Letter to the Editors of the Journal of the History of International Law

[This letter was sent to the editors of the Journal of the History of International Law on 29 August 2017 and published at Opinio Juris. It is republished here with permission.]

Dear Editors,

We are writing to express our grave concern about the publication of an article entitled ‘The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention’ in the latest issue of the Journal of the History of International Law. We find the decision to publish this article strange to understand to the extent that it combines dubious anachronisms and legal framings, problematic application of legal doctrine, selective presentation of facts and quotations, and outright contradictions and falsehoods. Notably, it is difficult, if not outright impossible, to reconcile the different parts of the argument with each other as well as with the conclusions of the article. For even if one was to ignore issues of historical accuracy and legal argumentation and accept the author’s arguments, this does not support in any way the conclusion that ‘Jamestown was radically disproportionate to any violence committed by the English, before or after 1622’ (p. 48), or that ‘a sense of self-respect, or at least … a sense of self-preservation’ (ibid) was the core or the motive of settlers’ actions and attitudes post-1622. After all, the article repeatedly emphasises the distinction between (genocidal) intent and motive only to collapse the two when it comes to justifying the acts of English settlers. In other words, this is a piece of work that fails in relation to its own terms as well as in relation to general standards of academic argumentation and rigour.

Since the said article is of considerable length and there are significant problems on virtually every page, we will only focus on a limited number of issues while emphasising that our enumeration is not exhaustive. To begin with, it is notable that even though the author argues that the Powhatan targeted the settlers indiscriminately and without respect for the distinction between ‘combatants and non-combatants’ (p.1), he also goes to great lengths to argue that no armed conflict (or ‘war’ in his own words) was taking place anyway. In any event, the existence, or not, of an armed conflict is doctrinally irrelevant for the finding of the crime of genocide. A review process exhibiting minimal familiarity both with international humanitarian law and the law of genocide would have pointed out these argumentative discontinuities. We find it impossible to find an explanation of what brings together combatants, the absence of armed conflict and the potential perpetration of genocide, since legal doctrine does not. We suspect that the author’s intention to portray the Powhatan as barbarians who embarked on senseless violence out of the blue might shed light on the structure of the article to the extent that international law fails to do so.

Moreover, we are surprised that the peer review process did not challenge the fact that at least the first part of the article is grounded on the argument that no other ‘single massacre’ (p. 5) claimed so many lives as the events in Jamestown. Since the ‘ratio of deaths per incident’ is a criterion as such unknown to international law, and hardly defensible from a moral or political perspective, this is an argumentative move worthy of serious scrutiny. The fact that this arbitrary criterion is clearly linked to an effort to ignore, underplay and eventually justify the prolonged, systematic and (alas) mostly successful process of exterminating Native Americans, dispossessing them of their land, and destroying their society and culture, should have raised even more questions. Indeed, even though Bennett focuses on English settlers, he fails to situate the events within a broader historical context of empire and colonisation as a process that did not simply encompass occasional, unconnected outbreaks of mass violence, but was specifically premised on continuous expansionism to the detriment of the existing occupiers of the land that culminated in their dispossession. The word ‘empire’ does appear twice in the article, but only in order to describe the political relations between the Powhatan and other Native Americans (p. 14, p. 17). Even if one disagrees with our assessment of imperialism and colonisation as articulated above, it would still be difficult to contest the prima facie relevance of this historical context to the discussed topic.

In this respect, it does not come as a surprise that the text is replete with references to the supposedly secretive, insidious and treacherous ‘nature’ of the Powhatan (p. 21, p.48). The Powhatan purportedly exploited the friendship and kindness of the English settlers, who kindly allowed them to enter their villages. What does, however, come as a surprise is that apparently no one involved in the publication of the piece raised questions about these descriptions of the Powhatan or about the uncritical, or rather approving, usage of passages that refer to them as ‘savages’ (p. 21, p. 22, p.35, p. 37 fn 191). Moreover, we are convinced that a review process of minimum academic rigour would have at least raised concerns about the legal, political or moral foundations that rendered the Powhatan ‘guests’ in their own land.

