Moral and legal prohibitions against pillage in the context of the 1899 Hague Convention and the South African War

I. The Hague Convention of 1899 in historical context

The Hague Peace Conference of 1899 was much criticized by contemporary observers. Public scepticism was encouraged by a press which was deliberately kept at arms’ length by the Conference’s organizers. ¹ Most thought the convention was about disarmament, but even before the delegates met, it was clear that serious discussion of disarmament was not going to be on the table. Only the first of The Hague Convention’s three commissions took up the issue of disarmament and its officers and members were more interested in limiting emerging and future technologies than existing ones. The delegates discussed specific tactics such as hurling objects from balloons and unleashing asphyxiating gasses onto the battlefield, but they too often got bogged down in the details. For example, when the delegates, hoping to build on work begun at the St Petersburg Convention of 1868, took up the question of prohibiting more powerful explosives, Captain William Crozier, a delegate from the United States, immediately challenged the definition of ‘powerful’. The Commission could not generate consensus, and the end result was agreement that each state could pursue whatever it deemed acceptable. ²

During the disarmament discussions, British delegates found themselves at odds with the majority more than once. ³ Dutch delegates raised moral qualms about the British-made dumdum, an expanding bullet which did not easily pass through the body, but instead slowed on impact and created a much larger wound. Major General John Ardagh, a British delegate and the Director of Military Intelligence at the Horse Guards, whose department would later be faulted for poor preparation during the South African War, argued that the dumdum was a necessary tool employed in India and elsewhere against ‘savage populations’. Ardagh insisted that ‘barbarians’ do not ‘play by the rules of the game’. ⁴ He added, ‘Before you have the time to explain to him that he is in flagrant opposition to the decisions of the Conference of The Hague he cuts off your head’. ⁵ The other delegates were not swayed by Ardagh’s position and Arthur Raffalovich, a Russian delegate, even denounced Ardagh’s distinction between civilized and savage for he felt it went against the spirit of a peace conference to withhold basic rights from some. The British were outvoted 20–2: only the United States supported their position. ⁶

The immediate impact of The Hague Peace Conference is difficult to measure, but it led to later peace conferences, including a second meeting at The Hague in 1907, precisely because of the success it had in bringing so many parties together to discuss pressing political and military issues. Although disarmament talks produced little value, the commissions which dealt with the laws and customs of war and arbitration were much more successful, and it is the former with which this article is most concerned.

The peace conference has its origins in Tsar Nicholas II’s rescript or circular of 24 August 1898, although the exact motivations of the recently crowned, thirty-year-old sovereign are unclear. Arthur Eyffinger, in The 1899 Hague Peace Conference: ‘The Parliament of Man, The Federation of the World’, published during the conference’s centennial, emphasizes that external pressures along Russia’s extensive borders were great at the time. Expansion into Asia and maintenance of order over increasingly restless Poles, Finns, and other minorities in Europe were costly projects. European powers were competing over an ever-expanding range of new military technologies, and Russia was ill-equipped to engage in an arms race. Yet, Eyffinger also suggests that most of the Tsar’s leading advisors, including the Count Mouravieff, Finance Minister Sergei Witte, and War Minister Alexei Kuropatkin, had personal, rather than political or humanitarian, reasons for supporting a peace conference in which Russia played a leading role. ⁷ Most European leaders doubted Nicholas was committed to serious reform but dared not refuse a request from one of Europe’s Great Powers. Ardagh, for his part, believed in the noble sentiment of the Tsar. Five years on, he found it quite ironic that Nicholas provoked war with Japan. ⁸

There may have been more to Nicholas’s motives than wanting to enhance his international reputation or masking his oppressive policies by selling himself as a reformer. Peter Van den Dungen has argued that the industrialist and banker turned military prognosticator Jean de Bloch influenced the Tsar’s decision-making. ⁹ Bloch, most famous for his six-volume work, The Future of War, published earlier in 1898, caught the Tsar’s attention when he first began publishing parts of the work a few years earlier. The Tsar even personally intervened when censors held up its publication. ¹⁰ The two met several times to discuss his theories including his prediction that the next war would break down into a futile struggle of attrition, leaving in its wake the destruction of the world economy and the erosion of all social organization. Van den Dungen claims that leading peace activists like the British journalist W.T. Stead and the Austrian Baroness Bertha von Suttner, who a few years later won the first Nobel Peace Prize, believed that Bloch had a major influence on the Tsar’s decision to initiate the conference. ¹¹

