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A different sense of humanity: occupation in Francis Lieber's Code

  • Rotem Giladi

Abstract

Accounts narrating the history of the modern law of occupation display ambivalence to the 1863 Lieber Code. At times, they mark the humanity of its provisions on occupied territories; at others, they find its concept of humanity in occupation limited compared to subsequent developments. A broader reading of the Code against Lieber's published works, teaching, and correspondence reveals a unique – and disconcerting –sense of humanity pervading through its provisions. Lieber's different sense of humanity, not directed at individuals, throws light on the history of the law governing occupied territories today and paves the way for critical reflections on its conceptual bases.

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1 Meron, Theodor, ‘The humanization of humanitarian law’, in American Journal of International Law, Vol. 94, No. 2, April 2000, p. 246 (‘the humanization of [the law of war], a process driven to a large extent by human rights and the principles of humanity [through which] … the law of war has been changing and acquiring a more humane face’).

2 Giladi, Rotem, Rites of Affirmation: Progress and Immanence in International Humanitarian Law Historiography (unpublished manuscript, 2012), analyses this ambivalence.

3 ‘Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874’, in Schindler, Dietrich and Toman, Jiří (eds), The Laws of Armed Conflicts, 4th edition, M. Nijhoff, Leiden, 2004, p. 27; International Law Institute, ‘Manual on the Laws of War on Land, Oxford, 9 September 1880’, in ibid., p. 29. For accounts commending e.g. the humanity of the Hague Regulations, see, for example, Eyffinger, Arthur, The 1907 Hague Peace Conference: ‘the conscience of the civilized world’, JudiCap, The Hague 2007.

4 Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, War Dept., Washington DC, 24 April 1863 (hereafter Lieber Code).

5 Baxter, Richard R., ‘The first modern codification of the laws of war: Francis Lieber and General Orders No. 100’, in International Review of the Red Cross, Vol. 3, No. 25, April–May 1963, p. 171; D. Schindler and J. Toman, above note 3, p. 3 (‘The “Lieber Instructions” represent the first attempt to codify the laws of war’).

6 I deal with the Code's impact below; the next part deals with the Code's context and its making.

7 Johann Caspar Bluntschli, ‘Lieber's service to political science and international law’, in Gilman, Daniel C. (ed.), The Miscellaneous Writings of Francis Lieber, Vol. II, Lippincott, Philadelphia, 1881, p. 12; Graber, Doris A., The Development of the Law of Belligerent Occupation 1863–1914, Columbia University Press, New York, 1949, p. 5 (the Lieber Code ‘marks the beginning of the modern law of belligerent occupation’).

8 D. A. Graber, above note 7; Benvenisti, Eyal, The International Law of Occupation, Princeton University Press, Princeton, 1993; Nabulsi, Karma, Traditions of War: Occupation Resistance, and the Law, Oxford University Press, Oxford, 1999.

9 Pictet, Jean S. (ed.), The Geneva Conventions of 12 August 1949: Commentary, (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross (ICRC), Geneva, 1958, pp. 273274.

10 ICRC, ‘Occupation and international humanitarian law: questions and answers’, 4 August 2004, available at: http://www.icrc.org/Web/Eng/siteeng0.nsf/html/634KFC (last visited 2 March 2012); E. Benvenisti, above note 8, pp. 105–106 (the Fourth Geneva Convention represents a ‘shift of attention from governments to the population’, signifying ‘growing awareness … of the idea that peoples are not merely the resources of states, but rather that they are worthy of being the subjects of international norms’).

11 ICRC, ‘General problems in implementing the Fourth Geneva Convention’, Report to Meeting of Experts, Geneva, 27–29 October 1998, available at: http://www.icrc.org/eng/resources/documents/misc/57jpf6.htm (last visited 2 March 2012): ‘the entire philosophy behind the Convention … [stipulates] the respect due to the individual and the inalienable character of the individual's fundamental rights’.

12 T. Meron, above note 1, p. 46 (of the fifteen articles on occupation, ‘only three relate to the physical integrity of civilian persons. The other provisions deal essentially with the protection of property’). By contrast, the Fourth Geneva Convention protects ‘personal, rather than proprietary, rights of the population of occupied territory’: Schwarzenberger, Georg, ‘The law of belligerent occupation: basic issues’, in Nordisk Tidsskrift International Ret, Vol. 30, 1960, pp. 10, 12.

13 J. S. Pictet, above note 9, p. 273.

14 Bhuta, Nehal, ‘The antinomies of transformative occupation’, in European Journal of International Law, Vol. 16, No. 4, September 2005, pp. 721, 723, rejects ‘the common historical account which narrates the emergence of belligerent occupation as part of the progressive “humanization of warfare” by European civilization’. See also E. Benvenisti, above note 8, p. 28; Benvenisti, Eyal, ‘The origins of the concept of belligerent occupation’, in Law & History Review, Vol. 26, No. 3, September 2008, p. 621.

15 E. Benvenisti, above note 14, p. 621.

16 Nys, Ernest, ‘Francis Lieber: his life and his work’, in American Journal of International Law, Vol. 5, No. 1, 1911, pp. 84, 355, 379; D. A. Graber, above note 7, p. 14; E. Benvenisti, above note 14; Korman, Sharon, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice, Oxford University Press, Oxford, 1996; Kussbach, Erich, ‘Conquest’, in Encyclopedia of Public International Law, Vol. I, North-Holland, Amsterdam, 1992, p. 756.

17 de Vattel, Emmerich, The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, trans. and ed. Joseph Chitty, T. & Johnson, J. W., Philadelphia, 1853, Bk. III, Ch. 13, S. 201.

