The Jamestown Massacre: Rigour & International Legal History

Over recent years there have been significant advances in scholarship on the history of international law. Critical histories, including feminist, Marxist and most productively Third World perspectives, shed fresh light on the history of the discipline and its political frame illuminating contemporary international law in important ways. Amongst the small pond of critical international lawyers, the question of historical methodology, and how to use history as a lawyer is the subject of intense debate, particularly the attendant methodological anxieties inherent to challenging dominant narratives. The Journal of the History of International Law is a key arena where this re-examination of the history of the discipline occurs.

The Journal’s mission statement reads as follows:

The Journal of the History of International Law / Revue d’histoire du droit international encourages critical reflection on the classical grand narrative of international law as the purveyor of peace and civilization to the whole world. It specifically invites articles on extra-European experiences and forms of legal relations between autonomous communities which were discontinued as a result of domination and colonization by European Powers. It is open to all possibilities of telling the history of international law, while respecting the necessary rigour in the use of records and sources. It is a forum for a plurality of visions of the history of international law, but also for debate on such plurality itself, on the methods, topics, and usages, as well as the bounds and dead-ends of this discipline. Moreover, it devotes space to examining in greater depth specific themes.

The lead article in Volume 19(1) is entitled “The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention“. The author, John T Bennett is a veteran, practicing attorney and an occasional contributor to the American Thinker, a blog that can be characterised as “alt-right”. Bennett’s blogs are largely concerned with immigration and the loss of American identity while other posts on the site attack triggered snowflakes on American campuses who support the Stalinist antifa. This is, to say the least, a surprising voice to hear in a journal dedicated to challenging the grand narrative of international law. Unavoidably we bring our own views to the process of turning knowing into telling, in turning data about the past into history. The best we can hope for is to acknowledge these things and aim for methodological rigour as an antidote to potential polemic.

Conservative voices are present in the turn to history in international law, generally insisting on a strict contextualist approach abhorring any use of the past to tell us something about the present as anachronistic. Both contextualist and more radical approaches to history challenge the grand narrative but admittedly neither impact greatly beyond academia. Bennett’s article is of a different type. His self-declared “heterodox” approach fully reveals itself in the final paragraph when he denounces “anti-white, anti-English” interpretations of history. It is from this viewpoint he seeks to argue that the Native American Powhatan’s responsible for the 1622 Jamestown Massacre committed genocide.

It is difficult to respond to Bennett’s article because in doing so it grants it a level of credence, but when an article of this type is published in a leading peer reviewed journal, it is also important to respond so as to not lend it more legitimacy. Of course, there are issues over how to interpret the past. Of course, there are issues with the Genocide Convention, its construction, application and its place in the wider space of international criminal law. But Bennett’s piece is not about that.

Bennett’s key argument is that “violence would understandably remain in the memory of any people with a sense of self-respect, or at least with a sense of self-preservation. […] the 1622 massacre serving as a pivotal experience: an existential warning.” This rhetoric, situated in the language of white genocide that originated in Nazi pseudo-science and is often propagated as a white nationalist conspiracy theory, has made it into a peer reviewed international law journal and we want to ask how?

As academics, our choices of language lie at the core of the critique we receive, especially during peer review. Calling out assertion of facts before proof is provided or claiming a legal interpretation is correct before – or ever – demonstrating how is central to the work of peer review to ensure work is thorough and merited of publication. It strikes us that this article fails these most basic tests of legal rigour. We challenge the article in three main ways: the choice of questions, the application of the Genocide Convention, and the use of history. The article should never have been published, not because of its objectionable polemic, although that is reason enough, but because it does not satisfy the basic standards of academic rigour in either history or law.

Choice of questions

Throughout the article linguistic choices are key to presenting an image of common sense and rational argument. From the outset it creates a tone that establishes martyrdom not only of the Jamestown Invaders but also the author themselves. That if only the reader stepped away from their own bias they would see this perspective as correct. The first paragraph demonstrates an ease with deceptive variations in descriptions to build a picture. In the opening sentence, the Powhatan nearly succeed in killing everyone, but in the following sentence it is revealed that they killed ¼ to 1/3, but that first image of killing everyone is already imbedded.

