Should nations have a right to conquest? Our enlightened principles have condemned us to eternal war

I am not drawing this contrast to cast blame on Palestinians for not following the example of the ethnic Germans. Jews like myself, who have chanted “next year in Jerusalem” every Passover for many centuries, can hardly lecture others on the need to “move on”, and to forget a lost homeland. My point is rather that in the modern world it is actually the experience of the ethnic Germans which has become increasingly unusual. Fewer and fewer conflicts have as decisive and permanent a resolution as the Second World War, and this change has had decidedly mixed consequences.

Before the era of the French Revolution, peoples around the world mostly accepted that military victory conferred certain legitimate rights upon the victor. The Yale historian James Whitman has argued that in 18th-century Europe, jurists viewed battles as akin to legal procedures, their outcome having legal force that peace treaties would then codify. When Prussia seized Silesia from the Austrian Empire in the 1740s, for instance, contemporaries accepted the conquest as legitimate because of Frederick the Great’s battlefield victories, not because of arguments as to whom the province rightfully belonged. That particular transfer of territory did not involve a transfer of population, but others did.

Starting in the late 18th century, however, a belief in what Whitman calls the “law of victory” began to fade. Jurists increasingly defined all war not waged for strictly defensive purposes as illegitimate, and thereby denied that acquisitions achieved by force could ever acquire the force of law. Already in the 1790s, when the French Revolutionary state took over new territories, it took care in most cases to legitimise the annexation through plebiscites. After the First World War, transfers of territory, at least in theory, likewise depended on the will of the population in question. And since the 19th century, nationalist movements have insisted on the unbreakable and eternal right of particular peoples to sovereignty over their historical homelands. Go to Hungary today and you will see maps of the country that still adhere to the boundaries of 1918 — when the country included all of present-day Slovakia, most of Croatia, and large chunks of present-day Romania and Serbia.

In this history, the aftermath of the Second World War in Europe stands out as exceptional for the modern period. Joseph Stalin’s determination to punish Germany for its aggression and ensure the future safety of the USSR trumped what had become the usual pattern of European conflict resolution. The cataclysmic scale of the conflict, and of Soviet losses — with more than one in seven Soviet citizens killed — encouraged the allies to go along. As late as 1940, when absorbing the Baltic States and eastern Poland, the Soviets had first staged sham elections to choose representatives who then “requested” annexation. But when, in 1945, the USSR added half of East Prussia to its territorial gains, it effectively did so on the basis of the law of victory. It had no historical claim to the territory, whose pre-war population was 85% German. At the same time, Stalin insisted that Germany surrender its other eastern provinces. The expulsions followed.

It would be natural to applaud the eclipse of the “law of victory” as a triumph for enlightened human values. How can a civilised society possibly accept an idea that boils down, in essence, to might makes right? When Whitman writes that “18th-century wars were more contained and civilised than the wars that have been fought since 1860, not less”, he is surely uttering an absurdity. Or is he?

The paradoxical consequence of this shift away from the “law of victory” is that, today, international conflicts often prove almost impossible to bring to a definitive conclusion. In case after case, each side endlessly accuses the other of illicit aggression, of violation of sovereignty, of illegitimate seizure of territory, of illegal expulsion of populations. Even when the actual fighting ends, or dribbles down to the occasional skirmish, definitive peace agreements prove frustratingly elusive. Instead, we are left with “frozen conflicts” that drag on for decades, often accompanied by the emergence of new states that have a shadow existence, unrecognised by others and unable to join the United Nations: Northern Cyprus, Transnistria, South Ossetia, Abkhazia, Kosovo, etc. Of all these frozen conflicts, Israel-Palestine is the most prominent — although “frozen” seems a singularly inappropriate term for such a ferocious situation.

Meanwhile, encouraged by international opinion and homegrown nationalists alike, national leaders refuse to contemplate ceding even an inch of their legally recognised territory to military opponents. Is there anything sacrosanct about the present-day borders of Ukraine, which Soviet politicians drew in the Fifties for reasons that had very little to do with history, or the desires of the affected populations? The Crimean Peninsula in particular has a largely ethnic Russian population, and historical ties to Russia — which itself, admittedly, seized the territory by force from the Ottoman Empire, which in turn seized it from someone else. But Ukraine has absolutely refused to contemplate ceding Crimea or anything else within its borders to Russia, insisting on the integrity of its territory, and (quite reasonably) protesting that any legitimation of Russia’s aggression will only encourage more of the same. But the alternative has meant leaving Crimea in legal limbo for the foreseeable future, along with the eastern Ukrainian territories that Russia has occupied, even as the Russia-Ukraine war devolves into yet another frozen conflict.

The conundrums created by renouncing the “law of victory” are all the greater because the modern world recognises no statute of limitations on aggressive conquest. Very few living Israelis played a part in the events of 1948-49, but, in the eyes of much of world opinion, the present-day Israeli population still bears responsibility for correcting them. For that matter, do the United States, or Canada, or Australia or New Zealand have legitimate sovereignty over their territories? According to increasingly popular theories of “settler colonialism”, they do not: colonists stole these territories from their rightful, indigenous owners, which retain at least a moral claim to sovereignty.

One result, in the US, is the spread of “land acknowledgments” in which various institutions make public statements that they exist on illegitimately seized land (I happen to be writing this essay on the ancestral lands of the Lenape people). In practical terms, such statements make little difference, but people who see their own state as fundamentally illegitimate because of events that happened hundreds of years ago are unlikely to treat the dispossession of the Palestinians as a settled issue, particularly when they cast Israelis as “colonists” — although a majority of the Israeli population descends from Jews who lived in the Muslim world, and were themselves expelled in the wake of 1948.

Obviously, these conundrums are not going to be resolved any time soon. The principle that aggressive war cannot be countenanced or encouraged is too powerful to resist, and in part for good reasons. But it might help if states at least did more to acknowledge that the conundrum exists, and that, as Whitman argues, our enlightened principles have often produced surprisingly dark outcomes. It might help as well if states more readily conceded that as time passes, even if the rights of a dispossessed people remain valid, the form in which they deserve restitution should be open to change. We need to recognise the difference between people reclaiming land that they personally lived on, and land that their grandparents lived on, now inhabited by grandchildren of the people they accuse of having dispossessed them. Even in the space of less than a generation, at some point it may make sense for contending parties to reach an agreement in which compensation takes a non-territorial form. An insistence on justice should not condemn us to conflict without end.

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David A. Bell is a history professor at Princeton with a particular interest in the political culture of Enlightenment and revolutionary France. His latest book is Men on Horseback: The Power of Charisma in the Age of Revolution.

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