18 D. A. Graber, above note 7, pp. 13–14, 37. For Grotian justification of and limitations on conquest, see Giladi, Rotem, Occupation, Humanity, Order: A Critique of International Humanitarian Law, unpublished SJD dissertation, University of Michigan Law School, 2011, p. 159. See N. Bhuta, above note 14.

19 Heffter, August Wilhelm, Das Europäische Völkerrecht der Gegenwart, E. H. Schroeder, Berlin, 1844.

20 E. Benvenisti, above note 14; E. de Vattel, above note 17, Bk. III, Ch. 13, S. 201.

21 E. de Vattel, above note 17, Bk. III, Ch. 13, S.200, reflecting a growing distinction between public and private spheres and an emerging view of war as a contest between rulers, elaborated four years later by Rousseau, Jean-Jacques in ‘The social contract, or principles of political right (1762)’, in Cole, George D. H. (ed.), Rousseau's Social Contract and Discourses, Dent & Sons, London, 1923.

22 E. de Vattel, above note 17, Bk. III, Ch. 13, S. 196 (stability); S. 194–195 (conquest acquires lawful title).

23 Ibid., S. 197–198.

24 A. W. Heffter, above note 19, pp. 220–221; translation by E. Benvenisti, above note 14, p. 630.

25 E. Benvenisti, above note 14, p. 631, observing that Heffter, who voiced a new principle of war limited by the need to re-establish peace, considered the occupant to have ‘a legitimate expectation of acquiring sovereignty after a successful military campaign’ forming the basis for the occupant's exercise of ‘provisional authority over the territory also during the interim period between the end of hostilities and commencement of peace’.

26 Elsewhere, I trace this notion to Grotius: R. Giladi, above note 18, p. 169.

27 Lieber never published any commentary on the Code: Childress, James F., ‘Francis Lieber's interpretation of the laws of war: General Orders No. 100 in the context of his life and thought’, in American Journal of Jurisprudence, Vol. 21, 1976, pp. 34, 3940.

28 Francis Lieber, ‘Law and usages of war’ (1861–1862), Box 2, Folders 16–18, Milton S. Eisenhower Library, Johns Hopkins University, Baltimore, MD; I wish to thank the Library staff for their help.

29 Lieber, Francis, Manual of Political Ethics, Designed Chiefly for the Use of Colleges and Students at Law, 1st edition, Little & Brown, Boston, 1838–1839.

30 Lieber's biography reveals too many irreconcilables to serve as a simple explanation for Code rules: Freidel, Frank, Francis Lieber: Nineteenth-century Liberal, Baton Rouge, LA, Louisiana State University Press, 1947, pp. 320, 325; J. F. Childress, above note 27, p. 43.

31 J. C. Bluntschli, above note 7, p. 12; Meron, Theodor, ‘Francis Lieber's Code and principles of humanity’, in Columbia Journal of Transnational Law, Vol. 36, 1998, pp. 269, 274; Root, Elihu, ‘Francis Lieber’, in American Journal of International Law, Vol. 7, July 1913, p. 453; E. Nys, above note 16, pp. 379–380; R. R. Baxter, above note 5, p. 183; D. A. Graber, above note 7, p. 17; Vöneky, Silja, ‘Der Lieber's Code und die Wurzeln des modernen Kriegsvölkerrechts (Lieber and the evolution of the laws of war)’, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 62, 2002, p. 423.

32 The Code also had enduring impact on official practice: it was reissued in 1898, and served as the baseline for similar manuals: Holland, Thomas E., The Laws of War on Land, Oxford University Press, Oxford, 1908, pp. 7273; D. A. Graber, above note 7, pp. 20 ff.

33 Bluntschli's 1866 Das moderne Kriegsrecht der civilisirten Staten als Rechtsbuch dargestellt was ‘little more than a paraphrase of General Orders No. 100’: R. R. Baxter, above note 5, p. 249; E. Nys, above note 16, p. 358; Röben, Betsy, Johann Caspar Bluntschli, Francis Lieber und das Moderne Völkerrecht 1861–1881, Nomos, Baden-Baden, 2003.

34 George B. Davis, ‘Memorandum showing the relation between General Orders No. 100 and the Hague Convention with respect to the laws and customs of war on land’, in E. Root, above note 31, p. 466; R .R. Baxter, above note 5, p. 171; and table in Richard Sallet, ‘On Francis Lieber and his contribution to the law of nations of today’, in Hans Werner Bracht et al., Recht im Dienste der Menschenwürde: Festschrift für Herbert Kraus, Holzner-Verlag, Würzburg, 1964, pp. 279, 286.

35 D. A. Graber, above note 7, p. 15.

36 T. E. Holland, above note 32, pp. 71–72; R. R. Baxter, above note 5, p. 235; E. Nys, above note 16, pp. 378, 381 (the Code ‘contemplated a civil war’; ‘Lieber attributed to the occupant the rights which American practice gave to him: it was more than the occupation of war, such as it had been constituted in Europe’); E. Benvenisti, above note 14, p. 640 (the ‘Code did not address the question of sovereignty: in this Civil War, it was not at issue’); Davis, George B., ‘Dr. Francis Lieber's instructions for the government of armies in the field’, in American Journal of International Law, Vol. 1, January–April 1907, pp. 13, 24.

37 R. R. Baxter, above note 5, p. 235. Lieber considered the term, used in earlier US practice, confusing: ‘Much error and not a little mischief has arisen from the name. What is called Martial Law ought to be called Martial Rule’: ‘Martial law’, handwritten note attached to ‘Law and usages of war’, above note 28, Box 2, Folder 18.