The descriptions of the Powhatan are emblematic. So, it is a Powhatan Empire but nowhere in the text are the English, or any other invader, described as imperial. England was intent on spreading its Empire. For example, only three years after the establishment of Jamestown the local Paspehegh sub-tribe had been entirely destroyed through a mixture of conflict, disease and being driven off the land. Instead we are given the history of the Powhatan and their wars with other Native Americans. Painting a picture of aggressiveness that was extant before the arrival of the pacific English who, in reading this article, one would imagine just wanted to make some new friends. This is underscored by referencing the Jamestown Assembly – a sign of civilised governance, by noting that the English ‘allowed the Indians to enter their villages’ quoting a piece that refers to savages and suggesting that allowing them to enter what had been their land was a demonstration of grace.

The author describes the hard life of the invaders, seeking us to sympathise with the roughness of colonist life. The picture of the violent civilisationless indigenous population versus the pacific good intentioned colonialists establishes a frame by which the author claims any action taken by the white population afterward – is entirely understandable if not justified. The acknowledgment dismantlement of the Powhatan and other Native American groups can be traced back to this incident. Ultimately, they are to blame for their own downfall: victim blaming that is extraordinary in its audaciousness.

A clear tactic is to present questions that push the reader in particular directions, even if the actual answers are the opposite of what the author seeks. So, asking about the apparent readiness to apply genocide when it is committed by Europeans but not others. But of course, since the Convention was passed it has been applied to many cases where the perpetrators were not European but asking the question raises a doubt. Asking if it was a massacre or worse, assumes the first part is accepted and that a massacre which is not genocidal is somehow less horrific.

The article finishes with a series of questions that are clearly aimed at raising doubts with no evidence. One in particular demonstrates the agenda at the core of this piece. ‘Did the Powhatan attack have any discernible rationale that would be recognized today as legitimate? Was the attack disproportionate to any conceivable threat represented by English settlers?’ Like the rest of the article this places the English settlers as pacific people not as invaders. It does not ask whether the English invasion had a discernible rationale that would be recognised today as legitimate? Because of course that question would not be asked, because it is absurd.

The final paragraph claims that this article is a buttress against ‘plainly anti-white, anti-English interpretations’ of history. Nowhere in the article does the author demonstrate any ‘anti-white’ literature. While of course the author does not state that these articles are racist against white people this is what is being presented as fact but based on no evidence.

The Genocide Convention

The use of the Convention itself is methodologically unsound, the definition is not set out until nearly two thirds into the piece by which time the author has planted the idea that the ‘English’ were a single group of settlers that the Powhatan would identify by ideas, some of which such as race, had not yet been invented. There is no sense that the English would have been regarded as part of a wider set of invaders coming from elsewhere.

Bennett repeatedly uses the statistic of 28% of the Jamestown settlement, a clearly unsound approach when the actual numbers of white invaders in the Americas was much higher. The mention of Pocahontas or Matoaka opens the door to her tragic story and her eventual death in England suggesting an awareness that an attempt to wipe-out the English was impossible as the Powhatan would have been aware of the vast numbers of white people who could and did come to the Americas.

Before apparently applying the Convention the author first seeks to dismantle any objection before it arises quoting newspapers about the liberal views of academics as a ‘cause for concern’ amongst students and the wider population. Now the author does not say what those concerns of students actually are. He quotes studies about the leftist approach of academics in the US however this research has been demonstrated by Gross to be inaccurate and the methodologies employed flawed. The number of US academics who describe themselves as far left or liberal left is actually about half. Further studies have shown that student political attitudes rarely change between their first and final years. Similar studies in the UK, while showing a higher percentage of left leaning academics also demonstrates that this does not impact on the views of graduates whose political attitudes break down as similar to the general population. However, the author has already created a projection of all other accounts of Jamestown as being infiltrated by far left or liberal views of history. His is the sole voice fighting against a hegemonic historical account. Albeit he presents little actual evidence of this other than arguing that Native American perspectives are all pervasive.

The Use of History

Bennett builds his whole argument on one historical fact – the massacre of 347 English colonists in the Jamestown area. The first misuse of history in the argument is then to denote the English colonists in the Jamestown area as a distinct group for the purposes of the Genocide Convention. He distorts the raw number of 347 by presenting it repeatedly as a percentage of this invented group. He further distorts the percentage by continuously slipping into describing this as nearly all the colonists.

The conservative response to critical history of international law has generally been to insist on not being anachronistic, to understand the past in context and not to use it to talk about the present or vice versa. The application of 20th century international law to the early 17th century is of course deeply anachronistic. The author argues that left wing commentators have described the annihilation of Native Americans as genocide, so it is open to him to do so too. As we noted above, this is long before he defines genocide, and it is a caricature of post-modernism to think the meaning of words is malleable.