Whatever Nicholas’s true motives, other world leaders had at least to appear receptive to the rescript or face exclusion from the conference and a possible media and popular backlash. After a brief delay caused by a war scare stirred up by Russian expansion in East Asia, Count Mouravieff, at Nicholas’s request, sent out a second rescript on 11 January 1899. Whereas the first circular rather vaguely invoked the maintenance of general peace and the reduction of armaments to help promote national culture and economic progress, the second listed eight specific subjects to be discussed at the conference. These included general references to disarmament and limitation of specific existing and new technologies, issues concerning naval warfare, a desire to build upon the laws and customs of war generated by the Brussels Conference of 1874, and the need to create a means of arbitration to help prevent future conflicts. ¹²

European powers took the second rescript more seriously than the first. Many leaders were pleased that arbitration was going to be discussed. Some states were relieved that the Russians removed from the agenda any discussion of grand politics which could threaten the standing of the Great Powers in international relations. However, there were still many details to be worked out, including the location of the conference, its organization, whether it was to be open or closed to the press and public, and whether minutes were to be taken or anything was to be officially published at the conference’s end. Of these, the most sensitive issue for organizers to settle before the peace conference could take place was which states should be invited to attend and which should be excluded.

According to William Isaac Hull, in 1899, there were 59 states which claimed sovereign status; of those, 26 attended the conference. ¹³ Mouravieff and Willem Hendrik de Beaufort, the Dutch Minister of Foreign Affairs, created the invitation list. In general, all states which had some regular diplomatic representation in St Petersburg were invited, but there were exceptions. The largest group of states omitted from the invitation list were the Latin American republics. In fact, only two states from the Americas were represented, the United States and Mexico, although four were invited. China, Japan, Persia, and Siam were Asia’s only representatives; European leaders did not yet recognize the independence of most of Asia. In all, twenty of the twenty-six states who sent delegates came from the European continent. Monaco, San Marino, and the Holy See were excluded. The exclusion of Bulgaria was done to pacify the Ottoman Empire, as the inclusion of Luxembourg was made to satisfy the hosts, the Netherlands. ¹⁴

In 1899, European powers ruled most of Africa as colonies, so it is not surprising that Africa received no representation at the peace conference. However, the political status of the South African Republic (Transvaal) and the Orange Free State was more ambiguous. Suzerainty was the term that British officials mostly employed, refusing to recognize that the South African Republic, limited by the London Convention of 1884, had any right to determine its own course of foreign policy. ¹⁵ British lawmakers had to reach even further back, and were even on shakier legal ground, to justify why the Orange Free State’s foreign policy had to defer to British national and imperial interests. Great Britain had recognized the independence of the Orange Free State at the Bloemfontein Convention of 1854 but had been backsliding on its stance since the discovery of diamonds near Kimberley and its decision to establish a protectorate over Basutoland. ¹⁶ When in 1896 the South African Republic wanted to belatedly sign the Geneva Convention of 1864, Joseph Chamberlain, the British Colonial Secretary, claimed that the London Convention had limited its right to do so; that without British consent it could only sign treaties with the Orange Free State. ¹⁷ Thus, although officials offered no explanation for excluding the two Boer Republics, the rationale for the decision seems clear. The organizers feared that Great Britain would have refused to attend, possibly derailing the entire conference.

European states did recognize the two Boer republics to varying degrees. The Dutch were particularly sympathetic to the plight of the Boers and Count Mouravieff had given signs that Russia would welcome them at a conference. ¹⁸ Germany, through the Kaiser’s infamous telegram to the President of the South African Republic, Paul Kruger, had, at least in the eyes of the British, threatened to challenge the political status quo by sparking debates over its sovereign status. Dr W.J. Leyds, the former State Secretary of the South African Republic, had recently taken up the post of Envoy Extraordinary and Minister Plenipotentiary in Europe. He sought better relations with the European community as tensions between and Boer and Briton grew in 1899. However, when the issue of an invitation was raised between the Dutch and the Russians, Leyds was back in South Africa and De Beaufort did not trust Leyds’s deputy to discuss the issue. ¹⁹

It seems highly likely that Great Britain was not even consulted over the decision to exclude the Boer republics from the conference, probably because conference organizers assumed its political leaders would object. There was certainly popular support in the Netherlands to invite the Boer Republics and, as the host country, the Dutch representatives at the conference had some influence over the invitation list. But de Beaufort would not press the matter. Effyinger reports that de Beaufort discussed the issue with the Germans, who considered inviting the Boers only if it were certain that the Boers would reject the invitation. This ploy would allow Germany to save face with the Boers without jeopardizing Britain’s participation in the conference. Bernhard von Bülow, Germany’s Secretary of State for Foreign Affairs, ultimately scuttled the plan fearing that it would not produce the desired results and could potentially alienate both the British and the Boers. ²⁰ When the South African Republic officially notified de Beaufort that it wanted an invitation, de Beaufort shifted responsibility onto the Russians. ²¹

