Francis Lieber, Terrorism, and the American Way of War

Francis Lieber, Terrorism, and the American Way of War

by Erik Ringmar

Abstract

This article investigates the distinction between wars fought against "civilized states" and wars fought against "savages". It concludes that the United States has been disproportionately engaged in wars of the latter kind. This fact, the argument will be, has given a particular character to the way Americans deal with foreign threats. There is an "American way of war" of which the Bush administration's response to the terrorist attacks of 2001 is a characteristic expression.

On April 24, 1863, US President Abraham Lincoln signed "General Order No. 100", regulating the way in which the North's Union troops were to conduct the war against the Confederate Southern states.[1] The order ruled out certain actions as beyond the pale of civilized conduct, even during the heat of battle. These are actions which cannot be justified by reference to military necessity and include notably attacks on civilians, torture and inhumane treatment of prisoners of war, destruction of private property and cultural artifacts. Although war is terrible, the order insisted, it does not justify barbarism.

The General Order No. 100 was popularly known as "the Lieber Code" after its author Francis Lieber, professor of history and political economy at Columbia University. Lieber was a German immigrant who drew on contemporary European attempts to codify the rules of war, but whose work also greatly contributed to this tradition. All major subsequent writers on the subject have acknowledged Lieber's work which became a direct inspiration for a number of international agreements, not least the famous Geneva Conventions (1949) on the treatment of prisoners of war. Although the Lieber Code is not always adhered to in practice, it has provided a means of distinguishing legitimate acts of warfare from criminality, setting a standard by which the actions of soldiers and their commanders can be judged.

Some 150 years later, during the Bush administration's so-called "Global War on Terror", a number of Lieber's rules were explicitly and unapologetically broken.[2] Between 2001 and 2008, officials of the American government abducted innocent civilians, held suspects indefinitely without trial, tortured prisoners of war and subjected them to degrading treatment. In a practice known as "extraordinary rendition," they sub-contracted what in some cases amounts to war crimes to assorted unsavory regimes.[3] These techniques, said Vice President Dick Cheney, constituted "a tougher program, for tougher customers."[4]

If we juxtapose Francis Lieber and Dick Cheney we get the contrast between two different American world-views: a law-abiding, internationalist, institutionalist outlook, and a go-it-alone attitude which is suspicious of international agreements and dismissive of anything that limits the freedom of action of the military.[5] During the Bush administration the latter perspective was dominant, but during Barack Obama's administration the former has made a spectacular comeback. On January 22, 2009, the new president signed an executive order banning torture and dismantling the clandestine network of prisons operated by the CIA. "We are not," Obama insisted, "going to continue with the false choice between our safety and our ideals."[6] "We intend to win this fight. We are going to win it on our own terms."

There are problems, however, with this liberal interpretation. As Lieber himself made quite clear, and as all major nineteenth-century international lawyers emphasized, the laws of war apply only to conflicts between what at the time was known as "civilized" enemies. That is, enemies who themselves respect the laws of civilized warfare. In cases of war with others ― with "savages" ― the rules explicitly not did apply. The laws of war are not universal, but they have limits. This, of course, was much the same conclusion which the Bush administration and its lawyers arrived at back in 2001. Terrorists, they argued, do not respect the laws of civilized warfare and the United States is for that reason not obliged to play by the rules. Rather than exemplifying two diametrically opposed perspectives, Lieber and Cheney seem to share the same outlook.

Francis Lieber and the Laws of Civilized Warfare

Francis Lieber was born in Berlin in the year 1800.[7] As a boy he was profoundly moved by Germany's defeat at the hands of Napoleon, and already as a 15-year-old he volunteered to join Blücher's army and he took part in the battle of Waterloo. To be a German nationalist at the time was to fight for liberal values and democracy against foreign as well as domestic oppression.[8] As a 21-year-old he left for Greece to lend support to the struggle against Ottoman occupation. Back in Prussia again the following year, Lieber attracted the attention of the conservative government, was put in prison, and barred from government employment. Continuously harassed by the authorities, he decided in 1826 to leave for England. The following year he continuing on to the United States.