Bennett repeatedly accepts that political viewpoints play a role in narrating the past, but declares that his “empirical” approach avoids this trap. Inventing a statistic is not empirical. Anachronistically applying the Genocide Convention to an invented group is not empirical. Acknowledging that the perspective of the author influences the history they write is supposed to make us more aware of the limitations of historical argument and more sensitive to what we are doing with it. It should be a call for greater self-awareness. In the history of the colonisation of the Americas it means trying to both give voice to the native populations and understand what has been done to them. It means acknowledging that the English were always specifically aiming to claim land rather than merely trade. English imperialism was a settler colonial endeavour. It means understanding that the Trail of Tears was not just the death of 25% of the Native Americans involved, it was the forced relocation of tens of thousands of indigenous people, over a couple of decades in the middle of the 19th century, to transfer the ownership of the land over to white settlers. This approach, described by Bennett as “ideological” and “hegemonic” is nothing of the sort.

The publication of this article is hard to understand. It fails to satisfy basic standards of academic rigour, either in history or law. It is driven by a clear political agenda that we must be wary of giving space to. But fundamentally, if academic journals are going to publish articles from the “alt-right”, they should at least be held to the same standards as any other submission. A sub-culture that hates any attempt to assist the powerless and disenfranchised would surely hate to be given an easy ride.

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  5 comments for “The Jamestown Massacre: Rigour & International Legal History

  1. Anna G Ramberg
    25 August 2017 at 5:21 pm

    Acknowledgement from the editors that the piece is driven by a(n alt-right) agenda is a step in the right direction but I wonder whether it goes far enough and whether it is somewhat missing the point, a bit.

    To some extent, all scholarship is political: all scholarship is the product of, at the very least implicit, political aims and theoretical lineages. Scholarship does not exist in a political vacuum. The problems with Bennett’s piece – and its publication – flow from *what* politics he is promoting, the violent revisionism of those politics and the espoused apolitical nature of his article. He seeks to ground his rhetoric, his revisionism in factual inaccuracies masquerading as “empiricism”. These politics and the casting of them as neutral historical enquiry embody a specific form of violence and violent denial which should not have been given a platform by the journal or passed a review process.

    Bennett’s piece should be withdrawn from the issue but, for the purposes of accountability, remain available online with an accompanying retraction and explanation from the editors attached to the .pdf.

  2. Tacitus
    28 August 2017 at 8:29 pm

    I have not read the piece by Mr Bennett, do not know him, and certainly do not share the political conviction or agenda the above blog attributes to Mr. Bennett. But the response by the Journal’s Editors, that they agree with the critique, admit that the peer review process has been insufficient, and concede that the piece should not have been published (all of this hours after the above blog has appeared), raises deep concerns for me. I am concerned for two reasons – both of which have nothing to do with Mr Bennett or his piece – but with what the Editors’ response tells us about the way they run this Journal.

    First, I am concerned as an author and what the Editors’ response means for author-journal relations. What would we as authors expect from the Editor in light of criticism of colleagues that one of our manuscripts should not have been published? Wouldn’t we expect him/her/them to stand up for us, to defend our right to academic free speech, to academic freedom – just as Joseph Weiler, a few years ago, has defended a critical book review in the European Journal of International Law and even appeared in court to defend against claims against the piece in question by the author of the reviewed book?

    By contrast, what happened in the case of Mr Bennett? The author is simply dropped by the Editors in the face of the above critique. What does this tell us about the views the Journal Editors have of authors? They appear like disposable material, not worthy of academic defense, not even worthy of a voice. Mr Bennett, after all, is not given a right to respond to the critique in the blog above before he is condemned by the Journal’s own Editors who accepted (!) his manuscript. Hearing Mr Bennett first is something that should have been good academic practice – all the more by a journal in law, run by lawyers (we call it due process and right to be heard).

    Independently of what we think about the substance of the piece and the author’s political agenda – we should all be solidary as authors against journal editors who do not defend us academically – independently of the political leanings we have. Today it is Mr Bennett, tomorrow it could be one of us whose academic reputation is undermined by those who agree to publish us after submitting to what we presumed to be a rigorous peer-review process.

    Rather than simply agreeing with the critique, the proper course for the Journal would have been to invite the authors of the above blog to contribute a critical response to the Journal and then allow Mr Bennett to respond. This is what a proper Journal would have done – but perhaps this is exactly where the dog lies buried.

