The Laws of War in Ancient Greece
By Adriaan Lanni
Law and History Review, Vol. 26, Issue 3 (2008)
Introduction: One of the earliest and the most famous statements of realism in international law comes from ancient Greece: the Melian dialogue in Thucydides’ history of the Peloponnesian War. In 416 B.C.E., the Athenians invaded Melos, a small island in the Aegean that sought to remain neutral and avoid joining the Athenian empire. Thucydides presents an account of the negotiation between the Athenians and the Melian leaders.1 The Athenians offer the Melians a choice: become a subject of Athens, or resist and be annihilated. The Melians argue, among other things, that justice is on their side. The Athenians dismiss arguments from justice as irrelevant and reply with a statement that many scholars believe represents Thucydides’ own view: “We both alike know that in human reckoning the question of justice only enters where there is equal power to enforce it, and that the powerful exact what they can, and the weak grant what they must.”
Thucydides’ presentation of inter-state relations has cast a long shadow on modern interpretations of the effectiveness of the ancient Greek laws of war. The reputation of the Greek laws of war also has not been helped by the massacres of noncombatants and other gross violations of modern humanitarian norms that regularly occurred in the classical period. There was a relatively effective law of war in ancient Greece. But the Greek law of war did not encompass humanitarian ideals. Instead, it focused on protecting sacred objects and observances. The great irony here is that despite the central role played by religion and honor in the Greek laws of war, these laws were indifferent to considerations of mercy and the protection of noncombatants. Notwithstanding Thucydides’ grim view of the efficacy of international law, I will argue that the evidence from ancient Greece actually supports the position that international law did serve as a meaningful check on state behavior.
This article first surveys what we know about the law of war in ancient Greece, addressing the sources of the Greek law of war, their enforcement mechanisms, and the content of the laws themselves. Along the way, I want to highlight three observations that help explain why the laws of war may have been more effective than generally thought. First, everyday domestic Greek law was very different from our own in that it included unwritten, customary law. For the Greeks, the notion of applying a customary international law based on state practice was familiar and completely uncontroversial. Second, the importance of honor and status in the ancient world meant that reputational sanctions for violating the laws of war could be effective even in the absence of formal enforcement mechanisms. Third, for the most part the Greek laws of war grew out of religious customs. The laws of war were therefore naturally part of the culture and values of constituent states and, as such, could more easily encourage compliance than laws whose legitimacy was based purely on a theory of consent or on the fairness of the procedure by which they were enacted.