38 Bordwell, Percy, The Law of War between Belligerents: A History and Commentary, Callaghan, Chicago, 1908, p. 74; Seddon to Robert Ould, 24 June 1863, in Hartigan, Richard S., Lieber's Code and the Law of War, Precedent, Chicago, 1983, p. 120 (Confederate critique).

39 Brown, Bernard, American Conservatives: The Political Thought of Francis Lieber and John W. Burgess, Columbia University Press, New York, 1951, pp. 2021.

40 F. Freidel, above note 30, p. 294. Lieber tried to teach a course on the laws of war at West Point in 1859; Freidel, Frank, ‘General Orders 100 and military government’, in Mississippi Valley Historical Review, Vol. 32, March 1946, pp. 541542.

41 F. Freidel, above note 30, pp. 342 ff. In 1863, Lieber co-founded a propaganda society: Freidel, Frank, ‘The Loyal Publication Society: a pro-Union propaganda agency’, in Mississippi Valley Historical Review, Vol. 26, No. 3, December 1939, p. 359.

42 Lieber to Halleck, 7 December 1862, in R. S. Hartigan, above note 38, p. 84; War Dept. Adjutant General Office, Special Orders No. 399, 17 December 1862, in G. B. Davis, above note 36, p. 19.

43 Francis Lieber, A Code for the Government of Armies in the Field as Authorized by the Laws and Usages of War on Land etc., February 1863; Lieber to Halleck, 20 February 1863, in Perry, Thomas S., The Life and Letters of Francis Lieber, Osgood, Boston, 1882, p. 330.

44 F. Freidel, above note 30, pp. 333–334; R. R. Baxter, above note 5, pp. 183–184.

45 ‘Transpositions were made, as well as curtailments, improvements, and a very few additions; but some things were left out which I regret, and two weak passages slipt [sic.] in. They are not mine’: F. Lieber, cited in R. R. Baxter, above note 5, p. 185. On receipt of the final version, he wrote: ‘the generals of the board have added some valuable parts; but there have also been a few things omitted, which I regret. This is natural’: Lieber to Halleck, 20 May 1863, in R. S. Hartigan, above note 38, p. 108.

46 Thus, ‘my little code’ or, affectionately, ‘the old hundred’: Lieber to Halleck, 20 May 1863, and Lieber to Thayer, 12 January 1871, in T. S. Perry, above note 43, pp. 333–334, 406.

47 As the Union was shifting from leniency towards propertied secessionists – abandoning prior assumptions about support for Southern leadership – to destruction of Confederate economic bases: Grimsley, Mark, The Hard Hand of War: Union Military Policy Toward Southern Civilians, 1861–1865, Cambridge University Press, Cambridge, 1995, pp. 149 ff. See F. Freidel, above note 40, p. 548 (the Code provided Union Generals with a shield from both the lashing of Republican Radicals and critique of unwarranted harshness). The question of the authority of military governors was tied to the treatment of slaves, the source of divergent Union practices: Lieber, Francis, ‘The duty of provisional governors’, in New York Evening Post, 16 June 1862, p. 1.

48 F. Freidel, above note 30, p. 334; F. Freidel, above note 40, p. 552. Lieber thought that civil war exceeded the Board's mandate: Lieber to Halleck, 20 February 1863, in R. R. Baxter, above note 5, p. 184: ‘I have said nothing of rebellion and invasion of our country with reference to the treatment of our own citizens’; the response was: ‘The civil war articles should by all means be inserted’: J. F. Childress, above note 27, pp. 38–39.

49 ‘[P]robably because he did not wish the “Code” to be capable of the construction that it was applicable only to civil war and not to wars between states’: R. R. Baxter, above note 5, pp. 184, and 249. F. Freidel, above note 40, p. 550 (‘applicable to all international wars in which the United States might be involved, with the exception of the final section [on] … rebellions. The basic premise of these earlier sections was that the army acquired its authority over occupied territory from international rather than municipal law. Limitations upon it could come only from that source’). Lieber hoped that the Code would ‘be adopted as a basis for similar works by the English, French and the Germans. It is a contribution of the United States to the stock of common civilization’: Lieber to Halleck, 20 May 1863, in T. S. Perry, above note 43, pp. 333–334; D. A. Graber, above note 7, pp. 19–20; J. F. Childress, above note 27, p. 35 (not ‘merely a product of or excessively oriented toward the Civil War’); Abi-Saab, Rosemary, ‘Humanitarian law and internal conflicts: the evolution of legal concern’, in Delissen, Astrid J. M. and Tanja, Gerard J. (eds), Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven, M. Nijhoff, Dordrecht, 1991, pp. 209211.

