Old Hundred and the American Way of Wartime Law

Thanks to a coincidence of film release debates, Lincoln and Django
Unchained have prompted no
small outpouring of commentary on the relationship between law, race, and
violence private and public both. Lest anyone fear I’m about to hijack this
blog for pop culture commentary, I bring these films up because the problem of
slavery, and its role in the military contest for the fate of the Union, played
an integral role in the development of modern laws of war. There can be no
doubt that emancipation in America required horrific carnage, and for precisely
this reason the U.S. went to great lengths to find a framework to restrain it
without compromising its obligation to prosecute and win an eminently just war.

John
Fabian Witt’s Lincoln’s Code provides
a compelling account of the evolution of the laws of war in America, not simply
within the Civil War but from the Revolution through the occupation of the
Philippines. Central to its story though, as the title implies, is the
critical role of General Orders No. 100 not simply within the context of
American history and warfare, but international humanitarian law worldwide.

Franz Lieber, who wrote “Old Hundred,” was perhaps the exact
opposite of the prevailing stereotype of an international lawyer as one might
expect. He was a Prussian and a soldier, who’d been shot through the neck at
Namur and yet still felt drawn towards the “indelible horrors” of war, which
provided the “rich dew” of historical progress. It was precisely because of
this inherent moral component to war that Lieber saw fit to revise and
crystallize the ethics of warfare for an age of mass combat – a desire almost
certainly enhanced by Lieber’s several sons who fought on both sides of the
Civil War.

Lieber, interestingly, was likely America’s first Clausewitzian
of any major influence. He’d been familiar with his fellow Prussian’s work
perhaps before most Germans. In Lieber’s Manual
of Political Ethics, Lieber explains war’s object is to “compel him to
peace at my will.” With the aims of a war providing justification to these
means, conceptions of military law underwent a radical shift from Enlightenment
standards morally indifferent to the aims of combatants. Lieber, as Clausewitz
implied, saw these 18^th century standards as customary artifacts
from a bygone era, but rather than dismissing laws of war as a concept, he
sought to recast them in order to simultaneously advance the Union’s war aims
while ensuring war’s hardness retained some justice.

The elevation of justice, however, was not identical with
humanitarianism. No. 100 forbade torture, poison, assassinations, cruelty
towards prisoners and any other sort of violence beyond military necessity. It
also permitted the execution of illegal combatants, reprisal killings for
hostile violations, and the expropriation or destruction of hostile property
under a wide range of circumstances.

In the context of emancipation, the codification of new laws of
war mattered a great deal. Jefferson and other founders sympathetic slavery
endeavored to redefine the laws of war, as they did a great many other things,
to prevent the use of emancipation as a weapon against the United States. For
most of young America’s history, it gravely feared British or other foreign
incitement of slave revolts, and consequently ensured the Enlightenment
humanitarian law protected slaves like any other civilian property. Even among
critics of slavery, the classically-educated hoped America would avoid the
servile wars past empires faced.

Lincoln, even as he became convinced of the military and moral
necessity of emancipation by the bayonet, still hoped to avoid such
insurrections while protecting the legitimacy of uniformed black combatants in
the Union ranks. Hence the strong penalties on fighting outside a military
hierarchy – it would deter not simply Confederate partisans but avoid extending
sanction to rebelling slaves (it’s also notable that many former pacifists
vocally embraced using slave revolts against the South).

The modern iteration of the laws of war, then, grew in part out
of a desire to undo a codified injustice at odds with the new contemporary
political reality. What had, in the past, appeared as a humanitarian
protection, was extended in order to provide safety for a gross injustice that
permitted brutal killings of what should have been legitimate combatants. The
Lieber Code provided recourse but it defined them within the limits of the law.

There is no practice so odious as American slavery now receiving
protection under the cloak of humanitarianism. But a great deal of behavior
morally repugnant in the 19^th century – the use of perfidy to
protect partisans and guerrillas and assassination – now exists as a new, frightening
reality for proponents of international humanitarian law’s value. In the Civil
War, defining the laws of war was synonymous with enhancing the ability of the
combatants to prosecute just war aims, even as it hardened the prohibitions on
unjustifiable acts.

Indeed, one of the great lessons of the Lieber Code is that a
country can use the laws of war in a Clausewitzian fashion to better relate
violence to policy and enhance the prosecution of the war effort. Indeed, not
only can they do so with military success, but in a manner that actually
accepts and even elevates a country’s international legitimacy, as the Lieber
Code did when the country which razed Atlanta found its orders codified in
international humanitarian law. While there is much more to it than this
quasi-review offers, Lincoln’s Code
is effective not simply as history but as a sobering reminder for strategic
theorists to take seriously the laws of war, and to reflect on the
opportunities today for reshaping them in a manner conducive to victory in a
just war.

www.cnas.org