The British government would have rejected an invitation to an international conference where they would be on equal political footing with representatives from the South African Republic and the Orange Free State. ²² In the summer of 1899, Anglo–Boer relations reached a low point. The six-day Bloemfontein Conference, which brought together Kruger and Sir Alfred Milner, the British High Commissioner in South Africa and Governor of the Cape Colony, produced nothing of value and its failure seemed to make conflict inevitable. Suzerainty may not have directly soured relations, but it did provide Great Britain with a quasi-legal justification for asserting dominance in South Africa and for rallying British popular support for an impending war. The British press, largely in support of Great Britain flexing its imperial might, even if the result was war with the Boers, stressed the issue through the summer. The Times summed it up:

The [suzerain] position of the British Empire in South Africa is the keystone of our policy in that part of the world. [It is] the guarantee of the future peace in South Africa. It is the force on which we rely to fuse the two races throughout the states and colonies into one people with British sympathies and a British civilization. To renounce it or acquiesce silently in claims inconsistent with it, would be to fail in an Imperial duty we owe our colonists as we owe ourselves. ²³

In preparation for The Hague Convention, Sir John Ardagh drew up a memorandum which stated his views on his government’s general strategic and military policies. The memorandum was sent to the head of the War Office, Lord Lansdowne, who forwarded it to Salisbury. Both ministers endorsed the memo as a basis for discussion at The Hague. ²⁴ First and foremost, Great Britain planned to block any attempts to reduce armaments or limit military budgets. ²⁵ Ardagh believed that the defence of the empire and the preservation of its integrity was essential to the well-being of Great Britain. Any hint of disarmament could challenge British stability and prosperity. Ardagh even tried to argue that technological advancement in weaponry actually led to more humanitarian conflict by shortening wars and limiting suffering. ²⁶ Daniel Hucker argues that British delegates purposely focused on arbitration to move the conference away from the subject of disarmament. ²⁷

With the conference’s shift away from a call for general disarmament and the exclusion of the Boer Republics, Salisbury, hopeful that something good would come out of it, committed his government to participating in the peace conference. Sir Julian Paunceforte, a well-respected career diplomat, led the delegation which included Great Britain’s minister at The Hague, Sir Henry Howard, Admiral Sir John Fisher, and two military representatives, Lt Col Charles Á Court and Ardagh. ²⁸ The inclusion of three military men in such a small delegation was a clear sign that Great Britain would not commit itself to any agreement which did not make sound military and naval sense. The interests of Great Britain and the empire had to be preserved at all costs and the cool realism of Fisher, Á Court, and Ardagh could serve as a counterweight to Paunceforte and Howard, who although not necessarily idealists, might not have understood Britain’s military and naval needs nor some of the technical details which might arise during discussion at The Hague. ²⁹

II. The Hague Convention of 1899 and the prohibition of pillage

The Hague Conference held ten plenary sessions between 18 May and 29 July. By 23 May, the delegates had agreed to set up three commissions to discuss arms limitations, humanitarian reforms, and arbitration, respectively. Each of the three commissions held their own meetings and, when necessary, sub-committees met as well. The Second Commission recognized that despite the efforts of The Hague Peace Conference war at times would erupt. Therefore, it worked diligently to revise the laws and customs of war and embraced the spirit of the Brussels Conference, as noted above, to limit ‘their severity as far as possible’. ³⁰ It produced a brief statement of its work, Convention with Respect to the Laws and Customs of War on Land, and a much longer and detailed annex, Regulations Respecting the Laws and Customs of War on Land, and an appendix. The Convention was signed by delegates of twenty-four countries at The Hague on 29 July 1899.

Containing a short introduction and five articles, the Convention is essentially a prelude to the annex. Regulations Respecting the Laws and Customs of War on Land (The Hague Regulations) contains four sections: On Belligerents, On Hostilities, On Military Authority over Hostile Territory, and On the Internment of Belligerents, and the Care of the Wounded in Neutral Countries. In all, the agreement is made up of sixty articles.

The Hague Regulations expressly prohibit pillage. Article 23 reads, ‘it is especially prohibited . . . to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war’. Article 28 states, ‘The pillage of a town or place, even when taken by assault, is prohibited’ and Section III, Article 46 states, ‘Private property cannot be confiscated’. And Article 47 reads, ‘Pillage is formally prohibited’. ³¹ The implication is that pillage is the deliberate, non-consensual taking of personal property from enemy combatants or civilians in the context of war for private or personal use.

