From Versailles to the War on Terror

The Ottoman Empire entered World War I only reluctantly. It did so in a bid to maintain empire, and to finally abrogate long-hated “extraterritorial” treaties (called, in English, “the capitulations”). By the mid-19th century, these treaties rendered large numbers of local Ottoman subjects, as well as resident Europeans, exempt from Ottoman law. By war’s end, the Ottomans had lost their empire. And while the treaties themselves became null and void, the concept—and practice—of “extraterritoriality” lingers into our own time.

The status of the Ottoman Empire, along with its extraterritorial treaties, was left in violent limbo at Versailles. True, outright hostilities ended with Versailles. Moreover, the Ottoman Empire’s ally, the Austro-Hungarian Empire, was broken up; therefore, within the old Austro-Hungarian borders, successor states were quickly established and granted sovereign status over their territory. But at Versailles, the Ottoman territories had to wait.

A year later, the Ottoman Empire was dissolved with the 1920 Treaty of Sèvres. Rather than follow the Austro-Hungarian model, which would have transitioned the Ottoman Empire into various sovereign successor states, the Treaty of Sèvres instead created the British and French Mandates to “administer,” on behalf of the League of Nations, the lands that formerly belonged to Ottoman citizens. The Treaty of Sèvres led to a revolt against its terms by former Ottoman officers and to further postponement of the issues at hand, until extended negotiations culminated in 1923 with the Treaty of Lausanne.

With Lausanne, finally, the extraterritorial treaties of the Ottoman Empire were abrogated. But extraterritorialism did not go away. It is lately receiving more scholarly attention.¹ Yet there remains so much more to be said.

The treaties, for example, were studied by US politicians remaking global order after WWI; by Zionists working for the British Mandate in Palestine to create the legal infrastructure for a Jewish state in the 1920s and 1930s; and by jurists of the US military when launching the War on Terror after September 11, 2001. Extraterritorialism, in fact, even provided legal scaffolding for the US invasion of Iraq in 2003, and for its subsequent occupation—whether full or partial—which has lasted ever since.

Ottoman extraterritorial treaties have afterlives that impact the entire world to this day. What can the understudied persistence of extraterritorialism teach us, particularly at a time when the post–World War II global order has clearly unraveled?

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Extraterritoriality sits ill at ease with contemporary notions of sovereignty and global order. Many people mix it up with a more familiar notion, cosmopolitanism. Cosmopolitanism often refers to the notion that we are citizens of the world rather than of a particular nation or state. Sometimes it refers to the ability of some people to use multiple passports and to feel at home in different countries.

Extraterritoriality is different. It refers to a global legal order. A global order including extraterritoriality continued even after the Ottoman Empire was dissolved. Despite declarations from the post-Versailles League of Nations about self-determination for all countries, only some enjoyed rights of sovereignty and self-determination. Many countries had to wait until after WWII, or even later, to gain independence from colonial powers. Others enjoyed formal sovereignty but, in practice, held only partial power over their territory and inhabitants thanks to the continued recognition of unequal extraterritorial treaties in international law.

Extraterritoriality brought benefits to some people. Before WWI, Westerners could travel for business or pleasure to the Ottoman Empire and reside there for years without becoming subject to local law. Some local people in the Ottoman Empire benefitted from extraterritoriality as well. They could gain the legal advantages of citizenship in a Western sovereign state.

My own grandfather Jehiel, a Sephardic Jew from Palestine and a loyal Ottoman who served in its army in WWI, is one of those who benefitted. His grandfather Yaacov had been the Chief Rabbi of Palestine and, as such, an Ottoman official. Through a process that remains unclear, the family gained extraterritorial status with Italy. After WWI, with the dissolution of the Ottoman Empire, Jehiel was but “semi-civilized” and had no clear sovereign-state affiliation. His application for United States citizenship in 1929 makes this clear. Like everyone else applying for citizenship in the United States during the period, he had to renounce “all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty.” In my grandfather’s case, this involved renouncing allegiance particularly to “Victor Emmanuel III, King of Italy and (or) Republic of Turkey and (or) Present Sovereignty in Palestine.”

Ottoman extraterritorial treaties first emerged in the 16th and 17th centuries. Territorial sovereignty as we know it did not yet even exist.² Extraterritorial agreements guaranteed safe passage for sojourners and gave protection to flows of commerce across land and sea.

Such agreements—granted, as a beneficence, by a powerful Ottoman sovereign to backward Western polities—were a norm rather than an exception at that time, even in Europe. Such treaties were employed, for example, in the Hanseatic League and in the Byzantine Empire, whose legal instruments the Ottomans adopted when they conquered Constantinople in 1453 and renamed it Istanbul.

