By: Stephen
C. Neff, Reader in Law – Public International Law, University of Edinburgh Law
School
As modern-day humanitarian lawyers well know,
there is a world of juridical difference between ruses of war and perfidy. A
ruse lulls the enemy into a sense of false security. It is, in effect,
deception as to fact – and is perfectly lawful. Perfidy, in contrast,
deceives the enemy as to the prevailing legal state of affairs, i.e., it
misleads the enemy into thinking that he is under the protection of the laws of
war when in fact he is about to be attacked. As such, it is severely
condemned.
This sometimes subtle distinction can be traced
far back in history. The ancient Greeks, for example, were adept at ruses –
most famously that of the Trojan horse – but they were scrupulous about
respecting their legal obligations. In particular, they took great care to
avoid violating oaths solemnly sworn, even for the benefit of enemies. At the
same time, however, the Greeks – and other ancient peoples too -- were quite
willing to engage in what might politely be called “sophistic” interpretations
of their legal obligations. Some would use harsher language.
The Roman historian Frontinus, for example, tells
the story of an Athenian general named Paches, who induced his foes to lay down
their steel (ferrum), in return for a promise that his army would do them
no harm. The enemy duly surrendered their swords – only then to be massacred, on
the ground that they had violated their part of the deal by retaining the iron
clasps on their cloaks.
Polybius disapprovingly relates the story of a
group of Greeks from the city-state of Locris who were founding a colony in
Sicily, in probably the late Eighth or Seventh Centuries B.C. The local
people, known as the Sicels, were worried – with good reason – that the Locrian
colonists planned to expel them from their homeland. The Locrians put them at
ease by swearing that they would be friends with the Sicels and share the
territory with them “as long as they trod on this earth and wore heads on their
shoulders.” The clever Greeks, however, at the very moment of the swearing,
had carefully placed earth in their shoes, and had also concealed heads of
garlic on their shoulders, under their cloaks. Having thus reassured the
Sicels of their good intentions, they then emptied the earth from their shoes
(so that they were now treading on shoe leather rather than earth!) and threw
the garlic “heads” off of their shoulders – and expelled the Sicels from the
area.
In the late 6th Century, an intriguing – if
slightly gruesome – incident is said to have occurred in Sparta. King
Cleomenes I, who was not in the regular line of succession, gained power with
the assistance of a certain Archonides. To express his gratitude, Cleomenes
swore to Archonides to “do nothing without his head” – i.e., to consult
Archonides on all major decisions in the course of his rule. As a decidedly
imaginative means of implementing this commitment, Cleomenes had his helpmate
decapitated. He then had the head embalmed, and carefully kept it ready to
hand at all of his future state business.
The prize for creative interpretation of oaths should
perhaps go to the women of the Greek city-state of Chia, when it was locked in
armed combat against Erythrae, over possession of the city of Leuconia. The
Chians had the worse of the contest and finally agreed to surrender Lcuconia
and to depart carrying only their cloaks and tunics. The women of the city
then conveniently recalled an ancient local custom, according to which a spear
was labelled as a “cloak” and a shield as a “tunic.” The soldiers apparently
followed this advice and departed fully armed.
It should not be thought that the Greeks had a
monopoly on sophistic interpretations of legal obligations. We may award due
points to the Phoenicians, in their negotiation with local African peoples over
the founding of the colony of Carthage in the Ninth Century B.C. The
Phoenicians are reported to have sworn to the local rulers to acquire only as
much territory as could be encompassed by an oxhide. They then promptly
proceeded cut the said oxhide into a very thin – and long – rope, which gave
them sufficient territory to accommodate their famous city.
Herodotus relates the enlightening story of a siege,
in about 518 B.C., of the Greek town of Barca, in North Africa, by Persian
forces sent from Egypt (then part of the Persian Empire). After a long period
of operations,