50 See above, note 36.

51 One may question the Code's validity. Did it constitute a ‘codification’ of pre-existing laws and usages and was thus authoritative only to the extent that it reflected positive law? Or was it ‘progressive development’ of the law of war, and so of diminished authority? The authority of the enterprise of a private individual can equally be challenged: see e.g. J. F. Childress, above note 27, p. 39. Yet the role that Lieber and his contemporaries assumed as the heralds of the modern law of nations, an ‘alliance of leading international jurists from all civilized nations, for the purpose of working harmoniously together, and thus serving as an organ for the legal consciousness of the civilized world’, challenges distinctions between codification and development, positive and natural law: J. C. Bluntschli, above note 7, p. 14. The formula describes the object of the Institut de Droit International, whose founding was credited to Lieber: Koskenniemi, Martii, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960, Cambridge University Press, Cambridge, 2002, pp. 38 ff. See also Baker Röben, Betsy, ‘The method behind Bluntschli's “modern” international law’, in Journal of the History of International Law, Vol. 4, 2002, p. 249; B. Röben, above note 33, p. 241 (‘both sought to show that international law was binding because based on shared humanity, and that this foundation necessarily led to legal protections for individual or human rights, in war and in peace’). See Glazier, David W., ‘Ignorance is not bliss: the law of belligerent occupation and the U.S. invasion of Iraq’, in Rutgers Law Review, Vol. 58, No. 1, 2005–2006, pp. 121, 129. Later generations did treat the Code as authoritative. Ironically, Lieber's work inspired and triggered diplomatic codification; for prudential and practical reasons, he himself preferred private codifications by scholars. See E. Root, above note 31, pp. 463–464; J. F. Childress, above note 27, p. 39; F. Lieber, above note 29, p. 651; E. Nys, above note 16, p. 110; Harley, Lewis R., Francis Lieber: His Life and Political Philosophy, Columbia University Press, New York, 1899, p. 142.

52 J. F. Childress, above note 27, passim; B. Röben, above note 33, passim; R. R. Baxter, above note 5, passim; F. Freidel, above note 30, p. 333.

53 See P. Bordwell, above note 38, p. 74: Lieber ‘followed too closely the hard precedent of earlier wars’. Lieber wrote: I ‘was obliged to spin the whole out of my own head following the Law of Nations and its principles[:] History Reason and Love of Justice and Humanity and conscience’. Lieber to Bates, 25 February 1863, in B. Röben, above note 33, p. 128. He claimed: ‘nothing of the kind exists in any language. I had no guide, no groundwork, no text-book … [I was] laying down for the first time such a code … Usage, history, reason, and conscientiousness, a sincere love of truth, Justice, and civilization, have been my guides …’: Lieber to Halleck, 20 February 1863, in T. S. Perry, above note 43, p. 330.

54 J. C. Bluntschli, above note 7, pp. 8–9; Robson, Charles B., ‘Francis Lieber's theories of society, government, and liberty’, in Journal of Politics, May 1942, Vol. 4, No. 2, pp. 227 ff; see B. Röben, above note 33, p. 250. E. Nys, above note 16, p. 107, was less benign (‘an eclectic … willing to sacrifice either of … methods … to derive profit from both’).

55 R. R. Baxter, above note 5, p. 250.

56 J. F. Childress, above note 27, p. 69.

57 ‘Man’ and ‘mankind’ in this section reflect Lieber's own usage.

58 F. Lieber, above note 29, p. 63 (development).

59 Ibid., pp. 3 (rationality) and 176–179 (society).

60 Liberty is a condition of ‘free agency as a member of society [and] an ingredient of … humanity’: ibid., p. 205.

61 F. Freidel, above note 30, pp. 152 ff; C. B. Robson, above note 54, passim.

62 B. Röben, above note 33, p. 247.

63 Lieber, Francis, On Civil Liberty and Self-government, 1st edition, Lippincott & Grambo, Philadelphia, 1853, Vol. 1, p. 34 (meaning of civil liberty).

64 Lieber, Francis, Fragments of Political Science on Nationalism and Inter-Nationalism, Scribner, New York, 1868, p. 5 (absolutism). Absolutism was ‘the lowest phase in politics, and democratic absolutism the worst of all, and … no liberty is possible without institutional polity’: Lieber to Mittermaier, 28 November 1857, in T. S. Perry, above note 43, p. 296.

65 Individualism ‘would reduce society to loathsome despotism’: F. Freidel, above note 30, pp. 152–154. Lieber rejected Rousseau's ‘divine right of the majority’ – ‘inarticulated, unorganized, uninstitutional majority’ – as ‘almost invariably false in all vast and high spheres’: F. Lieber, above note 63, p. 75.

66 F. Lieber, above note 29, p. 181 (‘The state existing of necessity, and it being each man's natural society, it follows that each member singly owes some duties to each member collectively, and, of course, all members collectively have certain rights (and, consequently, duties) toward each man singly’); F. Lieber, above note 63, p. vi (‘no right without a parallel duty, no liberty without the supremacy of the law, and no high destiny without earnest perseverance … no greatness without self-denial’).

67 ‘By an “institution” Lieber meant any system of relationships among a number of individuals which had sufficient vitality to generate its own rules and organs’: C. B. Robson, above note 54, p. 247, who notes that Lieber nonetheless focused mainly on the common law (or the courts), local self-government, and national representation (ibid., p. 244). Institutional liberty therefore meant regulated liberty. See also F. Lieber, above note 63, p. 256.

68 F. Lieber, above note 63, pp. 302–303 (system of institutions); Lieber to Mittermaier, 28 November 1857, in T. S. Perry, above note 43, p. 296 (polity); F. Lieber, above note 63, p. 5 (state); C. B. Robson, above note 54, p. 242.

69 F. Lieber, above note 63, pp. 5 and 8 (‘Civil Liberty resting on Institutional Self-Government is the high political calling of this period’; the nation is the only form ‘adequate’ to meet ‘the high demands of modern civilization’). F. Lieber, above note 29, p. 179; F. Lieber, above note 63, Vol. 2, p. 17 (government consequence of ‘jural nature of society and of man’). Lieber also rejected the ‘state of nature’: Hackett, Jeremiah, ‘Lieber's moral philosophy: freedom and institution’, in Mack, Charles R. and Lesesne, Henry H. (eds), Francis Lieber and the Culture of the Mind, South Carolina University Press, Columbia, SC, 2005, p. 107.