But by the 19th century, in a world order based on territorial sovereignty, these extraterritorial treaties had been converted by European states into binding international public law, in a manner the Ottomans were unable to prevent. Thirteen “Christian nations of Europe” and two in the New World possessed extraterritorial privileges in Turkey by the middle of the 19th century.³ The last “Christian nation” to sign a capitulation with the Ottoman Empire in 1830—the United States—was reluctant to give up the rights of extraterritoriality these treaties conferred, even a century later. The United States continues to exercise some of these powers in the 21st century. It took a great deal of work to figure these matters out at the last conference associated with Versailles—at Lausanne. “No problem which confronted the Lausanne Conference contributed more to its difficulties than … the capitulations.” They had long worked well “in the supreme interest of commerce,” but by 1923, they had become “an instrument of economic enslavement.”⁴

These were the words of Lucius Ellsworth Thayer, an American attorney who served with the American Field Service in France during WWI. Thayer sent legal opinions to the American delegation at the Conference of Lausanne concerning the contentious issue of the capitulations and, in his still-cited 1923 article on the capitulations, identified himself as “formerly engaged in work with the Near East Relief in Anatolia.”⁵

Thayer in turn cites the writings of Sir Edwin Pears (1835–1919). (Pears wrote two books, Turkey and Its People [1911] and Forty Years in Constantinople [1906], in the genre of Ottoman Empire travel literature, which had been common a century earlier.)⁶ Pears was a British barrister who lived in Constantinople for 40 years, practiced law in British consular courts established on the basis of those extraterritorial treaties, and played leadership roles in the British “colony” (as it was often called) of Istanbul.

Pears was an administrator of the British colony. But this “colony” must be understood differently than common associations with the term would suggest.⁷ This situation does not resemble familiar accounts of Europeans serving in official positions in colonial empires, like in British-ruled India. Instead, Pears helped run an extraterritorial colony for British citizens inside the sovereign Ottoman Empire, British citizens who lived and carried out commerce with ever-increasing numbers of locals with extraterritorial status acquired through affiliation, affinity, and purchase.

The status of the Ottoman Empire, along with its extraterritorial treaties, was left in violent limbo at Versailles.

Given the number of Christian nations holding extraterritorial treaties before the end of WWI, there were many nationalities on offer to non-Muslim Ottoman subjects, and many sovereignties to be negotiated. In a time of uncertainty in Palestine, for example, my grandfather found it wise to cite a multiplicity of possible sovereign affiliations, including the Italian state, the British Mandate in Palestine, and the new Turkish Republic.

Extraterritorial colonies inside the Ottoman Empire were dissolved at Lausanne along with the empire. But the powers that had been contained in those colonies, at least for the British and French, spread and acquired new powers as “Mandates” with sovereign authority over entire regions of the former empire (now split up between the British and the French Mandates). Matters were indeed unclear in Palestine, for example. Here, regimes of extraterritoriality not only lingered; they were mobilized to shape the course of Zionist settlement in Palestine.

A generation after Thayer and Pears did their work as administrators of extraterritorial colonies, Norman de Mattos Bentwich (1883–1971) became a bureaucrat of the British Mandate. As attorney general of the British Mandate government of Palestine until 1933, Bentwich was another expert on the Ottoman capitulations. He taught law at the Hebrew University following his service, laying further administrative groundwork for the legal system of a Zionist state in Palestine. Bentwich put to work his expert knowledge of the Ottoman capitulations to set up a “modern legal system” to succeed Ottoman jurisprudence.⁸

Bentwich’s expertise in the extraterritorial capitulations was crucial. He framed the Ottoman capitulations as a remnant of Roman law (citing here Sir Edwin Pears). Roman principles of the “personality of law” predated territorial sovereignty and appeared much more legitimate and “Western” to the great powers of Europe.

In Bentwich’s scholarship, and in his work as bureaucrat of the British Mandate, extraterritoriality gave the grounds in international law for implanting in Palestine a self-governing Jewish colony, or yishuv. This logic merged local Ottoman Jews into the same category as the new, and quite different, European Jewish settlers.

“Nation,” in Bentwich’s framing, was the extraterritorial nation of the Ottoman Empire or the semiautonomous confessional communities that Western scholars misnamed a “millet system.” But nation was a slippery concept. It began as a Roman or Ottoman notion of nation, distinct from territory/territorialism.⁹ Indeed, the borders of the Israeli state have yet, to this day, to be declared. This is part of the story through which the Jewish National Fund and infrastructures of the Jewish Yishuv in Palestine took root in the British Mandate.

Bentwich’s learned knowledge of the Ottoman capitulations helped him create the legal infrastructure for claiming the continuous presence of a Jewish nation in Palestine since Roman times. This nation, in Bentwich’s vision, possessed rights to self-determination, as a nation with rights to a sovereign state, claimed in the post-Versailles world.