In contrast to his adventurous youth, Lieber's American life was conspicuously quiet. For 20 years he was a professor in South Carolina, a state he regarded as an intellectual and cultural backwater. Through his extensive writings ― including the editorship of Encyclopedia Americana ― he made contacts with influential thinkers and politicians, including Charles Sumner, the statesman and lawyer, and Henry Wager Halleck, the general and law expert.[9] In 1858, Lieber accepted a professorship in history and political economy at Columbia College in New York. This was where in 1862 he was chosen to chair a commission charged with drawing up a set of rules that could regulate the conduct of Union soldiers in the ongoing Civil War. "[N]othing of the kind exists in any language," Lieber wrote to Halleck, "I had no guide, no ground-work, no text-book."[10] The following year the committee presented a short manual of 157 paragraphs, signed by President Lincoln as the "General Order No. 100" on April 24, 1863.

It was Lieber's notion of "military necessity" which provided him with a way of separating acceptable from unacceptable actions. "Military necessity," simply put, "consists in the necessity of those measures which are indispensable for securing the ends of the war."[11] What is militarily necessary is also lawful, but what is not militarily necessary is by definition irrelevant to the outcome of the war. To the extent that these actions go against the principles of "modern civilized nations," they are to be banned. Thus, for example, "military necessity admits of all direct destruction of life or limb of armed enemies," and "of other persons whose destruction is incidentally unavoidable in the armed contests of the war."[12] But "[m]ilitary necessity does not admit of cruelty, that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.[13]

The Code goes on to provide a list of unlawful actions. First of all, wars cannot be made on civilians. It is illegal to destroy or appropriate the property of civilians, their means of livelihood, or to violate their dignity: "all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death."[14] Since wars are fought between states and not between individuals, the only property an occupying army has a right to appropriate is the property of the opposing government.[15] Furthermore, the principle of military necessity means that soldiers, once hors de combat, should be given protection and be adequately fed and clothed. It is not permissible to take individual soldiers hostage, to put prize money on their heads, to poison them or sell them into slavery.[16]

Lieber's Code did not stop all excessive use of violence to be sure. There were inevitably differences of opinion regarding which actions constituted "military necessity." Still, the rules were applied on the battlefield and they did have a civilizing influence on the engagements of the American Civil War. It was thanks to the Code that actions such as general William Sherman's scorched earth tactics in Georgia and South Carolina in 1864-65, easily could be identified as transgressions. In addition, Lieber's code was copied into the military manuals of several European states, including Germany's at the time of the Franco-German war. Moreover, the Code had a far-reaching impact on the codification of international law. Leading European legal scholars used Lieber's work as the foundation for their own treaties, and it provided the groundwork of several international agreements, including the Hague Conferences in 1899 and 1907, and most famously, the Geneva Conventions of 1929 and 1949.[17]

The Problem of "Small Wars"

The Lieber Code, we said, made a sharp distinction between soldiers and civilians. The soldiers of an opposing army are "public enemies" and as such they are legitimate targets for military action; civilians, however, are not. Only savage peoples, Lieber insisted, make war on civilians. Yet there is a problem of what to do with those who straddle the distinction ― partisans and rebels, unofficial part-time soldiers, not on a government's payroll. In Europe this had been known as the problem of "small wars," in French "les petites guerres" or in Spanish "las guerrillas." As Lieber explained: "[t]he term guerrilla is the diminutive of the Spanish word guerra, war, and means petty war, that is, war carried on by detached parties; generally in the mountains."[18] First applied to the partisans who harassed French troops during the Spanish War of Independence, 1807-14, the term covered the francs-tireurs employed by France in 1870 during the Franco-German war, and, in the twentieth-century, various independence fighters in the colonies. In the American Civil War, too, there were many of such informal partisan groups.[19]

