“It Is Us Today, It Will Be You Tomorrow”: The Abyssinia Crisis and the Fall of Legal Positivism
This article explores the Italian invasion of Abyssinia in 1935–6, and reflects upon challenges met during that time while seeing how they shaped the legal theories of Natural Law theory and legal positivism. Alongside Japan’s invasion of Manchuria in 1931, the Italian invasion of Abyssinia marked the deep flaws within the League’s system and is considered by most historians to have been the prelude to the global bloodbath that was the Second World War. That by itself warrants the war great significance and a need to study its legal implications.
Furthermore, the fall of Abyssinia was a diplomatic crisis that saw much wider reaction from the West than 1931 and is therefore more relevant in studying and understanding the modern history of legal philosophy. It is further hoped that this helps understand implications of the lessons learnt at the time in the present United Nations system and its reaction to various international crises that are seen in the world today.
Beginning from the 1870s, various empires across Europe began showing great interest towards the continent of Africa and undertook various policies to bring large swathes of territories under their rule. In what was called the “Scramble for Africa”, numerous explorers, merchants, soldiers, and pastors, with active endorsement from their respective governments, began penetrating the depths of the desert dunes and thick jungle. By 1905, only two African states escaped the spread of European influence: Liberia, a country formed by freed African slaves; and Ethiopia — known at the time as Abyssinia — an ancient empire dating back to the 12th century.
Abyssinia in particular, being situated in a strategic location for shipping and wedged between British and French colonies in Africa, was constantly under military aggression by various empires — yet the Empire of Abyssinia successfully defended its sovereignty against all odds. In a particularly unfavorable war against Italy, the Abyssinian leader Menelik II routed the Italian army and forced them to return to Eritrea after the Battle of Adwa. Through this success the Abyssinian emperor made a mark in history for being the first leader who used warfare successfully to halt the encroachment of a colonizing power. On the other hand, this meant a great loss of face for the Italian Empire — one which the Italians never forgave.
During the Great Depression of the 1920s and 1930s, various states such as Spain, Italy and Germany began to see a rise in radical right-wing ideologies. Followers of these ideologies called for heavy intervention within the domestic economy, the mass mobilization of the population for industrialization, and revanchist expansionism. Italy led the way for this ideology, which would later be called fascism — stemming from the term “fasces”, a cultural artefact from the Roman era. Led by charismatic leader Benito Mussolini, the rise of fascism signaled a new era for Italy and Italians, such as a better economy and stronger military, as is fit for the great power it strove to become. It also meant Italy would seek to settle old scores with its past foes, ones which had broken its reputation.
Outlined through his numerous rants on restoring Roman glory, Mussolini made an unrealistic plan to take over much of the territories once occupied by the old Roman Empire: Italy was to establish Albania as a protectorate; it was to reconquer North Africa; it was to weaken Yugoslavia. And Italy was to also recover its glory by retaking Abyssinia. As the fortieth anniversary to the Battle of Adwa — having occurred on March 1st 1896 — approached, Italy prepared for war for such an endeavor. Entire divisions were mobilized, and new weapons were tested in public at the ancient capital, with Mussolini going even so far as to participate in the tests.
The preludes of war began in the remote oasis of Walwal in eastern Ethiopia, close to the Somali border. In clear violation of the Italo-Ethiopian Treaty of 1928, Italian soldiers moved more than 50 miles into Ethiopia to establish defensive structures around Walwal, where they soon engaged in constant skirmishes. The Abyssinian government, fearing the worst, sent to the League of Nations headquarters in Geneva an urgent telegraph on January 3rd, 1935:
In reference my telegram concerning Italian advance on Gerlogubi, their troops are massed before Gerlogubi and committed aggression there against Abyssinian garrison Dec. 28 10 A.M. stop [sic] Two Abyssinians killed two wounded stop [sic] Italian aircraft continually flying over Gerlougubi and tanks are in neighborhood stop [sic] Abyssinian Government requests in application Article XI of Covenant every measure effectually to safeguard peace be taken stop [sic]
The desperation is clearly evident. The Abyssinian government was aware of the consequences if Italy decided to launch a full assault, using a pincer attack with Eritrea from the north and Somalia from the east. Their only chance of survival was to rely on the League and ask for its support. Between the beginning of 1935 and October 3rd(when the Italians launched a frontal assault against Ethiopia) the Abyssinian government made multiple pleas to the League of Nations, either in the form of formal protests or calls to action against Italy. Neither were ultimately successful, as the pleas were shouted over by other territorial disputes around the world and the calls to action were bogged down in negotiations.
By the end of September 1935, when war was imminent, the League had passed resolutions concerning several embargoes which saw a rise in global consensus against the Italian aggression. However, it failed to stop Mussolini from invading Abyssinia.