Thus, The Hague Convention sets up a ‘prohibition regime’. According to Ethan Nadelmann, global prohibition regimes consist of norms, enshrined in international and domestic laws, that prohibit certain activities, whether conducted by state or non-state actors. ³² While exceptions may be built-in for state actors, they are tightly circumscribed. Violators of these norms are condemned by other states, communities, and individuals. According to international relations scholar Tuba Inal, the norms composing prohibition regimes are validated in an international legal document that is ‘binding, precise, and that possibly delegates authority for interpretation and implementation’. ³³ Article 56 includes a modest delegation of authority for implementation: ‘All seizure of, and destruction, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should be made the subject of proceedings’. On these measures, the prohibition of pillage in The Hague Convention of 1899 is clearly a prohibition regime, although lacking a high degree of delegation compared to the 1907 Hague Convention.

The issue of looting and pillaging of private property is taken up in the Regulations, Section II, Chapter I: On means of injuring the Enemy, Sieges, and Bombardments, and Section III: On Military Authority over Hostile Territory. In war, ‘To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war’ is prohibited. ³⁴ After establishing military authority over a hostile territory, ‘Private property cannot be confiscated’ and ‘Pillage is formally prohibited’. ³⁵

While the prohibition of pillage seems straightforward in The Hague Convention, it is not clear whether it applied to the belligerents in the South African War. Article II of the Convention states that ‘The provisions contained in the Regulations mentioned in Article I [Regulations Respecting the Laws and Customs of War on Land] are only binding on the Contracting Powers, in case of war between two or more of them’. ³⁶ The organizers either believed, or deferred to Britain’s belief, that the Boer Republics were not sovereign (which requires a territory, a population, a government, and the ability to engage in diplomatic or foreign relations). Therefore, the Boer Republics were not legitimate subjects of international law and could not act as contracting powers. It follows that Great Britain was not legally bound by the terms of the peace conference in the impending war. Of course, this is a viciously circular argument which the Boer Republics had no hope winning, predicated as it was upon their exclusion from the process of deliberation. Unfortunately, it was more than a discursive exclusion, as just months after the signing of The Hague Convention, they were at war with Great Britain.

However, even if not legally bound, should Great Britain have observed the laws and customs of war laid out by The Hague Convention? If, as historian S.B. Spies wrote, the convention was a ‘yardstick used to judge the conduct of war’, then Great Britain’s conduct would have been subject to normative evaluation by the international community whether or not the South African Republics were signatories to the treaty. ³⁷ Ardagh himself believed that established customs of war were embodied in the convention and therefore ‘The Hague conventions may properly be applied to by both sides’. ³⁸ Indeed, the Convention has been criticized on the grounds that it did little to advance a widely shared understanding of jus in bello. Articles dealing with prohibition of pillage—28 and 47—are taken directly from the Brussels Declaration of 1874. The adoption of these articles required relatively little debate. According to D.A. Graber, ‘the subject of pillage received less detailed attention in this period than in previous ones, because pillage was universally condemned and recognized as illegal so that the point no longer needed stressing’. ³⁹ Thus, the prohibition against pillage was a norm of international law promulgated through custom and action. The International Law Association defines a ‘rule of customary international law’ as one that is ‘created and sustained by the constant and uniform practice of states in circumstances that give rise to the legitimate expectation of similar conduct in the future’. ⁴⁰ The Hague Convention implicitly accepts international custom as a basis for jus in bello in the so-called ‘Martens Clause’, located in the preamble: ‘populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience’. ⁴¹

It is important to understand The Hague Convention’s prohibition of pillage as a developmental step in the development of international law governing the conduct of war. Although The Hague Convention of 1899 was the first codification of a prohibition on pillaging in international law, it wasn’t the first formal prohibition. The 1863 Lieber Code, issued to Union troops during the American Civil War, was the first attempt to gather the customs of war into one document. Pillage was of special concern to Francis Lieber, who wrote to Major General Henry Halleck, head of the Union forces, on May 20, 1863, ‘It does incalculable injury. It demoralizes our troops; it annihilates wealth irrecoverably, and makes a return to a state of peace more and more difficult’. ⁴² Article 22 of The Lieber Code, states that ‘The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit’. ⁴³ Article 38 prohibits seizure of private property: ‘Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the army or of the United States’. ⁴⁴ The Lieber Code thus offers a new way to distinguish between looting and acceptable means of procurement. In Article 22, it also firmly differentiates individuals from armies, and states, ‘as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms’. ⁴⁵ This emphasizes the humanity and rights of both combatants and non-combatants.

With respect to military necessity, Article 14 of the Lieber code states, ‘Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war’. It is clearly stated in Articles 15 and 16 that ‘Military necessity does not admit of cruelty’ and that even in war soldiers are ‘moral beings, responsible to one another and to God’. Moreover, according to Lieber, ‘military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult’. ⁴⁶ Necessity, in this formulation, places the justness of actions of war explicitly within a universal moral framework, an approach that fits within Lieber’s Kantian worldview.

