Wiping the slate clean… for now: Amnesty in early-modern peace treaties
By: Randall Lesaffer
Most common among the clauses in early-modern peace treaties are so-called amnesty clauses. In the vast majority of the peace treaties from the era, one of the first articles stipulated that all violence, injury, and damage which had been done by the one side against the other during the war would be forgotten. The Peace Treaty of Rijswijk of 20 September 1697 (21 CTS 409) between the French and British monarchies offers a typical example of such a clause. In Article 3, it is stated that
(…) all offences, injuries, damages, which the said King of Great Britain and his subjects, or the said most Christian King and his subjects, have suffered from each other during this war, shall be forgotten; so that neither, on account of them, or for any other cause or pretence, neither party, or the subjects of either, shall hereafter do, cause, or suffer to be done, any hostility, enmity, molestation or hindrance to the other, by himself or others, secretly or openly, directly or indirectly, by colour of right, or way of fact.
Amnesty clauses like this one had multiple, far-reaching legal consequences. Firstly, they covered all wartime hostile actions between members of the two opposing sides, whether legal or illegal. Although the amnesty should logically be restricted to hostile actions which were consequential to the war, in general peace treaty clauses extended amnesties to all wartime actions. Secondly, under the clause the signatory parties – in this case the kings of Britain and France – waived their right to take any action, in law of otherwise, to seek retribution or compensation for any damage done to them, their subjects, and their adherents by the former enemy. Thirdly, and most importantly, the clauses annulled the right of the treaty parties’ subjects to seek retribution or claim compensation for any damage suffered during the war. By accepting such a clause, princes and governments one-sidedly disposed, normally without offering any form of compensation, of the rights of their subjects.
Amnesty clauses started to appear with some regularity in peace treaties since the 12th century. Before the 17th century, a wide variety of terms was used to indicate the ‘forgetting and forgiving’. During the 15th century, the Latin terms ‘remittere’ and ‘absolvere’ were most frequently used. By the second half of the 16th century, the words ‘oblivisci’ or ‘oblivio’ – ‘to forget’ or ‘forgetfulness’ – became almost standard. After and probably under the influence of Westphalia (Treaty of Münster of 30 January 1648, Art. 3, 1 CTS 1; Treaty of Osnabrück of 24 October 1648, Art. 2, 1 CTS 119), the term ‘amnestia’ – which is derived from the Greek ‘ἀμνηστία’, forgetfulness – more generally appeared, frequently next to ‘oblivio’. But neither the evolution of terminology nor the diversity in phrasing made any difference to the essential implications of amnesty clauses.
Over the 18th century, amnesty clauses were standardised and hence became shorter. Around the turn of the 19th century, they became rarer and were absent from an increasing number of peace treaties. But this did not signal the end of their significance. To the contrary, by then, it was widely accepted in doctrine, as Hugo Grotius (1583–1645) and Emer de Vattel (1714–1767) had already affirmed, that amnesty was automatically implied in the conception of peace.
Amnesty touched upon the very core of the early-modern jus post bellum or law of peace-making, which was increasingly premised on the principle of state sovereignty. The early-modern conception of peace was founded on the idea that all belligerents had fought a ‘legal war’. Doctrine demanded that for a war to be such, belligerents had to be sovereign – or otherwise needed to have the authority to resort to war – and they needed to have declared the war. Under the doctrine of legal war, all sides enjoyed the right to wage war. Thus, their actions were covered by the jus in bello, the laws of war. With the amnesty clause, the belligerents at the end of the war recognised that their former enemies had enjoyed an equal right to wage war as they had and that the enemy’s hostile actions were covered and condoned by the laws of war as much as their own.
But the amnesty clause went one step further. Amnesty not only implied a recognition of the equality of both sides under the jus ad bellum, but it also erased the consequences of any violations of the jus in bello. Under the doctrine of ‘legal war’, all belligerents equally benefited from the allowances and restrictions of the laws of war. This implied that they were liable for the damage which they caused through their violations of these restrictions. The amnesty clauses, however, cut through these distinctions, and also offered post-war immunity for breaching the laws of war. It would have been highly unpractical to act otherwise among sovereigns. Although it was possible, as sometimes happened for specific cases, to refer such issues to mixed commissions or tribunals – parallel to what happened with maritime prize disputes before prize courts –, it was generally felt that pursuit of this sort of remedy had too much potential to revive the conflict and endanger the peace.
The doctrine of legal war and amnesty clauses stood in dynamic tension with the doctrine of just war. Under that doctrine, one had a right to resort to war only in retribution for an injury committed by the enemy. Just war was discriminatory in that it opposed a just side to an unjust side. In a consequential reading of the doctrine, only the just side thus had a right to wage war and benefit from the protection of the laws of war. Only the just side could legally conquer, loot, and take prisoners.
Both doctrines, those of just and legal war, were the product of late-medieval scholarship. Whereas the doctrine of legal war was introduced by Roman lawyers, just war was the concern of theologians and canon lawyers. Both doctrines were recycled and elaborated by the writers of the law of nations from the 16th to 19th centuries, and stood side by side as the two foundational pillars on which the early-modern laws of war and peace rested. This, at first sight, is surprising as they seem contradictory and mutually exclusive. But to the writers and practitioners of the law of nations of Early-Modern Europe, this caused little problem as both conceptions of war applied at different levels. Whereas legal war formed part of the positive law of nations, just war was part of the natural law of nations. This meant that the latter only applied in conscience, and thus, to the Christian believer, was of significance for the fate of one’s eternal soul. The justice or injustice of a war would thus weigh on the conscience of the belligerents and determine divine judgment on their soul; the legality of war stipulated the legal consequences of one’s actions in the relations between belligerents and neutrals in the present moment.
The dualism which characterised the learned writings on the laws of war and peace of the Early-Modern Age matched a similar duplicity in reality. The discourse of the justice of war was not only a concern of theologians and canon lawyers; it was also a matter of significance to princes and their subjects when they resorted to war. Broadly speaking, the language of just war dominated the war propaganda of the period. This related not only to political pamphlets, but also to legal documents such as formal declarations of war. For most European wars from the Late Middle Ages to the early 20th century, it can be said that all sides claimed a right to resort to war with reference to a discourse which derived from the just war doctrine.
The inclusion of an amnesty clause in the ensuing peace treaty thus, at first sight, constituted a volte-face. But this was not the case, because just and legal war operated side by side as much in the practice of war as in scholarly writings. Although early-modern princes and governments generally claimed to wage a just war and thus – at least implicitly – accused their enemy of fighting an unjust war, they did not attach any practical consequences to this. The laws of war were reciprocally applied to all sides without any discrimination with respect to the justice of the war. The amnesty clause was the logical complement of this practice of non-discrimination during wartime.
This left, nevertheless, a duplicity in place between the discourse used to declare and justify war and its pursuance and conclusion. Thereto, scholars had a ready explanation that was as old as the dual notions of just and legal war themselves and was deeply embedded in the common conscience of learned Europe. It legitimised the existence of the conception of ‘legal war’ from the impossibility for fallible human beings to discern who among different sovereign princes had right on his side and was indeed waging a just war. In many cases, where justice was not manifestly on one side, only God could be the judge among sovereigns, and that judgment would have to be deferred to the end of times. In the meantime, human beings would have to act as if both sides were in the right and would have to wage war and make peace without discrimination. Amnesty formed the expression of that deferment of judgment. But it only extended to the here and the now. For the Christian princes of Early-Modern Europe, it contained no promise that God would forget and forgive.
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