The war was swift and brutal. The Italian invasion, which began with armored cars and airplanes, were rendered useless against mountainous terrain and nonexistent roads. As the Ethiopians valiantly fought on, it became clear that the war was yet to see any decisive victories for Italy. By spring 1936, as the rainy season began to bog down Italian assaults even further and the League requested both Abyssinia and Italy negotiate a peace treaty, Mussolini made a final, violent attempt to capture Abyssinia: he allowed the bombing on civilian populations and use of chemical weapons in the battlefield.
Entire Abyssinian armies became disintegrated, all for the need of the Italian Empire to vindicate its disastrous war against Ethiopia nearly four decades prior and somehow justifying its actions with the age-old White Man’s Burden: as the Italian ambassador to the United States aptly put it, “…we wanted to build roads which provide avenues of commerce and communication; to eradicate tropical diseases as your great country did in the Philippines and the Panama Canal Zone; to cultivate fields which now lie idle; to unearth for human use the riches of the undersoil that lie buried.”
By early May of 1936 the Emperor of Abyssinia fled his dominion for London, the Italians marched into the capital of Addis Ababa, and the Second Italian-Abyssinian war was effectively over.
Controversy and Debate
There were two large, conflicting, opinions upon the matter of Italian aggression during the Abyssinian crisis. The first was obviously one of outrage, one which found Italian claims on Abyssinia unfounded and against the general decency a state should demonstrate. This consensus became broader as Italy showed great brutality in treating the peoples of Abyssinia during the invasion of Abyssinia. Reports of Italians killing innocent civilians came in daily in Western newspapers and turned the tide of sentiments and opinions against Mussolini. Particularly for African-Americans, their identification with the people of Africa meant many were “disturbed and anxious” by the situation.
The Empire of Italy had broken four international treaties — The Covenant of the League of Nations, the Kellogg Pact, the Italo-Ethiopian Treaty of 1928, the Tripartite Treaty of 1906 — yet there was nothing the League could do about it. Cynicism was rampant in Geneva at the League of Nations headquarters, as they were yet again unable to stop expansionist empires from violating the sovereignty of weaker states.
As international relations scholar Alfred Zimmern asked in a Foreign Affairs article, “And had not the League’s handling of the Sino-Japanese and the Chaco disputes induced amongst Geneva habitués mood of defeatism — not to say cynicism — which reached its height during the steady transport of Italian troops to Eritrea and Italian Somaliland in the course of the past summer?”
The predominant consensus, however, was one in favor of Mussolini. This view was particularly shared between the French and British governments — having to deal with both the rise of Soviet bolshevism and Nazi Germany, it was a preferable line of foreign policy that Italy be made on “our side”. Numerous deals, both public and secret, were held between the three nations upon the matter of Abyssinia. From London to The Hague and Geneva, British, French, and Italian diplomats attempted to work out a solution to Italy’s need to expand — without, of course, the opinions or advice of their Abyssinian counterpart.
These conferences also actively sought to sabotage Abyssinia’s plan to seek justice at the League: both Italy and Abyssinia were chastised for causing the Walwal incident; both Italy and Abyssinia were embargoed as a result; only by October 1935 — nearly eleven long months after the beginning of the conflict between Abyssinia and Italy — was Italy legally defined as the “aggressor” of the conflict and measures were taken to sanction Italy only. Led by the Italian government, people began to voice the opinion that the League was “rigged” against Italy as a rising power, and that the territorial expansion was legally justified. As was eloquently described by Italian ambassador to Britain Dino Grandi:
This understanding has been renewed of late years by the similarity of our views as to the best way of facing Europe’s political exigencies, a common dislike for the rigidity of abstract formulae, and an innate sense of justice in the two peoples -justice based on an understanding of mankind, which alone makes it possible to settle problems in reality and not merely in form. Justice and legality are not identical. There are treaties, pacts and agreements which must be respected and honestly carried out; but over and above treaties, pacts and agreements there are the claims of good sense and equity which must be satisfied. International problems are not merely matters for legal and coercive settlement; they are essentially problems of social order, and social order is maintained only by an earnest effort to satisfy the needs of the peoples.
As a learned scholar in international law and foreign policy, Grandi elaborately constructed a logic which attempted to justify the reasons why it was imperative Italy invaded Abyssinia: as Italy was now a stronger power than before, and the people of Italy had several united “national aspirations”, it was only logical that the League be modified to fit such needs.
Evaluation and Analysis
The Abyssinia crisis and the debate surrounding it deserves great interest. Several facts are yet to be explicitly mentioned and only implied that are significant factors in the discussion — both Italy and Abyssinia, for one, were both members of the League. The former was one of the four main powers who remained victorious after WWI, and Ethiopia applied to become a member and was so by 1923.
Abyssinia had broken international treaties of her own: despite being a signatory to the Brussels Anti-Slavery Acts of 1890 and ratifying the Slavery Convention of 1926, Ethiopia continued to be unsuccessful in suppression of the slave trade. Similar Brussels treaties regarding alcohol and arms trade were not enforced.