    Hence, the second issue that deeply worries me about the Editors’ response is that it does not explain how what they now agree was a mistake happened. How come they find out after accepting and publishing a piece that the review process was deficient, but not before? How come none of the Journal’s Editors – all highly experienced and decorated in international law and its history – the Editor-in-Chief even director at the prestigious Max Planck Institute for Comparative Public Law and International Law in Heidelberg and co-editor of the Oxford Handbook on the History of International Law – has (they now claim) realized before the above blog was published (and with which they now agree), that the piece was not acceptable from an academic perspective, but ‘driven by a political agenda’?

    There are only two possibilities I can imagine: either the Editors endorsed the piece as acceptable from an academic perspective at the time they accepted it for publication, or they have not even read the piece before accepting it, but relied mechanically on (obviously insufficiently credible or insufficiently monitored) peer reviewers and possibly their assistants, but did not do the job they were supposed to do.

    I am not sure which scenario is more credible. But both raise serious concerns about the leadership of a journal which so far has had, as far as I am aware, an impeccable academic reputation. Both scenarios also raise question marks with respect to every other manuscript that has been accepted for publication under the current leadership. After all, who can vouch for the academic quality of those manuscripts and that the peer review process and the Editors’ judgment has actually worked in those cases?

    Every author, every reader of the Journal should be wary and ask these questions, as the current situation does not only put the reputation – perhaps even the future – of the Journal on the line, but clouds the reputation of all authors who have published in the Journal under the current leadership and puts their publications into a dim light. Their research results equally become the object of doubt given what happened – or rather did not happen – in case of the manuscript of Mr. Bennett.

    Improving the process and involving the advisory board will be too little to remedy the situation. Full transparency is now needed about the exact parameters of the peer review process under the present leadership – not only in the case of Mr Bennett, but generally – so that all authors and readers of the Journal know what kind of machinery they face and what further, hitherto hidden, problems may slumber in the Journal’s inside.

  3. Admin
    8 September 2017 at 5:30 pm

    The following new comment has been received by Prof Anne Peters, in response to this and the Petition also published on this site and Opinio Juris:

    Dear readers,

    The JHIL received this letter and had agreed towards the authors in writing to publish it in the JHIL as soon as possible.

    Publication in JHIL does not imply any agreement or endorsement by the editors or by the academic advisory board of the opinions expressed in an article.

    The selection of articles for the journal occurs through double blind peer review on the basis of their academic quality. In the case of the article on the Jamestown Massacre, the editors were able to obtain only one peer review report.

    The editor-in-chief acknowledges that there were flaws in the review process and apologizes for this.

    The JHIL has recently amended the selection and review procedure in order to strengthen the process.

    The new authors’ guidelines containing the description of the review process can be found on the Journal’s website.

    Anne Peters

    • Ed Brother
      10 September 2017 at 1:06 pm

      The Editorial Board might wish to consider the competence and judgement as well as the academic rigour of the Editor In Chief, as a result of this very clear critique.

      Similarly, the Council of the renowned Max Plank Institute might wish to do the same, as damage to the previously impeccable reputation of that body should be unthinkable.

  4. Tacitus
    19 September 2017 at 9:30 pm

    Now – what a strange development is this? The original message sent in response to the blog by the Editors of the Journal of the History of International Law (JHIL) and posted earlier on 24 August 2017 at 8:53 pm (that is, the message to which my comment above referred), has disappeared and was replaced by a new message of the Editors of JHIL posted at 8 September 2017 at 5:30 pm.

    How did this happen and why? I strongly hope that removing the original response by the Editors was merely a mistake and not an act of colluding with the Editors of JHIL by removing this particularly embarrasing reaction of the Journal Editors in which they agreed that they should not have published Mr. Bennett’s article, without defending him or giving him a right to be heard, and thereby not only casting doubt on the review of that article, but of any other article published in the Journal under the current leadership?

    In the name of transparency and the interest of all authors and readers of the Journal, and in fact the scientific community as a while, this original message should not disappear from the record of the present debate. It should certainly not be covered up. I therefore feel compelled to post it again. Here it is:

    24 August 2017 at 8:53 pm
    The Following message has been received by the editors of this blog from Prof. Anne Peters:

    The editors of the Journal of the History of International Law (JHIL) distance themselves from the political message of the article [by John T Bennett]. The publication of the article in JHIL does not entail any approval or support on their part. We acknowledge that the paper should not have been published in the JHIL. The academic quality of the piece is questionable and it was clearly driven by a political agenda. The review process was insufficient in this case.

    We editors acknowledge that the blog by Aoife O’Donoghue and Henry Jones offers strong arguments against the article. We will change and improve the process and are eager to involve the academic advisory board in this.

    Anne Peters, Emmanuelle Tourme-Jouannet, Randall Lesaffer”

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