70 F. Lieber, above note 29, p. 176 (i.e. supply ‘protection of each member as that being who cannot otherwise but obtain conjointly with others, or through and in society his great ends of humanity – those ends which are necessary, and yet cannot be obtained singly’).

71 Ibid., pp. 183–184 (‘The state does not absorb individuality, but exists for the better obtaining of the true ends of each individual, and of society collectively’).

72 C. B. Robson, above note 54, p. 237.

73 F. Lieber, above note 29, pp. 180–181; see also F. Lieber, above note 63, p. 60.

74 F. Lieber, above note 64, pp. 19–20 (other forms of order ‘obsolete’: ‘universal monarchy …; a ‘single leading nation; an agglomeration of States without a fundamental law, with the mere leadership or hegemony of one State or another, which always leads to Peloponnesian wars; regular confederacies of petty sovereigns; … all these are obsolete ideas, wholly insufficient for the demands of advanced civilization, and attempts at their renewal have led and must lead to ruinous results’).

75 Ibid., p. 21 (multiplicity), p. 20 (safeguard, monarchy, a clear reference to Napoleonic empire), p. 5 (progress).

76 Ibid., pp. 19–21; Francis Lieber, ‘Twenty-seven definitions and elementary positions concerning the law and usages of war’ (1861), manuscript, Box 2, Folder 15, § 8 (in the Eisenhower Library, above note 28).

77 F. Lieber, above note 64, p. 21.

78 A fundamental, ‘all-pervading law of inter-dependence, without which men would never have felt compelled to form society … inter-dependence which like all original characteristics of humanity, increases in intensity and spreads in action as men advance, this divine law of inter-dependence applies to nations quite as much as to individuals’: ibid., p. 22.

79 Ibid. (‘Without the law of nations … which … is at once the manly idea of self-government applied to a number of independent nations in close relation with one another, and the application of the fundamental law of Good Neighborhood, and the comprehensive law of Nuisance, flowing from it, to vast national societies, wholly independent, sovereign, yet bound together by a thousand ties’).

80 ‘[C]ivilized nations have come to constitute a community of nations, and are daily forming more and more, a commonwealth of nations, under the restraint and protection of the law of nations, which rules, vigore divino. They draw the chariot of civilization abreast …’: L. R. Harley, above note 51, p. 142; Lieber Code, Art. 30; the notion of law as empire, entwining protection and restraint, appears in the Martens clause: Preamble, 1899 Hague Regulations.

81 F. Lieber, above note 76, § 20 (‘the civilized nations of our race form a family of nations. If members of this family go to war with one another, they do not thereby divest themselves of the membership – neither toward the other members, nor wholly toward the enemy’); B. Röben, above note 33, pp. 246–247.

82 Lieber to Sumner, 27 December 1861, in T. S. Perry, above note 43, p. 324 (‘International law is the greatest blessing of modern civilization, and every settlement of a principle in the law of nations is a distinct, plain step in the progress of humanity’).

83 He dismissed peace societies and their ‘principle of benevolence’ seeking ‘to prohibit all violent contest, even wars of defence and resistance, even … to acquire liberty’: F. Lieber, ‘Law and usages of war’, above note 28, no. I; F. Lieber, above note 29, pp. 632–635. He admitted being ‘no vilifier of war under all circumstances’: Lieber to Hillard, 18 April 1854, in T. S. Perry, above note 43, pp. 270–271; J. F. Childress, above note 27, p. 44; F. Freidel, above note 30, p. 223. His approach to war is manifest in his war advocacy: F. Friedel, above note 30, p. 319; Lieber, Francis, ‘The disposal of prisoners’, in New York Times, 19 August 1861, p. 5.

84 F. Lieber, above note 29, pp. 634 ff and 649 (wars historically disseminate civilization and cause ‘exchange of thought and produce and enlargement of knowledge’); F. Lieber, above note 63, p. 26 (‘Blood has always flowed before great ideas could settle into actual institutions, or before the yearnings of humanity could become realities. Every marked struggle in the progress of civilization has its period of convulsion’). J. F. Childress, above note 27, pp. 43–44.

85 F. Freidel, above note 30, pp. 299, 305.

86 ‘Prolonged peace and worldly security and well-being had thrown us into a trifling pursuit of life, a state of un-earnestness, had produced a lack of character, and loosened many a moral bond’: F. Lieber, cited in R. R. Baxter, above note 5, p. 178; F. Lieber, above note 29, pp. 645–646.

87 On Perpetual Peace was thus one of Kant's ‘weaker productions’: F. Lieber, above note 29, p. 653.

88 F. Lieber, above note 47; Lieber Code, Art. 15; J. F. Childress, above note 27, pp. 47–48.

89 Captured by an 1872 eulogy: ‘he applauded the success of Germany, his first homeland but he did not desire for it an unlimited empire, and he was deeply impressed with the advantages which would result to civilization from the friendly rivalry [rivalité pacifique] of several great nations’: Rolin-Jaequemyns, Gustav, ‘Nécrologie Francois Lieber’, in Revue de droit international et de législation comparée, Vol. 4, 1872, pp. 700, 704.

90 F. Lieber, above note 29, pp. 640 ff.; R. R. Baxter, above note 5, pp. 175–176 (obligations).

91 ‘The law of nations allows every sovereign government to make war upon another …’: Lieber Code, Art. 67.

92 F. Lieber, cited in R. R. Baxter, above note 5, p. 178.

93 F. Lieber, above note 29, p. 635.

94 See J. F. Childress, above note 27, p. 45.

95 F. Lieber, above note 29, pp. 653–656, enumerating just causes.

96 Lieber to Von Holtzendorff, 20 May 1872, in T. S. Perry, above note 43, p. 424; J. F. Childress, above note 27, p. 45.

