David Bosco in The American Scholar has a nice precis of Lieber’s Code, the world’s first officially issued guidelines for the conduct of war. Published by the U.S. War Department at the height of the Civil War, the code takes its name from its author, the German American jurist Francis Lieber, who persuaded Union general in chief Henry W. Halleck that a set of guidelines was needed.
As Bosco notes, Lieber’s Code had scant influence on Union generals but enormous influence on the subsequent development of international law concerning the conduct of war, especially the Hague and Geneva Conventions — what might be called Lieber’s Code 2.0. Those rules of war came under tremendous pressure in the twentieth century, and in an era in which asymmetric warfare by non-state enemies is the norm, they may be badly outdated.
Why not then craft a new code or revise the old ones to deal more effectively with today’s conflicts? As the realities of warfare have changed, the law has changed many times to adapt. Some specialists have argued that a new protocol is needed to better define who is entitled to prisoner-of-war status, what force is appropriate against nonstate terrorist networks, and what rules should govern interrogations. The realities of today’s conflicts, they contend, no longer fit the legal structures society has developed. In effect, a new Lieber is needed for today’s General Hallecks.
Unfortunately, the prospects for another “Lieber moment” appear slim. Many American leaders feel estranged from recent developments in international humanitarian and criminal law. The bewildering network of international conventions, courts, and commissions that is so inspiring to activists often appears menacing to those officials responsible for security policy. The ICC’s birth, for example, occasioned far more handwringing than applause in the Pentagon and the State Department. The pride Lieber felt about being part of the international effort at codification has all but dissipated in government circles. . . .
Lieber and Lincoln proudly published their code, flawed and ambiguous though it was. The nation’s current leadership has preferred secret memoranda and strained interpretations. Too often now, the noble effort to expand and codify the international law that Lieber gloried in no longer appeals to the world’s most powerful state. For the good of international law and of the United States, that must change.
(Hat tip to Abu Muqawama via Jonathan Winkler)
7 Comments
Mark,
With the current attitude of American exceptionalism (in many quarters), I don’t see much support for developing a new version. Pity.
“Many American leaders feel estranged from recent developments in international humanitarian and criminal law. The bewildering network of international conventions, courts, and commissions that is so inspiring to activists often appears menacing to those officials responsible for security policy. The ICC’s birth, for example, occasioned far more handwringing than applause in the Pentagon and the State Department. ”
It isn’t confusion, it’s clearly the fact that the present leadership of the USA wants to *lower* standards, not to raise them.
I think the original post is saying there’s more to the US position on Wartime Conduct than either of the commenters recognize. It seems to say that while US officials remain uncomfortable with European efforts to codify 19th century rules, that doesn’t mean they reject the idea of standards for conduct. It is possible to both support the idea of standards and to believe that we need to rethink what our standards should be in an age of conflict that looks very different from the one in which the European codes (or should I say American?) originated. Personally, I suspect that movement would be more productive than bashing the administration for rejecting European projects.
If someone was to creat a new Lieber’s Code, It looks to me anyone with the ability and knowlege could do it. Lieber did it.
Interesting, but I would ask for clarification as to what is meant by “world’s first officially issued guidelines for the conduct of war” -Grimsley
As there where strict codes in place governing the behaviour of members of other armed forces, the Royal Navy’s Articles of War for example can be traced back to 1653 when they where issued by the Lords Commissioners of the Admiralty.
By way of clarification, Lieber’s Code is generally considered the world’s first officially issued guidelines for the ethical conduct of war — to put it in legalese, the first official attempt to codify the jus in bello.
There is a new Lieber Code — the substantive provisions of the law of war in the Statute of Rome, which the International Criminal Court is to enforce. http://www.un.org/children/conflict/keydocuments/english/romestatuteofthe7.html The United States disagrees with much of it, particularly as it governs the use of firepower supposedly disproportionate to “concrete and definite military advantage.”