The exception for ‘military necessity’ is also included in the Brussels Declaration. Article 13 prohibits ‘Any destruction or seizure of the enemy’s property that is not imperatively demanded by the necessity of war’. ⁴⁷ Even though the Brussels Declaration never became law, according to Graber, ‘the moral force of the project was so great that belligerents after 1874 observed its rules . . . The Institute of International Law . . . reached the conclusion that the code contained the essential rules of the laws of war which were recognized by all civilized states’. ⁴⁸ The Brussels Declaration was drafted by the Russian Government and modified in Brussels by the delegates of 15 European States, but not ratified. It, along with the Manual of the Laws and Customs of War at Oxford in 1880, formed the basis of The Hague Conventions of 1899 and 1907.

Both the Brussels Declaration and the Lieber Code left a tension between prohibitive and permissive tendencies, or, rather, between the definition of military necessity as subject to the law of nature versus military necessity as an escape hatch from morality in the service of military ends. The adoption by Prussia, and then Germany, of a code very similar to Lieber’s came with a more permissive definition of ‘military necessity’, or ‘Kriegsraison’, which subjected jus in bello to military objectives rather than Kantian morality, natural rights, or humanitarian impulses. Maxims such as ‘Kriegsraison geht vor Kriegsmanier’ (‘Kriegsraison takes precedence before the laws of war’) and ‘Not kennt kein Gebot’ (‘Necessity knows of no legal limitation’) enshrined the view that a battlefield commander may put aside the rules of warfare if he determines that military aims require it. ⁴⁹

The Hague Convention of 1899 represents not a break with the past but an evolution of the justification for a prohibition on looting based in universal moral terms and not merely strategic or self-interested concerns. The prohibition regime of pillage was grounded in the conception of a human right to personal property and can be understood as an application of the general prohibition against theft. But is also is grounded in an appreciation of the moral imperative to minimize the harms of war and the desirability of restoring peace. While it included the word ‘necessity’ four times, The Hague Convention of 1899 did not offer a definition, rendering the prohibition imprecise. This left the prohibition on pillage subject to differing interpretations of ‘military necessity’, and placed the South African War at the centre of an unfolding debate about the role of military necessity in jus in bello that continues to this day. Despite this indeterminacy, the 1899 Hague Convention is significant because it formalized, with sanctions, an already widely shared sense of the wrongness of pillage.

III. Looting and pillage in the South African War

Despite the customs and laws prohibiting pillage, British and Imperial soldiers engaged in looting regularly during the South African War. ⁵⁰ The British army, while not endorsing it, did little to prevent it. ⁵¹ This section explores contemporary attitudes towards looting, following Roger Mac Ginty’s thesis that to ascribe looting solely to individual greed not only misses many other motivations but depoliticizes looting in a problematic way. In particular, the political context of military conflict, which causes the fracturing of law and order, contributes to a sense of permissibility for behaviours like looting. ⁵²

Looting served not only soldier’s material interests, but their interest in asserting psychological dominance. Charles Carlton, a historian of Great Britain’s early modern wars, writes that ‘Looting was one way in which the soldier could lord it over civilians, who normally looked down upon him. It was a legitimate, or semi-legal, form of stealing—sometimes of goods that were valued more as trophies of domination than for their market worth . . . [and it] was fun’. ⁵³ Carlton’s reference, in the same work, to Kipling’s poem ‘Loot’ which appeared in his Barrack-Room Ballads, first published earlier in the 1890s, suggests that soldiers’ attitudes about looting had not changed since the Civil Wars. ⁵⁴

If you’ve ever stole a pheasant-egg be’ind the keeper’s back,

If you’ve ever snigged the washin’ from the line,

If you’ve ever crammed a gander in your bloomin’ ’aversack,

You will understand this little song o’ mine.

But the service rules are ’ard, an’ from such we are debarred,

For the same with English morals does not suit.

(Cornet: Toot! toot!)

W’y, they call a man a robber if ’e stuffs ‘is marchin’ clobber

With the –

(Chorus) Loo! loo! Lulu! lulu! Loo! loo! Loot! loot! loot!

‘Ow the loot!

Bloomin’ loot!

That’s the thing to make the boys git up an’ shoot!

It’s the same with dogs an’ men,

If you’d make ’em come again

Clap ’em forward with a Loo! loo! Lulu! Loot!