97 F. Lieber, above note 76, § 14 (‘War being a physical contest, yet man remaining forever a moral and a rational being, and peace being the ultimate object of war, the following four conditions result: … b. All means to injure the enemy so far as [they?] deprive him of power to injure us or to force him to submit to the conditions desired by us are allowed to be resorted to, but c. Only so far as necessary for this object …’).

98 F. Lieber, above note 29, p. 658.

99 F. Lieber, above note 76, § 5.

100 Lieber Code, Art. 68: ‘The destruction of the enemy in modern war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war. Unnecessary or revengeful destruction of life is not lawful’.

101 See quote above at note 92.

102 F. Lieber, above note 76, § 1 (‘Peace is the normal state of civilized society. War is the exception’).

103 F. Lieber, above note 29, p. 658.

104 F. Lieber, above note 76, §§ 4, 14. See also Lieber Code, Art. 29, considered below.

105 F. Lieber, above note 29, pp. 661–662.

106 Ibid. (armistice violations censured); Lieber Code, Arts. 11, 15, 30 (faith in warfare crucial to resumption of peace).

107 Sassòli, Marco, Bouvier, Antoine A., and Quintin, Anne, How Does Law Protect in War, 3rd edition, ICRC, Geneva, 2011, Vol. 1, p. 442.

108 F. Lieber, above note 29, p. 660; F. Lieber, above note 76, § 19. This and similar statements on the nature of modern war have without doubt proven fallacious.

109 F. Lieber, above note 29, p. 661.

110 ‘I am not only allowed … but it is my duty to injure my enemy, as enemy, the most seriously I can, in order to obtain my end. … The more actively this rule is followed out the better for humanity, because intense wars are of short duration. If destruction of my enemy is my object, it is not only right, but my duty, to resort to the most destructive means’ (ibid., p. 660).

111 See, for example, the discussion following note 81, above.

112 Lieber Code, Art. 30, rejects past ‘conventional restriction of the modes adopted to injure the enemy’; F. Lieber, above note 29, pp. 660–661 (derision for chivalry-based limitations); F. Lieber, above note 76, § 12 (‘Wars and battles are not duals, nor appeals to the deity to decide by the award of victory who is right’).

113 Consider, in this respect, the language of Lieber Code, Arts. 20, 29–30, 67–68. Lieber was not the first to make the distinction between public and private war; but he asserted its consequences to the fullest, harnessing law to the requirements of the national age.

114 Lieber Code, Arts. 11, 15, 46.

115 James T. Johnson, ‘Lieber and the Theory of War’, in C.R. Mack and H.H. Lesesne, above note 69, pp. 61–63.

116 F. Lieber, above note 29, p. 659; J. F. Childress, above note 27, p. 57.

117 K. Nabulsi, above note 8, pp. 137 ff.

118 C. B. Robson, above note 54, p. 230.

119 F. Lieber, above note 76, § 19 (contrasting modern war's brevity to long destructiveness of ‘religious wars’).

120 Carnahan, Burrus M., ‘Lincoln, Lieber and the laws of war: the origins and limits of the principle of military necessity’, in American Journal of International Law, Vol. 92, No. 2, April 1998, p. 213 : ‘the Lieber Code's greatest theoretical contribution to the modern law of war was its identification of military necessity as a general legal principle to limit violence, in the absence of any other rule’, but Carnahan fails to account for war's instrumentality in Lieber's theory.

121 Lieber Code, Arts. 16 (wanton devastation), 36, 44, 68.

122 F. Lieber, above note 29, p. 663.

123 B. M. Carnahan, above note 120, p. 218.

124 J. T. Johnson, above note 115, pp. 64–65. The February draft, above note 43, supports this.

125 Lieber Code, Art. 5: ‘To save the country is paramount to all other considerations’.

126 Universal Declaration of Human Rights, UN General Assembly Res. A/RES/217, 10 December 1948, preamble.

127 J. C. Bluntschli, above note 7, pp. 12–13, lauded Lieber for remaining ‘fully aware’ that ‘to those engaged in [war], the harshest measures and most reckless exactions cannot be denied; and that tender-hearted sentimentality is here all the more out of place, because the greater the energy employed in carrying on the war, the sooner will it be brought to an end, and the normal condition of peace restored’.

128 See discussion on non-combatants, below.

129 In 1899, Martens acknowledged the Code as ‘the basis of all subsequent efforts in … the humanization of war’: William Holls, Fredrick, The Peace Conference at The Hague and its Bearings on International Law and Policy, Macmillan, New York, 1900, p. 150.

130 See also above note 37.

131 Compare Arts. 42–43 of the 1907 Hague Regulations to the Code's Art. 1.

132 Compare Arts. 42–43 of the 1907 Hague Regulations, as well as Art. 2 of the Fourth Geneva Convention, to Arts. 1 and 3 of the Lieber Code; see also F. Lieber, above note 47, passim.

133 Compare to Art. 43, 1907 Hague Regulations; Art. 68, Fourth Geneva Convention.

134 See also Arts. 15 and 134 of the Code.

135 1907 Hague Regulations, Art. 43; UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, p. 275.

136 McDougal, Myres S. and Feliciano, Florentino P., Law and Minimum World Public Order: The Legal Regulation of International Coercion, Yale University Press, New Haven, CT, 1961, p. 740 (duty to administer territory primary ‘manifestation of the humanitarian principle’).

