American Scholar takes a look at the Lieber Code, formalized in 1863 by the US Army as General Orders No. 100. This was one of the first formal codes concerning the conduct of war, and is the basis of the modern ones such as the Hague and Geneva conventions. The author, Francis Lieber (1798–1872), was an interesting character in his own right. He was a Prussian, a former soldier who had fought at Ligny and Namur (preliminaries to Waterloo), where he had been severely wounded. An academic by trade, Lieber spent considerable time in the South at Charleston. Though he despised the institution, he bought several slaves to run his household. A Unionist (though he kept it concealed to protect his position), he left for New York’s Columbia University in 1857. In 1862 Gen. Henry Halleck tapped him to write a legal code for military operations, primarily on how to deal with irregular forces. Lieber’s family exemplified the divisions the war brought on. His eldest son Oscar joined the Confederacy and was killed in 1862 at Williamsburg. Another son, serving with the Union, was badly wounded.
Yet it is debatable what effect Lieber’s code had on the war. There were, under the rubric of military necessity, loopholes big enough to march an army through.
“Union generals showed scant interest in the code and soldiers none,” concludes the historian Harry S. Stout. What influence it did have, he continues, leaned in the direction of latitude. The code “gave Lincoln and his generals what they needed as they contemplated a new war that would deliberately invade civilian lives and properties.” Another scholar is even harsher. “Often touted as a humanitarian milestone,” writes Mark Grimsley, “Lieber’s code was thoroughly dedicated to providing the ethical justification for a war aimed at the destruction of the Confederacy.” This may be too harsh. A Union hardened to war and bent on victory needed no scholarly treatise to clear the way for Sherman’s march.
Speaking of Sherman, the Lieber Code did little to inhibit him, as I detailed in my review of Deborah Petite’s The Women Will Howl. By 1864 the Federal government was making war on the people of the South with few holds barred, code or no.
Worth reading, especially since as it relates to the wars we are fighting today.
Lieber’s Code had immediate credibility with politicians and warriors, in no small part because it was written by a man who knew war, understood its occasional necessity, and believed deeply in the justness of his cause. Today, by contrast, the task of monitoring and developing the law of war has often fallen to—or been taken up by—a host of nongovernmental organizations. Many of these activists believe that the use of force has little place in world affairs and hope to legislate it out of existence. As the legal scholar Kenneth Anderson has argued, “The pendulum shift toward [nongovernmental organizations] has gone further than is useful, and the ownership of the laws of war needs to give much greater weight to the state practices of leading countries.” What’s more, these activists have a strong preference for supranational mechanisms to supervise the behavior of states. Nongovernmental organizations, for example, played a critical role in the development of the International Criminal Court (ICC), which promises regular international prosecutions for many war crimes.
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