Whoopee! Tear ‘im, puppy! Loo! loo! Lulu! Loot! loot! loot! ⁵⁵

The Boer Republics’ exclusion from The Hague Convention reflected contemporary British attitudes held by soldiers and their commanders. Even if the prohibition on looting weren’t beset by problems relating to the definition of military necessity described above, endemic racism provided a rationale for ignoring the Boers’ moral standing. As Malvern van Wyk Smith claims, ‘the Boers would continue to be cast in the discourse of the expanding South African frontier as paradoxical figures, sometimes as the pastoral, feudal patriarchs . . . as African as the ground they walked on, . . . sometimes as crude, shadowy half-caste marginal go-betweens, as uncertain of loyalty as of race’. ⁵⁶ Moral norms by social contract require equality between the contractors: otherwise they are not enforceable on one side. Even the term ‘natural rights’ is only effective to the extent that a people are considered full human beings, possessing innate dignity and worthy of respect. The sense of the need for a prohibition against looting to distinguish civilized warfare from barbarism holds up less well to the extent the British considered the Boers inherently barbaric. An example of this attitude comes from an Imperial Yeoman’s letter to his father: ‘the Boers are a dirty treacherous lot. . . . We do hate them down here like poison. The rascally dirty varmints, they must be exterminated; the country swarms with them’. ⁵⁷

Officers were often torn between imperatives that seemed to conflict when it came to enforcing a prohibition against looting. To allow it could aid in the weakening of discipline and the collapse of organization, but to thwart it could deny men of much-needed resources and hurt morale. ⁵⁸ And thanks to the vagueness of the concept of ‘military necessity’, the line between legal commandeering and illegal looting appeared to be a fine one. Indeed, the acts often went hand in hand. These are examples of what Mac Ginty refers to as ‘absence of restraining factors’, one of the necessary precipitants of looting. ⁵⁹ Even if looting was generally disapproved of, the boundaries were permeable enough that looters could share positive attitudes towards the practice, and onlookers such as officers, while not overtly accepting looting, could be passive for their own reasons.

Officers had few places to turn to seek advice on what to do about looting. Lord Wolseley, the Commander in Chief of the British Army, had written a handbook on field service when he was a young officer in the late 1860s and never once mentioned the subject. But he did warn, ‘No pains should be spared by officers in impressing upon their men the consequence that attaches itself to the behaviour of each of them. Make a man proud of himself and of his corps, and he can always be depended upon’. ⁶⁰ Colonel Charles Callwell’s book, Small Wars: Their Principles and Practice, first published in 1896, was essential reading for the late Victorian officer. Callwell discusses looting but only as an action associated with traits that he attaches to ‘Hill-men and savages of parts of Africa’, ‘Asiatics’, ‘guerrillas and insurgents’, and ‘irregular forces’. ⁶¹

But British soldiers, regulars and irregulars, participated in looting throughout the war. Soldiers assumed that if a homestead had been abandoned, its owner was out on commando and therefore the property was forfeited. This simplistic inference often justified the farm’s destruction, which led to the conclusion that if a farmhouse was to be burned, its contents could first be removed without paying the owner. Of course, this line of thought narrowly focuses not just on consequences to the exclusion of the other moral bases for the prohibition against pillage, but on material consequences only, ignoring psychological and emotional harm to the owner, not to mention the prospects for a return to peaceful relations between Boers and the British after the war.

Colonial troops possessed the worst reputations in the British army when it came to looting. Craig Wilcox has shown that looting was ‘universally practiced’ by Australian volunteers, especially late in the war when men were hungry and tired, when discipline had broken down, and when soldiers were posted to more remote areas. ⁶² Trooper Thompson of the Second Tasmanian Imperial Bushmen wrote in a letter,

It was a sore point with the colonel to have to give a farmer compensation for his garden being destroyed and his fencing poles taken for firewood. He had stacks of guards to see that nothing was touched, and any amount of fresh orders; but he might have saved himself the trouble, as the most honest man in civil life will become the biggest thief on active service, and the Tasmanians generally were no exception to the rule. They seemed to delight in stealing anything that came in sight. ⁶³

This point highlights the importance of a permissive sociocultural context: none of these men would have broken into a neighbour’s house and taken what he wanted. But the practice of pillage in wartime, even though the traditional justifications had fallen away by the turn of the nineteenth century, was still common.