During the period 1935–1936 Italy and Abyssinia weren’t the only countries with territorial disputes. There were so many disputes at the same time, as a matter of fact, that it is entirely possible that Abyssinia’s pleas and urges were only half-heartedly listened to until it was too late because of sheer bureaucracy. At any rate, the Abyssinia crisis was much more complicated than a simple aggression and invasion by a large power, and needs further analysis to understand how it affected legal theories and scholars at the time.
Both the justification and criticism towards the Italian invasion offers much insight to how both Natural Law theory and legal positivism were treated at the time. It is clear that many viewed the contemporary League of Nations system both ineffective and hindering. With the Franco-British dominance over the overarching institution and the absence of the United States, the League was hardly capable of establishing universal consensus over any matter.
Furthermore the lack of an “executive” — as was pointed out by Grandi — makes the establishment impossible to enforce any law passed by it: “Parliamentary institutions, in fact, are quite out of keeping with a League of Nations. The League does not correspond to any parliament, because every parliament is connected with an executive power, and the League of Nations possesses no executive worthy of the name.” Further according to Grandi, the institutionalization of “civitas maxima” that the League offers hinders international disputes and diplomacy; the organisation, supposedly, “expands” various issues between states instead of solving them by bringing in unnecessary parties to have a voice on the matter; it forces great powers against each other instead of cooperating as under “natural” circumstances.
Thus it is clear that, in one perspective, natural law theory has trumped legal positivism — as was established by Mussolini and established multiple times by various legal scholars, the various expansionist powers such as Japan, Bolivia/Paraguay, and Italy proved that a more organic form of the “society of nations” — the “civitas maxima” Von Wolff talks of — was coming into play. The League was now a “market-place” where Britain, France and Italy — or whichever country came to become a major power — could wield power over the smaller, weaker nations. According to Benito Mussolini and those who supported his expansionist vision of Italy, that was the just way of nations.
This is, of course, a fallacy. Italy has proven time and time again the need to uphold legal positivism whenever it served its purpose. On multiple occasions the Italian ambassador to the League of Nations has attempted to justify the breaching of the Kellogg Pact — the purpose of which was to renounce war as an instrument of national policy and which Italy happily breached by invading Abyssinia — was legally justified due to British reservations on the treaty.
While Italy has duly noted that reservations to international treaties by one nation concerned all signatories for being an integral part of the document, it was also found that the British reservation concerned the right to protect non-signatories upon the circumstances of war — specifically Egypt and Iraq — and not the right to invade another country so outrageously as Italy had done. The fact that Italy felt the need to justify its actions using existing treaties and agreements proves that its argument on how the League of Nations is “thwarting and [making] discontent” Italy and the Italian people is flawed. Italy had no care for either legal positivism or natural law theory. Italy was unable to properly conduct its diplomacy and foreign policy through the League of Nations because the Empire of Italy did not intend to follow its rules and abide by its nature in the first place — for the League was by nature democratic, and Italy was not.
As its later actions in North Africa and Eastern Europe showed, all it cared of was bloodthirsty territorial expansion — one which neither men nor laws could stop unless a consensus was brought forth. And in a world such as the one where Abyssinia was invaded, where more than half of the world’s territories were colonies and imperialism was rampant, such a consensus was not to be formed. Legal positivism did not fail the world — the world at the time failed legal positivism.
Unlike what many may be led to believe — that the Italian invasion of Abyssinia was merely one of numerous examples in history which proved natural law theory and legal realism right — the League was unable to stop Abyssinia from becoming invaded because legal positivism is unable to function under circumstances where despotism and imperialism was so rampant. If the Allies heeded the words of Benito Mussolini and, instead of transforming the old League to the United Nations, decided to have no such institution at all, the world would be bloodier than the one we live in right now — small countries would invade each other at dubious rationales and mere whim; proxy wars would never end; the globe would be divided between spheres of influence; the world would abound with terror beyond what we may possibly imagine.
The United Nations is the only institution, the only internationalist instrument, that ties the countries together and force them to come to agreements and settlements. The United Nations is the only place where nations, small or large, are legally equal. Under no world of natural law would the global powers allow such an understanding of treaties and laws, if there exist any. Then the question arises — what of Ukraine? What of Rwanda? What of Syria? Would have the crises been better or worse off without the United Nations?
Certainly, individual cases such as Syria or Crimea could be solved in a quicker fashion between, say, Russia and the United States. However the situation could spiral into a proxy war that bleeds into neighboring states, where “genocide” never exists, only victory or defeat; where terrorist attacks come not as surprises but as a fact of life across the world; where the struggle between states and individuals/sub-national groups — the true nature of 21st-century conflicts — come fully out to the open in its bloodiest form. We have moved beyond “natural law” and 16th-century Europe, from the perpetual blood and horror not because of the balance of states but because of legal positivism and the United Nations. And thus we live in a world of relatively peaceful coexistence instead of a world divided between “Italies” and “Abyssinias”.