Lieber discussed this topic in his Guerrilla Parties Considered with Reference to the Laws and Usages of War (1862) and he mentioned it in his Code of the following year.[20] The traditional answer had been to treat these ragtag fighters as criminals, This, indeed, was how they had been regarded during the first years of the Civil War. Yet Lieber, a sometime guerrillero himself, insisted that this was unfair. Wars of national liberation, or against monarchical oppression, can only be carried out by unofficial armies ― and the cause of such groups is often just. To criminalize them is a political choice, not a legal matter. Yet Lieber insisted that unofficial fighters had to take some definitive steps: they had to fight for public rather than private ends, belong to hierarchical military units. In addition, they had to wear a uniform or some other mark that distinguished them from civilians. If they fought only intermittently, "divesting themselves of the character or appearance of soldiers," they "shall be treated summarily as highway robbers or pirates."[21]

Prominent among the armed men who refused to take these steps were Native Americans. [22] The mid-nineteenth-century was the time when white settlers in North America, looking for Lebensraum, began moving into the territories of the Indians of the great western plains. Defending themselves, the Indians harassed and killed settlers without regard to the emerging stipulations of international law. The Indians belonged to no organized armies, their methods were often unspeakably cruel and, above all, they made no distinction between soldiers and civilians. To Indians, peaceful settlers, women and children, were all legitimate targets. The stories of Indian atrocities were quickly disseminated back east, universally condemned and soon calls were made for retribution. In this way, the war in quest for territory turned, from the White man's perspective, into a war between civilization and barbarism.

Francis Lieber was a nationalist, first on behalf of his native Germany and later on behalf of his adopted country.[23] As such he believed each nation had a unique destiny which it was its obligation to pursue. America was blessed by a republican set of institutions which made the country a unique haven for freedom. America's mission was to propagate its institutions and its values and to do this successfully the country had to maintain its identity. Although Lieber, in contrast to many of his contemporaries, never explained differences between societies in terms of genetic differences between people, he made clear that America was populated by English-speakers, descendants of Anglo-Saxons, and that the country did not need immigrants from elsewhere. [24] As for the Native Americans, their destiny was to be subdued. To Lieber this was an inevitable consequence of the progress of civilization, and, on the whole, hardly regrettable.[25]

With such an underlying mentality, it is no wonder that Lieber's laws of war never applied to Native Americans. The Indians were not, like Spanish or Confederate guerrilleros, temporarily, and misguidedly, descending into savagery; they really were "savages", constitutionally and irredeemably. With Indians no compromises were possible, at least not regarding matters of jus in bello. This is consequently where we find the limits of international humanitarian law. For centuries already, the European continent had constituted a state-system held together by mutual, and well-founded, expectations regarding reciprocity. Within this common setting, a certain set of rules could easily be insisted upon, and any breach could be condemned from the point of view of the shared normative framework. International law, as it developed in the nineteenth-century, was formulated by and for civilized, Christian, states inhabited by Europeans and their descendants.[26] During the American Civil War these connections were of course particularly close. The Confederate enemy consisted of their "brothers", people the war was supposed to bring back into the Union. It was only rational not to engage in actions "which makes the return to peace unnecessarily difficult."[27]

Fighting non-Europeans, and non-Americans, was quite a different matter.[28] Native "savage" warriors lacked, in Lieber's view, decency as they had no tradition of chivalry and no respect for jus in bello. Instead they routinely captured, scalped, and tortured their enemies; they disregarded cease-fires and flags of truce, acted treacherously and employed underhanded tactics. Most strikingly, they made no distinction between soldiers and civilians. To a savage, civilians—including women and children—are all legitimate targets.

