January 23, 2008

Francis Lieber and the Code of Conduct

Folks, there is a great article in the American Scholar on Francis Lieber, the Prussian émigré who wrote America's first code of conduct during the Civil War.

During the hot and desperate summer of 1862, a senior American commander found himself consumed with the question of insurgents. Major General Henry Halleck had become general-in-chief of the Union armies in July of that year, and he soon discovered that the army had no laws or regulations to govern its contacts with the bands of irregular Southern forces in the field. A lawyer by training, Halleck found the absence of guidance maddening. Union troops were encountering an array of rebel forces, some uniformed, some not. “The rebel authorities claim the right to send men, in the garb of peaceful citizens, to waylay and attack our troops, to burn bridges and houses and to destroy property and persons within our lines,” Halleck vented in a letter sent on August 6.

Halleck’s correspondent was eager to help. Francis Lieber (1798–1872) was then a professor of history at Columbia College. A Prussian immigrant, he was a military veteran who had recently devoted himself to studying the conduct of war. What’s more, he was a passionate supporter of the Union cause and was keenly ambitious to influence national policy. Less than a year after that first exchange, a short paper Lieber wrote for the general on how international law regards insurgents and guerrillas had blossomed into America’s first code regulating the conduct of its army in warfare.

“Lieber’s Code,” as it soon became known, was widely disseminated, and it deeply influenced the later Hague and Geneva conventions. It is no exaggeration to say that this émigré professor with longstanding connections to the Southern aristocracy made one of the most substantial contributions to the modern law of war. Lieber was acutely aware of the novelty of his project. “It is an honor of the United States that they have attempted, first of all nations, to settle and publish such a code,” he wrote to Halleck.

The code achieved its stature with remarkable speed. Lieber completed the text in March 1863, and it was cursorily reviewed by a panel of generals and quickly approved by President Lincoln. Dispatched to military commanders in May 1863 as General Orders No. 100, it circulated through the army ranks and within a few years had been lauded by a United States Supreme Court Justice as an authoritative expression of the law of war.

Interestingly, Lieber was not in favor of extending rights to insurgents and guerrillas:

Lieber’s good will did not extend to the guerrillas and insurgents that bedeviled Halleck. Those Southerners who engaged in hit-and-run attacks on Union forces and then blended back into civilian life could be treated like “highway robbers or pirates,” he wrote. They deserved none of the benefits of prisoners of war, and they could be summarily executed. Guerrillas, he wrote in his pamphlet on the subject to Halleck, “are peculiarly dangerous, because they easily evade pursuit, and by laying down their arms become insidious enemies; because they cannot otherwise subsist than by rapine, and almost always degenerate into simple robbers or brigands.”

That wouldn't pass in the days of Human Rights Watch and FM 3-24. But the main point -- and enduring lesson -- of Lieber's code was this:

As warfare evolves, then, and as conflicts develop, ethicists and regulators must struggle to keep pace: holding the line where they can, ceding ground where they must.

Please read this article if and when you have the chance. All those interested in the laws of war will find it fascinating.