It is worrying and unsettling that the Journal of the History of International Law considered it appropriate to publish a piece that contains self-contradictory arguments, poor application of legal doctrine, imprecise usage of legal language and highly selective use of facts in order to argue in a fairly straightforward manner that the almost complete physical and cultural destruction of Native Americans was an act of self-defence and self-preservation. We are particularly astounded because this has been a standard trope to justify imperial violence, domination, and expansionism for centuries. From the 1857 Indian Rebellion to ‘Jewish financial terrorism’ the white racist imaginary is structured around supposed existential threats to which it is responding ‘defensively’. Nowadays, arguments about ‘white genocide’, ‘anti-white racism’ and the ‘white pride and self-preservation’ are at the centre of the reemergence of the most aggressive, dangerous and dominating strands of the far right. While Native Americans are struggling to save the remains of their land from destructive pipelines facing tremendous police brutality Indigenous Australians are demanding land rights and a treaty that will recognise pre-existing sovereignty over the land, and all indigenous peoples across the world are struggling against structural racist oppression and inequality, international lawyers should reflect deeply and carefully on the past of the discipline and how it enabled these processes of dispossession and extermination. Allowing poorly executed, pseudo-scientific and very thinly veiled racist propaganda to pass as legitimate scholarship is emphatically not the way to do that.

This event has profoundly challenged our confidence in the reviewing and publishing rules and practices of the Journal of the History of International Law. We hope that the response of the editors will be swift and appropriate. Otherwise, we would consider it very difficult to submit our work for publication, perform peer-review duties or be otherwise associated with it.

Yours sincerely,

Antony Anghie (Professor, Faculty of Law, National University of Singapore)

Grietje Baars (Senior Lecturer, City Law School)

Bill Bowring (Professor, School of Law, Birkbeck College)

Arnulf Becker Lorca (Visiting Lecturer in International Relations, Brown University)

Nathaniel Berman (Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture, Brown University)

Yassin M. Brunger (Lecturer in Human Rights Law, School of Law, Queen’s University Belfast)

Ruth Buchanan (Professor, Osgoode Hall Law School)

Madelaine Chiam (Lecturer, Law School, La Trobe University)

Cyra Akila Choudhury (Professor, Florida International University College of Law)

Ann Curthoys (Emeritus Professor, School of History, Australian National University)

Sara Dehm (Lecturer, Faculty of Law, University of Technology Sydney)

Karen Engle (Minerva House Drysdale Regents Chair in Law, The University of Texas at Austin)

Luis Eslava (Senior Lecturer, Kent Law School)

Michael Fakhri (Associate Professor, University of Oregon School of Law)

Michelle Farrell (Senior Lecturer, School of Law and Social Justice, University of Liverpool)

Andrew Fitzmaurice (Professor, Department of History, University of Sydney)

Günter Frankenberg (Professor of Public Law, Legal Philosophy and Comparative Law, Goethe University Frankfurt)

James Thuo Gathii (Wing-Tat Lee Chair in International Law and Professor of Law, Loyola University Chicago School of Law)

Ann Genovese (Associate Professor, Melbourne Law School)

Ben Golder (Associate Professor, University of New South Wales Law School)

Matthias Goldmann (Junior Professor of International Public Law and Financial Law, Goethe University Frankfurt)

Kirsty Gover (Associate Professor, Melbourne Law School)

Maj Grasten (Assistant Professor, Department of Business and Politics, Copenhagen Business School)

Markus Gunneflo (Senior Lecturer and Postdoctoral Fellow, Department of Law, Lund University)

John D Haskell (Senior Lecturer, Manchester Law School)

Kevin Jon Heller (Associate Professor of Public International Law, University of Amsterdam, Visiting Professor of Criminal Law, SOAS)

Henry Jones (Assistant Professor, Durham Law School)

Ioannis Kalpouzos (Lecturer, City Law School)

Adil Hasan Khan (McKenzie Postdoctoral Fellow, Melbourne Law School)