The question is how such savage warriors ought to be fought. This topic was much discussed by lawyers and generals in the nineteenth-century. The next-to-unanimous conclusion was that when fighting an uncivilized enemy quite different rules apply.[29] The main responsibility of a commander is toward his troops and the aim is military victory. Winning wars against non-civilized people while protecting his men is not possible if the commander follows civilized rules of engagement. Although this does not mean that commanders should let go of all moral constraints, there is no doubt that small wars, in practice, are more ruthless. While Francis Lieber himself never explicitly drew this conclusion, it is implicit in everything he wrote, and the people who followed him most closely had no doubt that they had a license to act against "savages" in perfectly savage ways.[30]

The American Way of War

American society was always, even before independence, constituted in relation to a frontier, the other side of which was inhabited by "uncivilized" tribes. In the seventeenth century, the battles often began in Ireland where many of the settlers cut their teeth fighting "Irish barbarians" before continuing on across the Atlantic.[31] Once in place, the settlers in Virginia and New England had to contend with native inhabitants who, the English were convinced, were deficient both in religion and civility. In the mid-nineteenth-century the wars continued along the expanding western frontier: against the Cheyennes in 1864, 1878-79; the Apaches in 1864-86; the Comanches in 1867-75; the Sioux in 1862, 1866, 1876-77 and 1890. When the American land mass finally was exhausted, the frontier moved across the Pacific and into Asia. The Spanish-American War brought the U.S. in contact with guerrilleros in the Philippines and the Vietnam War pitted them against guerrilleros throughout Indochina.

What distinguished the enemies in all cases was their blatant disregard for the customary laws of civilized warfare. Yet the Americans moving west often more than matched their savagery. During King Philip's War, 1675-76, Indian villages were pillaged and burned, and bounties were set on all captives. The Indians who survived were sold as slaves or exiled to tribes further west. At the Sand Creek Massacre in November 1864, some 150 Cheyennes ― men, women and children ― were killed by the U.S. Army. At Wounded Knee, in December 1890, these atrocities were repeated.[32] In the Philippines, the US commander-in-chief made clear that no prisoners should be taken and that all Filipinos over 10 years of age ― everyone capable of bearing arms ― should be killed. A popular interrogation method was the "water cure" whereby prisoners were forced to drink water until they experienced a sensation of drowning.[33] At My Lai, March 1968, some 500 unarmed Vietnamese civilians were mutilated, sexually assaulted, and killed by American soldiers.

Looked at from this historical perspective, Bush's "Global War on Terror" can be seen as just another case of a small war. The September 11 attacks on New York and Washington where nearly 3,000 people died made no distinction between soldiers and civilians; it was a classical example of "savage" warfare. But equally familiar was the American reaction: the official aim was to "shock and awe" those who backed them in the Muslim world and to teach all terrorists that they picked a fight with the U.S. at their own peril. When the initial hopes regarding an easy victory were dashed, some U.S. commanders turned to savage methods, committing crimes against the laws of war. In the end, far more innocent civilians died in the Global War on Terror than in the initial al-Qaeda attack.[34]

It is important to recall that historically such actions in no way distinguish Americans from Europeans. The Europeans fought "savages" too and they fought them with equally savage methods. This, after all, is the story of much of colonial warfare. The atrocities committed by the French in Algeria in the 1840s and the British in India after the uprising of 1857, were at least as indiscriminate as anything the Americans ever did. The razzia practiced by the French laid waste to large parts of the Algerian countryside and forced civilians into starvation; French commanders asphyxiated women and children who had taken refuge in caves ― and they even went on to brag about it in the French parliament.[35] The British pillaged Delhi after it was recaptured in September 1857; razed all villages thought to contain rebel sympathizers and, most notoriously, tied the leaders to the mouths of cannons and blasted them off to eternity.[36]