Another important factor was the end of the conventional war by mid-1900 and the emergence of a new kind of guerrilla war that further troubled attempts to draw a line between just and unjust tactics. The Regulations Respecting the Laws and Customs of War on Land does not specify types of warfare; for example, it does not distinguish between conventional war and war of insurgency. But it does, in Section I, Chapter I, recognize that there are different types of belligerents to whom different rules may apply. Regardless, as the nature of the war changed, so did the attitude of Lord Roberts, the Commander in Chief of the British Army in South Africa. Throughout most of 1900, he stood against the destruction and confiscation of enemy property, but this changed as Boer tactics changed. In June, the Boers attacked a British column at Roodewal; the following month, they attacked another at Silkaatsnek. Both raids led to the looting of clothing supplies. British prisoners were routinely stripped. ⁶⁴ In a September telegram to Lord Lansdowne, the Secretary of State for War, Roberts wrote, ‘It is difficult to come to any settlement with an army broken up into small fractions and without a recognized leader, and it is equally difficult to deal with bands of marauders in accordance with civilized warfare, yet it is hardly clear whether we should be justified in treating them as rebels without their having been given due notice’. ⁶⁵

John Henry Abbott of the 1st Australian Horse wrote that ‘Looting comes to [the Australian] naturally, though apparently not quite so naturally as to the Canadian, who is the most accomplished ‘looter’ in all the world’. ⁶⁶ Lieutenant William Power, 8th Company Derbyshire Imperial Yeomanry, complained bitterly in letters home about the looting done by New Zealand troops. He believed it encouraged looting among his own men who witnessed them removing all sorts of goods from homes, and, as a junior officer, he knew that he would ultimately be blamed by his commanding officer if his men followed suit. This tendency to label men ‘looters’ is at odds with Trooper Thompson’s comment above, and demonstrates the tendency of officers to view looting as something naturally springing up in soldiers’ minds, without understanding the role they themselves played in encouraging an absence of restraint. ⁶⁷

Several British-raised Volunteer and Imperial Yeomanry units similarly earned reputations as looters. ⁶⁸ Discipline was more lax in these units. Many of the men had very little training before coming out to South Africa and it proved harder to control them on and off the battlefield. Particularly strong in several Imperial Yeomanry units was a middle-class ethos which rejected strict discipline. Whatever the reasons, these men were more likely to make individual decisions rather than to comply to the strict discipline demanded by the regular army. Colonel H.E. Belfield saw both the strengths and the weaknesses of employing such men. ‘The way in which our Yeomen have picked up their work is, to my mind, extraordinary’, he wrote to his wife. ‘They are the best scouts I ever saw—far and away—being more intelligent than soldiers + I think they are improving in shooting which was their weak point. The worst of them is that they are awful looters. They’ll collar anything that comes in their way’. ⁶⁹ Lieutenant C.S. Awdry, 1st (Wiltshire) Company Imperial Yeomanry, complained in a letter home to his mother that his men were looting and no matter what he did about it, there was little he could do to enforce strict military discipline. Yet evidence that he actually took appropriate action to curb looting is absent. ⁷⁰

A Mrs G, who told her story to the British welfare campaigner Emily Hobhouse, notes the loss of her silver candlesticks, her husband’s ploughs and machinery bought from America, and a stallion that had cost Mr G over 200 (pounds sterling). ⁷¹ Silver candlesticks were a common item looted by British soldiers, as were Bibles. Neither are goods which could be described as meeting military necessity. One soldier wrote in his journal that his friend took a set of false teeth which he gave to his African servant. ⁷² Captain L. March Phillips, Rimington’s Guides, wrote in his memoir of the war,

Looting is one of [a soldier’s] perpetual joys. Not merely looting for profit, though I have seen Tommies take possession of the most ridiculous things – perambulators and sewing machines, with a vague idea of carrying them home somehow – but looting for the sheer fun of destruction; tearing down pictures to kick their boots through them; smashing furniture for the fun of smashing it, and may be dressing up in women’s clothes to finish with, and dancing among the ruins they have made. To pick up a good heavy stone and send it wallop right through the works of piano is a great moment for Tommy. I daresay there is something in it, you know. ⁷³

Writing to her brother Leonard, a well-known liberal political theorist, Hobhouse described an incident she witnessed at a train siding on 10 or 11 March, 1901. ‘Some Tommies on the platform are busy packing their kit. They amuse me. One man looking on says, ‘One would think you were going to start a dry-good store!’ Another picked out a silver candlestick, much bent with packing, saying, ‘Look at the curios!’ It was an odd conglomeration they had spread out, looted I suppose from the denuded and deported women’. ⁷⁴

Hobhouse’s depictions of the hardships of well-to-do Boer women may have played well with certain British readers who could identify with the ‘upper class of prisoners’ who ‘feel the degradation of camp life more than the poorer people’, especially ‘while under the eyes of a lot of lazy blacks, who hugely enjoy seeing white people made to work while they idle’. ⁷⁵

