn Professor of US Politics and History, University of Oxford, 25 April 2022.
15. Eric R. TERZUOLO, The Garibaldini in the Balkans, International History Review February 1982, Vol. 4, No. 1 pp. 111-126.