Yet the American experience does differ from the European in a number of respects. Crucially, the Americans fought "savages" at home, defending and expanding their own territory, whereas the Europeans fought "savages" in far-away places, defending comparatively peripheral interests. For the Americans, these wars were always of relatively greater importance. In fact, apart from the war against Britain, Americans had not fought against civilized foes prior to the Civil War. They had turned their back on Europe, after all ― the whole point was that America was a new and different kind of country ― and as a result, Americans were never properly socialized into the legal framework which was emerging in Europe. And even during the Civil War it is significant that it took a European, Francis Lieber, to remind them of the rules that applied in warfare between civilized enemies.[37]

In conclusion, wars against "savages" have been a more important part of the American military experience than is commonly assumed ; perhaps it can be even said that it has marked out a distinctive "American way of war." Americans, officially at least, do not make war for the sake of territorial enlargement and given the oceans that surround their continent, America has never been invaded. All American wars are instead seen as "civilizational": they are fought against evil outsiders ― "evil Empires" and "axes of Evil" ― and they are said to concern the survival of American values and the American way of life. In fact, even when the enemy has been an ostensibly civilized country, such as during World War II or during the Cold War, it has generally been portrayed as distinctly "savage".[38]

Wars against "uncivilized" enemies always tend to produce a distinction between liberal do-gooders at home and the men at the frontier who are prepared to get their hands ""dirty". In Algeria these were elements of the pieds noirs; in India they were the British officers who strapped mutineers to cannons; in Iraq they were the "rotten apples" and their superiors in charge at Abu Ghraib. In Europe, since the wars against "savages" were of marginal importance, the men fighting them rarely had key positions in domestic politics. Liberal opinion could more easily dismissed them as eccentrics. In the United States, however, since the wars against "savages" were part of a formative experience, the frontiersmen were often able to gain a dominant influence. There is a liberal public opinion in the U.S. too, to be sure ― and it has often declared itself horrified at some of the actions of the military ― but this opinion has never defined the mainstream. Throughout its history America has been speaking with two voices: one civilized, the other obsessed with defending civilization. With President Obama, the "liberals" are back in power, the frontiersmen are in the docks, and Francis Lieber is read in order to castigate former Vice-President Dick Cheney. Yet, if history is our guide, this victory is likely to be only temporary.

About the author: Erik Ringmar received his PhD in political science from Yale University and was for twelve years a senior lecturer in the Dept of Government at the London School of Economics. He is currently a professor in Social and Cultural Studies at National Chiao Tung University, Hsinchu, Taiwan. His next book, Liberal Barbarism, deals with the Anglo-French destruction of the palace of the emperor of China during the Second Opium War.

Notes

[1] I am grateful to Brendan O'Leary, Diane Pranzo, Philippe Sands and Yana Zuo for their help with a previous version.

[2] Various memoranda pertaining to interrogation techniques are available at "Bush Administration Documents on Interrogation," Washington Post, June 23, 2004.

[3] On the direct involvement of the president and his leading officials in this policy, see John McCain and Carl Levin, Inquiry into the Treatment of Detainees in U.S. Custody (Washington D.C.: Senate Armed Services Committee, December 11, 2008).

[4] Quoted in David Stout and Scott Shane, "Cheney Defends Use of Harsh Interrogations," The New York Times, February 7, 2008.

[5] See, for example, Philippe Sands, "The Complicit General," New York Review of Books, September 24, 2009.

[6] Scott Shane, "Obama Orders Secret Prisons and Detention Camps Closed," The New York Times, January 23, 2009.

[7] For a biography see Ernest Nys' two-part article, "Francis Lieber: His Life and His Work," The American Journal of International Law, 5, no. 1 (January 1911): pp. 84-117; p. 5, no. 2 (April 1911), pp. 355-393.

[8] On the "liberal" nature of early nineteenth-century German nationalism, see Hagen Schulze, The Course of German Nationalism: From Frederick the Great to Bismarck 1763-1867 (Cambridge, University Press, 1991).

[9] See Henry W. Halleck, Elements of International Law and Laws of War (Philadelphia, J.B. Lippincott & Co., 1866).

[10] E. Nys, Francis Lieber, op. cit., p.378.