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Thanks to Bentwich’s extraterritoriality, Jews in Palestine became a post-Ottoman Roman-like “nation,” with rights to settlement and self-rule. On this point, he was continuing a logic of European settlement in the lands of the Ottoman Empire—a logic that goes back to one of the often-cited “fathers of international law,” Alberico Gentili.

Back in the late 16th century, Gentili had argued that the Ottoman sultan was clearly sovereign over his domains. And yet, Gentili nevertheless believed that Europeans had the legal right to settle in the sultan’s domains, due to Europeans’ “greater technical capacities” to “improve” land deemed “unproductive.”¹⁰

After Lausanne, the Republic of Turkey was granted sovereignty over its (contested) territorial borders. But under the British Mandate in Palestine, the imperative of “improvement” continued as a basis for European settlement. This post-Versailles imperative functioned just as it had for Gentili centuries earlier, but this time in Palestine alone.

Zionists were perfectly aware that people lived in Palestine and that there was already a vital world of commerce in Palestine.¹¹ Nevertheless, Zionists utilized aspects of extraterritorialism incorporated into international law after Versailles to claim that Palestine was terra nullius and thus available for settlement by Europeans. Viewed in this way, Zionism transported extraterritoriality into the 20th century.

What can the understudied persistence of extra-territorialism teach us, particularly at a time when the post–WWII global order has clearly unraveled?

The vastly different fates of the Austro-Hungarian Empire’s devolution at Versailles and its ally’s, the Ottoman Empire’s, at Lausanne were no accident. For one thing, the rushed recognition of successor states to the Austro-Hungarian Empire was part of a hurried effort to prevent the spread of bolshevism further west into Europe.¹² But the difference in fates was also a simple continuation of the epistemological and political challenge posed by the Ottoman Empire to an international order formed with Europe at its center.

The Ottoman Empire had posed a problem to international law: the Ottoman sultan was recognized as sovereign by early theorists of international law. But by the 19th century, the Ottoman Empire was deemed inadmissible to international society.

This debate recast an old question: What was the Ottoman Empire in relation to Europe? Had it been Europe’s eternal enemy since the Crusades? Or, given the fact that the Ottoman Empire was geographically part of Europe and incorporated the legacy of Roman law, was the Ottoman Empire in fact a European power? The concept of the semi-civilized marked this tension.

Thomas Naff put the logic concisely: “Even though a significant portion of the Empire was based in Europe, it cannot be said to have been of Europe.”¹³ The Ottomans were not part of international society “because they shared only a few of Europe’s interests, principles, and norms.”¹⁴ In his classic work, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities (1883), James Lorimer gave this situation a name: the semi-civilized.

The opposition between the “civilized” and the “primitive” has been the focus of countless critiques of colonialism and of anthropology’s role in colonialism. These approaches leave the semi-civilized completely out of view.

To do so is a mistake. Lorimer divided the world into three types of humanity: “civilized humanity,” “barbarous humanity,” and “savage humanity.” The “non-progressive races” of “savage humanity” might remain forever outside the “family of nations.”¹⁵ But the “semi-civilized” had the potential to progress. This potential of the semi-civilized to progress to civilization became the ideological groundwork of the Mandate.¹⁶

Viewed from the Western Front, the Treaty of Versailles ended the disasters of the Great War and launched the world into a new global order. Things could not look more different from the perspective of the Eastern Front.¹⁷

The problematic legacies of Versailles extend much farther than the systemic racism of its most famous architect, Woodrow Wilson. The War on Terror and the US invasion and occupation of Iraq show how examining these issues is not merely an academic pursuit. Dan Stigall, director for counterterrorism at the National Security Council under President George W. Bush, is yet another expert in extraterritorialism. His 2017 book, The Santillana Codes: The Civil Codes of Tunisia, Morocco, and Mauritania, deals with jurisprudence in North Africa since the Ottoman Empire, including extraterritorialism and the capitulations.

Stigall’s studies of extraterritorialism emphasize the importance of the Ottoman capitulations and of extraterritorialism for new modes of governance since the War on Terror.¹⁸ Stigall argues that “extraterritorial law enforcement” in “ungoverned spaces” can be conducted without military involvement, in accordance with international public law.¹⁹ He bases his argument for the legality of extraterritoriality on his analysis of the capitulations and extraterritoriality, relying on the expertise of none other than Bentwich, Thayer, and Pears.

Despite ongoing claims about “ungovernability,” transhistorical blood feuds, or the racialized nature of “the Arab” and “the Muslim,” there is, in fact, nothing exceptional about war and conflict in the Middle East. The region was left with the obscured but violent legacies of notions like the semi-civilized and extraterritoriality. The War on Terror brought these concepts back to center stage. Blowback from weaponized techniques of extraterritoriality impact the United States as well as the Middle East. One hundred and one years after Versailles, the twinned concepts of extraterritoriality and the semi-civilized continue to shape our world in ways that can no longer be overlooked.

 

This article was commissioned by Joanne Randa Nucho.