Sara Kendall (Senior Lecturer, Kent Law School)

Rachel Killean (Lecturer, School of Law, Queen’s University Belfast)

Robert Knox (Lecturer, School of Law and Social Justice, University of Liverpool)

Tor Krever (Assistant Professor, University of Warwick)

Dino Kritsiotis (Professor of Public International Law, School of Law, University of Nottingham)

Andrew Lang (Professor, Department of Law, London School of Economics and Political Science)

Mark McMillan (Professor & Deputy Pro Vice-Chancellor (Indigenous Education and Engagement), RMIT University)

Shaun McVeigh (Associate Professor, Melbourne Law School)

Susan Marks (Professor of International Law, Department of Law, London School of Economics and Political Science)

Anne-Charlotte Martineau (Senior Researcher, CNRS, Ecole Normale Supérieure – Paris)

Mazen Masri (Senior Lecturer, City Law School)

Natasa Mavronicola (Senior Lecturer, Birmingham Law School)

Frédéric Mégret (Associate Professor, Faculty of Law, McGill University)

Karin Mickelson (Associate Professor, Allard School of Law, University of British Columbia)

Dirk Moses (Professor of Modern History, University of Sydney)

Samuel Moyn (Professor of Law and History, Department of History, Yale University)

Claire Mummé (Assistant Professor, University of Windsor Faculty of Law)

Usha Natarajan (Associate Professor, Department of Law, American University in Cairo)

Vasuki Nesiah (Associate Professor of Practice, New York University)

Gregor Noll (Professor, Department of Law, Lund University)

Liliana Obregón (Associate Professor of Law, Universidad de los Andes)

Aoife O’Donoghue (Professor, Durham Law School)

Obiora Chinedu Okafor (Professor & York Research Chair in International and Transnational Legal Studies (Senior Tier), Osgoode Hall Law School)

Anne Orford (Redmond Barry Distinguished Professor, Michael D Kirby Chair of International Law & ARC Australian Laureate Fellow, Melbourne Law School)

Dianne Otto (Professorial Fellow, Melbourne Law School)

Umut Özsu (Assistant Professor, Department of Law and Legal Studies, Carleton University)

Sundhya Pahuja (Professor, Melbourne Law School)

Maia Pal (Lecturer in International Relations, Oxford Brookes University)

Alice Panepinto (Lecturer, School of Law, Queen’s University Belfast)

Rose Parfitt (ARC Discovery Early Career Researcher, Melbourne Law School/Lecturer, Kent Law School)

Charlotte Peevers (Lecturer in International Law, School of Law, University of Glasgow)

Nicolás M. Perrone (Assistant Professor in International Law, Durham Law School)

Balakrishnan Rajagopal (Associate Professor of Law and Development, Department of Urban Studies and Planning, MIT)

Surabhi Ranganathan (University Lecturer in International Law, Faculty of Law, University of Cambridge)

Akbar Rasulov (Senior Lecturer, School of Law, University of Glasgow)

John Reynolds (Lecturer, Department of Law, Maynooth University)

Teemu Ruskola (Jonas Robitscher Professor of Law, Emory University)

Hani Sayed (Associate Professor and Chair, Department of Law, American University in Cairo)

Christine Schwöbel-Patel (Senior Lecturer, School of Law and Social Justice, University of Liverpool)

Ben Silverstein (Postdoctoral Research Fellow, Department of History, University of Sydney)

Thomas Skouteris (Associate Professor, Department of Law, American University in Cairo)

M Sornarajah (CJ Koh Professor, Faculty of Law, National University of Singapore)

Cait Storr (Lecturer, Melbourne Law School)

Ntina Tzouvala (Laureate Postdoctoral Fellow, Melbourne Law School)

Fabia Veçoso (Laureate Postdoctoral Fellow, Melbourne Law School)

Sujith Xavier (Assistant Professor, Faculty of Law, University of Windsor)


For more on this, see

The Jamestown Massacre: Rigour & International Legal History by Aoife O’Donoghue and Henry Jones 

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