Through official channels, both the governments of the Orange Free State and the Transvaal lodged complaints. After the republics had been annexed, Kruger, who travelled in Europe, and the Orange Free State President, Marthinus Steyn, who remained in the field, as well as senior Boer commanders continued to express concern. Similarly, early in the war when the Boers went on the offensive and invaded Natal and the Cape Colony, the British officially complained about the looting of ‘loyalist’ homesteads. More than once Roberts wrote the War Office expressing his concern that looting could not be controlled and went so far as to increase the number of military police in the field. ⁷⁶ Military police, however, had little impact. ⁷⁷ A number of circular memos were also issued to field officers. A few days after capturing Bloemfontein, the men were called out and Roberts’s second general order, which dealt specifically with looting, was read aloud. Sergeant Murray Jackson, 7th Mounted Infantry, reported that they were threatened that if they took anything they would be tried by ‘drumhead court-martial and instantly shot!!’ ⁷⁸ These threats, however, were never made good and looting remained a constant throughout the war. John Boje’s study of Winburg shows that Roberts’s promises of protection to the Boers failed. Even burghers who collaborated with the British had their homes and shops looted and pillaged. ⁷⁹ Again, evidence shows that the lack of restraint, in this case of enforced punishments, contributed to widespread looting.

In his memoir, A Subaltern’s Letters to His Wife, Sir Reginald Rankin wrote,

Another military fiction was the penalty for looting. . . . It went round that Lord Roberts was all for hanging any man found with a feathered biped in his possession. One day [the Commanding Officer] took me to task severely because I rode into camp with a duck and a hen gracing the flaps of my saddle. ‘You will be hanged when you’re caught’, he remarked sagaciously. My impending fate, however, had no bad effect on his appetite when my booty came up cooked; he labored disinterestedly, and with entire success, to remove all traces of my folly. The next day the following revolutionary edict came out in brigade orders: ‘Loot must not be carried openly on the saddle’. [The C.O.’s] scandalized dis-comfiture was delightful. It was a terrible shock to his faith in the Persian immutability of military regulations. To him it was as though the Chief Commissioner of Police had publicly said, ‘Murderers are requested to put the bodies where constables can’t find them’. Naturally, after this, even the august vicinity of generals did not deter the looter. ⁸⁰

The South African War was waged during a period when moral norms of jus in bello, exemplified in The Hague Convention, militated against looting in the strongest possible terms. The moral justifications included utilitarian, rights-based, and social contract arguments. The moral equality of human beings translated to a moral equality of combatants. The right of a human being to own and control his private property was considered central to liberal, enlightenment ideas of freedom and dignity. The notion that humanity was progressing, becoming civilized, and moving ever farther away from a barbarous past, was reflected in The Hague Convention’s language to the effect that it was required by the ‘ever increasing requirements of civilization’. ⁸¹ Future Liberal Prime Minister Henry Campbell-Bannerman held this belief when he referred to the British army’s tactics in the war as ‘methods of barbarism’. Modern states wanted to maintain strict discipline not just to ensure resolute action on the battlefield, but also to transform the image of the soldier. Finally, the stated goal of The Hague Convention, to provide a ‘mutual insurance association against the abuse of force in time of war’ enshrines the notion of morality as the best way to protect the mutual self-interest of equals.

And yet, looting by British soldiers was endemic in the South African War. This article has described multiple intersecting factors that set the stage for looting. It has rejected the greed thesis that explains looting solely in terms of material gain, because it places looting on the fringe of war, reducing it to simple psychology and thereby depoliticizing it. Instead, looting must be seen in symbolic and strategic terms. This article has discussed the way in which the British government’s political aims and attitude towards the Boer Republics prevented the latter’s participation in The Hague Convention. It has further explored the way The Hague Convention of 1899 signalled an important development of the prohibition on looting in international law. It has also explored two sources of indeterminacy in The Hague Convention: the absence of a definition of military necessity, and the lack of clarity on whether military necessity should be subject to moral law or vice versa. It has described how the racist, colonialist attitudes of the British contributed at every level to a permissive environment for looting, from the exclusion of the Boer Republics from The Hague Convention to the rationalizations of the British soldiers and commanders on the ground. This article has also acknowledged the contributions of British soldiers’ personal greed and the desire for psychological dominance and control over their enemy. Finally, it has described the importance of context. War is an inherently chaotic environment where the rules of civilized living are bent, set aside, or foregone entirely. For the British army, the use of guerrilla tactics by the Boers blurred lines between combatants and non-combatants, and between military tactics and civilian living. The failure of the British army to enforce the prohibition on looting seemed to further justify the looters’ behaviour. An understanding of looting in the South African War requires analysis of the political, moral, social, psychological, and military contexts in which it occurs. This approach also sheds important light on the complexities of the first Hague Convention’s seemingly straightforward prohibition on looting.