Nazi Germany and later Japan deliberately ignored the idea of the Hague Convention. In Germany’s case, it was not for logistical reasons. The Hague Convention did not set any requirements regarding the time that had to elapse between the declaration of war and the start of military action. The Germans could therefore have notified the Polish Foreign Ministry of the outbreak of war shortly before the aggression, which would in no way have diminished the benefits of surprise.
Hitler ignored the Hague Convention because it symbolized the order that the Führer sought to destroy. It is therefore not surprising that World War II further reinforced the common belief that declaring war is a characteristic of civilized societies that care about justice.
Spear Throwing. How the Romans Started Wars
The Roman procedure for declaring war, together with the procedure for concluding interstate agreements, constituted the so-called special law (ius fetiale). The name comes from the ancient priestly college of twenty fetiales, the foundation of which was most often attributed by the Romans themselves to the legendary Numa Pompilius, the second king of Rome, successor to Romulus. The fetiales participated both in the transition of the Roman state from peace to war, by declaring it, and in the transition from war to peace, by participating in the conclusion of treaties.
The appearance of the archaic procedure for declaring war was told to us by the historian Titus Livius, writing at the turn of the era, in his monumental work “The History of Rome from the Foundation of the City”. His first step was to demand compensation from the enemy. One of the fecials, with his head covered with a woolen cloth, went to the borders of the enemy territory and there, summoning the borders and Jupiter as witnesses, demanded from the opposing side compensation for the damage that (as he claimed) the Roman state had suffered. Then he called Jupiter, saying: “If I am demanding this unjustly, do not let me set foot on my native land.”
He repeated the same formula several times, heading to the enemy city, where he pronounced it for the last time, giving 33 days to meet the Roman demands. After that date, if his demands were not met, he would address the gods for the last time: “Hear, Jupiter, and you, Janus Quirinus! Hear, all you gods of heaven, earth, and under the earth! I call you to witness that this people is unjust and refuses to do what is right.”
Then he returned to Rome and reported the matter to the authorities: initially to the king, and after the establishment of the republic – to the Senate. If it was considered right to start a war, it was declared appropriately. The fecial returned to the border of the enemy country with an iron-tipped spear (according to another version: charred by fire and bloodied) and in the presence of three witnesses threw it into enemy territory. From that moment, in the eyes of the Romans, a state of war began, regardless of whether military action was taken immediately or not.
Keeping up appearances. The “lofty” goals of the Romans
The first declaration of war according to the fecial procedure occurred during the reign of the fourth king of Rome, Ancus Marcius (according to tradition, he reigned in the years 642–617 BC), and was used against the Latins neighboring Rome, who were carrying out plundering expeditions into Roman territory. In historical times, the procedure of declaring war preceded by a demand for reparations is clearly attested in the first half of the 2nd century BC, but in the 3rd century BC the fecials were replaced in the declaration of war by the legates of the Senate. Due to the wars fought against adversaries increasingly distant from Rome, the ritual of throwing a spear into enemy territory also changed. According to later tradition, the change occurred in 280 BC, when, in view of the war with Pyrrhus, king of Epirus, a captive from Epirock was ordered to buy the land near the temple of Bellona, and it was there, as if he were in enemy territory, that the priest threw his spear, thus fulfilling the ritual obligation.
The procedure of declaring war experienced its revival at the beginning of the reign of Emperor Augustus. Preparing for war with Mark Antony, he intensively sought propaganda means to present the real civil war as a war against an external enemy. Therefore, declaring his opponent not Antony himself, but his lover, the unfortunate Egyptian queen Cleopatra, Augustus organized a political nativity scene in Rome, in which he, as a member of the college of faculties, played the main role. During the solemn procession of the entire Senate, in front of a crowd of citizens, he threw a spear into the aforementioned area near the temple of Bellona, thus declaring war… on Egypt.
The last case of a ritual declaration of war that we hear of occurred in the year 178. During the expedition against the Germans, Emperor Marcus Aurelius once again resorted to this ancient rite, throwing a spear into the territory of the Quadi. It is possible that, in addition to evoking the ancient triumphs of Roman arms, the emperor and philosopher wanted to symbolically mark the civilizational superiority of the Romans over the barbarians.
The Roman procedures described above had no analogues in the ancient world. This is most clearly seen if we compare them with the practices of the world of the Greek city-states, from which the Romans inherited many other cultural achievements. For the Greeks, war was not an abstract state that arose as a result of someone’s decision, but always a real state: the conflict between two Greek cities began with the physical violation of the border of one of them by the troops of the other and the beginning of the plundering of the opponent’s fields. Even if there were cases of ultimatums, a formal declaration of war was not part of the Greek custom of war. Modern jurists were therefore right to regard the ancient Romans as the inventors of the declaration of war. The question is whether they were right in attributing to the Romans the lofty goals they had in mind.
History is written by the victors. How the Romans built an empire
In writing their history, the Romans claimed that they had conquered the known world, guided by principles that in modern science are called defensive imperialism: surrounded by aggressive and infidel neighbors, the Romans from time to time demanded from them formal compensation for the wrongs they had suffered, and only when they refused to make amends did they declare war on them. As a result, they conquered them one by one, as if by punishment, until they finally controlled the entire Mediterranean basin.
Until recently, a surprising number of historians were able to believe this intellectual construction, just as they were able to believe other creations of Roman propaganda, which used the term “Punic/Greek loyalty” as a synonym for perfidy. Today we realize that the Carthaginians and Greeks could learn a lot from the Romans when it came to not fulfilling their commitments. In fact, not only did the Roman procedures for starting a war have nothing to do with the search for justice, but, on the contrary, they were part of the precise mechanism that fueled Roman imperialism, which between the 4th and 2nd centuries BC drove the Romans from one war to another, so that over the course of 300 years we can count on one hand the years of peace.
The essence of the ultimatum procedure and the declaration of war is revealed to us by the greatest Roman orator, Marcus Tullius Cicero. Reflecting on what kind of war is just (bellum iustum) in his treatise “On Duties”, he states that a just war is identical to a war that begins after a demand for compensation and after a prior declaration. Cicero’s reflections show that for the Romans of his time, the concept of justice in war referred to purely formal issues: if I follow the procedures, I have the right to wage war, regardless of what the issue is. The demand for compensation before declaring war was not an attempt to avoid armed conflict, but an escape from negotiation on controversial issues. At first, the Romans refused to listen to the arguments of the other side, which could only agree to the Roman dictum or face war. The Romans rejected common compromise, which means they rejected diplomacy and the institution of arbitration (both well known to the ancient Greeks).
All cases of reparation demands that we know of were in fact excessive demands (e.g., giving up important territory or giving the Romans their own leaders), the fulfillment of which led to the subjugation of the opponent. To limit myself to one example, in 274 BC the Romans demanded that the inhabitants of the Etruscan city of Caere submit to them and hand over half their territory.
By closing the door to negotiations, the fecial procedure also provided the Romans with extraordinary psychological comfort in waging war. When the priest returned to Rome safely – after invoking the wrath of Jupiter if his demands were unjust – he was clear proof that the gods, acting as judges between the Romans and their opponents, accepted the Roman argument. The successes of subsequent wars confirmed this. It is no coincidence that the abandonment of the rituals of declaring war in the second century BC coincides with the moment when the Romans no longer needed any justification for their conquests, because there was no longer any independent international public opinion: the entire civilized world accepted the Roman dictate as a state of affairs so natural that it no longer required any justification.
Paradoxically, the procedure today associated with the civilization of war served to build the world’s first empire resulting from the constant plundering of neighboring lands.