137 See 1874 Brussels Declaration, Arts. 2–3: ‘2. The authority of the legitimate Power being suspended and having in fact passed into the hands of the occupants, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety. 3. With this object he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary’.

138 ‘[H]aving actually passed into the hands of the occupant’ (Hague Regulations, 1899); ‘having in fact passed into the hands of the occupant’ (Hague Regulations, 1907); ‘being suspended and having in fact passed’ (Brussels Declaration, 1874).

139 Military necessity is absent from Art. 1 of the Code (existence of authority) but appears in Art. 3 (its exercise and effects).

140 Following Heffter, Lieber did not require the occupant ‘to respect the bases of power of the ousted government’: E. Benvenisti, above note 14, p. 631.

141 It could be argued that such a duty is implied in Art. 3 of the Code; but neither text nor systemic interpretation of the Code's provisions on occupation support this position.

142 He was concerned with ‘subsistence’ of the occupation army, not the population: ‘Self-support of the army as by Napoleon. First much cried against & cannot be helped that the individual suffers’: F. Lieber, ‘Law of war’, handwritten notes attached to ‘Law and usages of war’, above note 28.

143 ‘Martial Law in the enemy's country consists in the assumption of authority over persons and things, by the commander-in-chief, and the consequent suspension of all laws, and the substitution of military force for them, so far as the necessity of the war requires it, and for the time being, according to the usages of war, which includes what is called the necessity of war or raison de guerre’: in R. R. Baxter, above note 5, p. 265.

144 Art. 4 Lieber Code (administering martial law ought ‘be strictly guided by the principles of justice, honor, and humanity’).

145 J. S. Pictet, above note 9, pp. 200–201 (Art. 27 of the Fourth Geneva Convention proclaims ‘respect for the human person and the inviolable character of the basic rights of [the] individual’).

146 M. Grimsley, above note 47, p. 150; J. T. Johnson, above note 115, p. 65 (the Code did not provide an ‘extensive discussion of how to treat enemy noncombatants …’); J. F. Childress, above note 27, p. 52 (Lieber ‘in principle emphasize[d]’ rules on ‘military operations and methods of warfare’, not rules on ‘war casualties and noncombatants’; ‘did not elaborate the category of the noncombatant’). The term ‘civilian’ would only appear in the twentieth century.

147 Though a form of non-combatant category was appended to the Code (Art. 155), it is of little substance: see discussion below. This classification is not central to Lieber's treatment of non-combatants and does not ground their protection in status: e.g. Lieber to Halleck, 13 June 1864, in T. S. Perry, above note 43, pp. 347–348.

148 ‘Man … owes what he is in a great measure to his social state – the society in which he actually lives, and to the continuity of that society. Man does not merely enjoy benefits owing to his social character, but he must also bear many evils in consequence, in peace as much as in war’: F. Lieber, above note 76, § 7.

149 Ibid., § 12.

150 F. Lieber, above note 29, p. 659 (‘So soon as an enemy is rendered harmless by wounds or captivity, he is no longer my enemy, for he is no enemy of mine individually’); similarly, the treatment of prisoners of war as ‘public enemy’, in Lieber Code, Arts. 49, 74, 56, 76, is contingent on public function, not individual humanity.

151 F. Lieber, above note 29, p. 644, conceded that ‘In war those suffer generally most who were least the cause of wrong’, but argued: ‘the evil, though great, as has been admitted, is not so great as is often supposed. For it is the plan of the creator that government and people should be closely united in weal and woe; no state of political civilisation, no high standard of national liberty and general morality is possible’ otherwise.

152 ‘Enemies … [t]he contending parties are the political societies. The hostile States are the real belligerents. In regular wars each citizen of a warfaring state is reputed to be an enemy of each citizen of the hostile state, but this is only because member of the hostile society, and not on account of individual hostility…’: F. Lieber, above note 76, § 11.

153 ‘Properly speaking, the enemy is the hostile state … represented … also in all its citizens, from whom the means of carrying on the war are drawn, or who furnished them … [The enemy, therefore, includes] the unarmed enemy … supplying the means for the war, directly or indirectly’: F. Lieber, above note 29, pp. 650, 658–659.

154 J. T. Johnson, above note 115, p. 63 (‘avoidance of harm to noncombatants followed not from the rights of noncombatants themselves … but in … uses of armed force for public as opposed to private ends…’).

155 F. Lieber, above note 29, p. 661.

156 Ibid., p. 659; J. F. Childress, above note 27, pp. 52–53, underplaying collective responsibility (‘Lieber's distinction between combatant and noncombatant has nothing to do with a person's subjective guilt or innocence, but with his objective position, impeding or obstructing the opposing belligerent in his war aims’).

157 Note the civilizational limits in Lieber Code, Arts. 24–25.

158 News of wanton property destruction by Union troops caused Lieber to warn against ‘incalculable injury. It demoralizes our troops; it annihilates wealth irrevocably and makes a return to a state of peace … more and more difficult’; Lieber to Halleck, 20 May 1863, in R. S. Hartigan, above note 38, p. 109. What caused alarm was force efficiency, wastefulness, and the war's conclusion, not the plight of civilians.

159 Similarly, Lieber Code, Arts. 23 (‘overruling demands of a vigorous war’), 25 (‘privation and disturbance of private relations’), and 37.

160 Compare Arts. 7, 15, 16 22, 32, 37, and 38 of the Lieber Code to Arts. 4 and 6 of the 1899 Hague Regulations; Art. 46 of the 1907 Hague Regulations; and Art. 38 of the Brussels Declaration. With small variations, these use the Code's language to posit autonomous values.

