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 20^th century international law to the early 17^th 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 19^th 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.