[11] Francis Lieber, Instructions for the Government of Armies of the United States, in the Field (New York, D. van Nostrand, 1863), §14, 4. See Burrus M. Carnahan, "Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity," The American Journal of International Law 92, no. 2 (April 1998): 213-231.

[12] Lieber, Instructions, §15:6.

[13] Lieber, Instructions, §16:7.

[14] Lieber, Instructions, §44:13-14.

[15] Lieber, Instructions, §§21-23, 8.

[16] Lieber, Instructions, §16:7; §148:33.

[17] Lieber's influence on J. C. Bluntschli is particularly clear. See Johann Caspar Bluntschli, Le droit international codifié (Paris, Guillaumin et cie, 1874).

[18] Francis Lieber, "Guerrilla Parties Considered with Reference to the Laws and Usages of War," [1862], in The Miscellaneous Writings of Francis Lieber, Volume 2 (London, Lippincott & Co, 1881), 278. Also available by clicking here.

[19] Dyer mentions guerrillas operating in Missouri, Arkansas and Kentucky. Brainerd Dyer, "Francis Lieber and the American Civil War," The Huntington Library Quarterly 2, no. 4 (July 1939), pp. 452-453.

[20] Lieber, Guerrilla Parties, pp. 275-92.

[21] Lieber, Instructions, §82:21-22.

[22] Jill Lepore, The Name of War: King Philip's War and the Origins of American Identity (New York, Vintage, 1999); Robert A. Williams Jr, The American Indian in Western Legal Thought: The Discourses of Conquest (New York, Oxford University Press, 1992).

[23] See for example "The Rise of Our Constitution and Its National Features," in F. Lieber, Miscellaneous Writings, pp. 17-85. For a critical discussion, see Merle Curti, "Francis Lieber and Nationalism," The Huntington Library Quarterly 4, no. 3 (April 1941), pp. 263-292; C. B. Robson, "Francis Lieber's Nationalism," The Journal of Politics 8, no. 1 (February 1946), pp 57-73.

[24] Lieber opposed immigration from East Asia and wanted to restrict immigration from Eastern Europe. He clearly regarded African-Americans as inferior to Anglo-Saxons and during his time in South Carolina he even owned slaves. His hope was, however, that African-Americans eventually would be absorbed by mainstream American society. See Curti, "Francis Lieber, op. cit., pp. 281-282.

[25] Ibid.

[26] Lieber, Instructions, pp. 24, 25.

[27] Lieber, Instructions, §16:7.

[28] Most nineteenth-century writers on international law made a sharp distinction between wars fought in Europe and in the colonies. See Elbridge Colby, "How to Fight Savage Tribes," The American Journal of International Law 21, no. 2 (April 1927), p. 280.

[29] Colby, Savage Tribes, op. cit., p. 279. Cf. Bluntschli, 1874, §512, p. 290.

[30] Colby, Savage Tribes, op. cit., pp.279-280.

[31] R. A. Williams, American Indian, chapter 1.

[32] See "Indians Tell Their Story: A Pathetic Recital of the Killing of Women and Children," New York Times, February 12, 1891.

[33] "The Water Cure Described; Discharged Soldier Tells Senate Committee How and Why the Torture Was Inflicted," New York Times, May 4, 1902.

[34] "New Study Says 151,000 Iraqi Dead," BBC, January 10, 2008.

[35] Henri Ideville, Memoirs of Marshal Bugeaud, from His Private Correspondence and Original Documents, 1784-1849 (London, Hurst and Blackett, 1884), 299-300.

[36] A contemporary account is "Blown Away," Household Words, March 27, 1858.

[37] Compare General Sherman quoted in E. Nys, Francis Lieber, 384.

[38] From this perspective Huntington's "The Clash of Civilizations" is incorrectly titled. The book is really concerned with the clash between "civilization and the uncivilized." See Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon & Schuster, 1996).

 



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