161 As has been argued in the scholarly – and Confederate – critique of the Code: see P. Bordwell, above note 38; R. S. Hartigan, above note 38.

162 Status-based humanitarian protection (prisoners of war) may appear in Lieber Code, Art. 76, but see above note 147.

163 Quoted in full above, note 152.

164 F. Lieber, ‘Law of war’, note attached to ‘Law and usages of war’, above note 28. See McPherson, James M., Battle Cry of Freedom: The Civil War Era, Oxford University Press, New York, 1988, pp. 551552.

165 F. Lieber, above note 29, p. 643.

166 The condition of submission is most apparent in the treatment of resistance to the occupant, spies, war-rebels and war-traitors in occupied territories: Francis Lieber, ‘Guerrilla parties considered with reference to the laws and usages of war’ (1862), in D. C. Gilman, above note 7, p. 275; J. F. Childress, above note 27, pp. 53–58; Lieber Code, Arts. 10, 15, 38.

167 Also Lieber Code, Art. 134.

168 F. Lieber, above note 166, pp. 283–284.

169 J.-J. Rousseau, above note 21, p. 11. See E. Benvenisti, above note 14, pp. 625–626. The Code rejects this in Arts. 20 and 21. For Lieber's ridicule of Rousseau, see L. R. Harley, above note 51, p. 126; F. Freidel, above note 30, pp. 154–155.

170 J.-J. Rousseau, above note 21, p. 12.

171 B. Röben, above note 33, p. 69. Lieber was dismissive of Vattel: J. F. Childress, above note 27, p. 59.

172 Francis Lieber, ‘The value of plebiscitum in international law’ (1871), in D. C. Gilman, above note 7, p. 301.

173 See discussion above notes 137–140; Wager Halleck, Henry, International Law, or, Rules Regulating the Intercourse of States in Peace and War, Bancroft, San Francisco, 1861, p. 776 (‘The rights of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer’).

174 Lieber Code, Arts. 1, 5, 9, 85, and 92.

175 The Code often mentions ‘conquest’ or the victorious army while addressing matters preceding final settlement: consider, e.g., Arts. 31, 33, and 36.

176 Lieber, Francis, The Arguments of Secessionists, Loyal Publication Society, New York, 1863 (‘if the South had a right to secede, … they constitute a sovereign nation, and we … have, according to all law of nations, the right of conquering another sovereign nation’); F. Lieber, above note 172, p. 301.

177 Lieber Code, Arts. 31 and 36.

178 D. A. Graber, above note 7, p. 5, on Art. 33 (in the Code, ‘annexation is possible prior to the conclusion of peace’).

179 Lieber to Hillard, 18 April 1854, in T. S. Perry, above note 43, p. 27.

180 F. Lieber, above note 172, p. 306 (‘a change of the political status [does not require] … in all cases the so-called consent of the people’: European practices changing the population's allegiance and mastery, ‘given and taken like chattel’ ‘by scheming diplomatists’, was distasteful, but could happen ‘by simple conquest’: Lieber to Hammond, 14 February 1859, in Chester Squire Phinney, Francis Lieber's Influence on American Thought and Some of His Unpublished Letters, International Print, Philadelphia, 1918, p. 74.

181 F. Lieber, above note 172, p. 301 (‘necessary for the safety of Germany, as well as for the peace of Europe’).

182 Lieber to Bluntschli, 5 November 1870, in E. Nys, above note 16, p. 88; F. Freidel, above note 30, p. 409. On the Lieber–Bluntschli collaboration, see B. Röben, above note 33.

183 H. W. Halleck, above note 173, pp. 793–794 (‘implied’, ‘tacit agreement … mutual and equally binding upon both parties’, whereby the populace forego further resistance and the conqueror is obliged not to slaughter males and allow the populace ‘freely and peacefully to pursue their ordinary avocations’); Oppenheim, Lassa, ‘The legal relations between an Occupying Power and the inhabitants’, in Law Quarterly Review, Vol. 33, October 1917, p. 368.

184 Oppenheim, above note 183, p. 370.

185 F. Lieber, above note 166, pp. 283–285.

186 Ibid.; Lieber Code, Art. 52.

187 Lieber Code, Art. 153 (‘victory in the field … ends the strife and settles the future relations between the … parties’).

188 Lieber to Thayer, 3 February 1864, in T. S. Perry, above note 43, p. 340 (‘nothing can decide but victory in the field. The more efficient, therefore, the army is made, and the more unequivocally [sic] the conquest of the South, the better for all, North and South’).

189 Lieber, Francis, No Party Now But All for Our Country, Westcott, New York, 1863 (‘Either the North conquers the South and re-establishes law, freedom, and the integrity of our country, or the South conquers the North… and covers our portion of the country with disgrace and slavery’).

190 F. Lieber, above note 29, p. 658 (‘the ultimate object of the war … among civilised nations is always peace, on whatever conditions that may be’).

191 Lieber, Francis, Essays on Property and Labour, Harper, New York, 1842, p. 132 (‘present political societies arose out of conquest’); his South Carolina inaugural lecture appreciated ‘the conquests which our own age may have made in the cause of civilization’: D. C. Gilman, above note 7, p. 185.

192 Giladi, Rotem, ‘The jus ad bellum/jus in bello distinction and the law of occupation’, in Israel Law Review, Vol. 41, October 2008, p. 246.

* I would like to thank Steve Ratner, Tomer Broude, and Guy Harpaz for their helpful comments on earlier drafts. Errors are mine alone. Comments welcome: .

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International Review of the Red Cross
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