Lincoln's Code

by John Fabian Witt

  Outside the relatively narrow issue of wounded soldiers, however, the leaders of powerful states were highly suspicious of any attempt to extend Dunant’s humanitarian constraints into combat itself. Prussian military leaders objected vehemently to the barely concealed pacifist leanings of the humanitarian reformers. Field Marshal Helmuth von Moltke, the long-serving chief of staff of the Prussian army, spoke for many in Germany and elsewhere when he derided “perpetual peace” as “a dream,” and “not even a beautiful dream” at that. War, he insisted, fostered “the noblest virtues of mankind”—courage, self-sacrifice, and fidelity to duty. And although civilization had brought with it a general “softening of manners,” von Moltke warned that limiting the excesses of war was best left to the discipline of modern armies, not to the humanitarian efforts of lawyers and reformers. “The greatest kindness in war,” von Moltke told the prominent European international lawyer Johann Caspar Bluntschli, “is to bring it to a speedy conclusion.” Indeed, by the end of the century German officers worried that “it was impossible both to conduct a war successfully and observe the laws of war.” Military necessity, they insisted, took “absolute precedence over any considerations for the law and customs of war.”

  Reaching consensus on rules of conduct was made even harder by the dense thicket of European rivalries. Proposals from the Russians immediately came under suspicion in Britain and Germany, where statesmen searched for ulterior motives. Suggestions from powerful states such as Prussia seemed to threaten small states such as Belgium, whose efforts in turn seemed designed to make hostile occupation as onerous as possible for strong occupiers and as gentle as possible for weaker occupied nations. Whenever the laws of war implicated the balance of power, diplomatic efforts came to a standstill. If international lawyers were to gain the consent of the states of Europe, they would need to accommodate themselves to the claims of powerful armies while finding a way to sidestep the rivalries of European politics.

  THE AMERICAN GENERAL ORDERS of 1863 arrived on the European stage as a kind of deus ex machina in the emerging drama of the European laws of war, one that offered a way to break the logjam that had blocked negotiations over the laws of war.

  The document was instantly influential. As soon as Lincoln issued it, Lieber had sent copies to lawyers and statesmen in Berlin, Heidelberg, and Paris. European jurists understood exactly how useful the American contribution could be. Indeed, they sometimes seemed to claim American roots for their law of war projects whenever possible. Bluntschli dedicated his influential work to “Professor Dr. Franz Lieber in New-York” and credited “Präsidenten Lincoln” and “Professor Lieber” (“mein lieber Freund!”) as his inspiration. He cited Lieber as inspiring the Institute of International Law, an important organization he founded with other international lawyers in Ghent in 1873. His Modern Laws of War of Civilized States (Das moderne Kriegsrecht der civilisirten Staten), which became the Germans’ text on the laws of war in the Prussian wars with Austria and France, was little more than a translation of Lieber’s “Old Hundred.” Bluntschli’s work was littered with references to the American Civil War code (the Amerikanische Kriegsartikel). Five years later, Bluntschli drew on Lieber’s Code to put into print Lieber’s new term in the laws of war: “war crime,” or Kriegsverbrechen in the German. Lieber had used the term, though not in print. The idea had been implicit in the American experience from the Mexican War forward. Under the aegis of Lieber and Bluntschli, the idea of the war crime would shape the culture of warfare for at least the next century and a half.

  General Orders No. 100 inspired imitators all across Europe. Bluntschli’s work appeared in 1866 in Prussia. Military manuals on the laws of war followed in the Netherlands (1871), France (1877), Serbia (1879), Spain (1882), Portugal (1890), Great Britain (1894), and Italy (1896). Russia had a law of war manual in place by the time of the Russo-Turkish War of 1877–78. As the distinguished English jurist Henry Sumner Maine said, Lieber had set an example of “the formation of a practical Manual” that could be adapted to suit “the officers of each nation.”

  To harmonize the proliferating manuals on the international rules of warfare, members of the Russian foreign ministry developed Lieber’s code into a proposal for a pan-European conference in 1874. When an ambitious midlevel civil servant in the Russian Ministry of Foreign Affairs named Fedor Fedorovich Martens first suggested the conference, he prepared a private draft for the Russian war minister that carefully cross-listed the articles of Lieber’s code alongside the parallel provisions of his own proposed text. When the convention delegates assembled in Brussels in 1874, Martens introduced the initial draft convention as an amended version of Lieber’s work in the Civil War.

  Lieber’s handiwork in 1862–63 was indeed apparent in the Russian proposal. Following Lieber’s response to the 1862 prisoner parole controversies, Martens described the parole of prisoners as something permissible only with the consent of both the captor state and the captive’s own government. Lieber had responded to the guerrilla problem and the threat of slave insurrection by providing that noncombatants who rose up in a territory already occupied by the enemy were not legitimate combatants and were liable to be treated as criminals; Martens followed suit. And like the code of 1863, the Martens draft left vast discretion to the doctrine of “military necessity.” If necessity so demanded, even the execution of prisoners was permissible in Martens’s initial draft, just as it had been under the terms of Lieber’s code. Necessity, on Martens’s account as in Lieber’s, allowed the “seizure and destruction of everything that is necessary to the enemy in order to carry on the war,” as well as everything that “hinders the success of warlike operations.” As humanitarian critics noted at the time, even the gentlest provisions of texts like the Lieber code of 1863 and the Brussels Declaration of 1874 were shadowed by potentially eviscerating exceptions for the imperatives of military necessity.

  Crucially, the American example offered an ingenious solution to the most difficult and contested issue in European law of war debates. The questions about guerrilla fighters that had arisen in Mexico in the 1840s and that Lieber had addressed in Missouri in 1862 turned out to be very much like the fast-emerging problem of irregular soldiers in European warfare. Were irregular combatants eligible for the privileges of prisoners of war? In 1871, when French farmers had fired on Prussian occupiers, the Prussians had required that any combatant be commissioned by a competent authority or otherwise be treated as a criminal. The Prussians had executed Franc-tireurs by the score. But the Prussian policy proved hotly controversial. And in the aftermath of the Franco-Prussian conflict, insiders thought that the hardest question to resolve in the laws of war would be “to whom does the right of combatant belong, in the case when a war is one of peoples, when the population, or a portion of it, has taken up arms?” The strong armies of Germany proposed a hard-and-fast rule favoring occupiers. After the eighth day of a conflict, they said, the privileges of lawful soldiers ought to be extended only to those wearing uniforms and acting “in direct subordination to a supreme commander-in-chief”; all other fighters would be simple criminals from that day forward. Smaller states, however, refused to go along, no doubt imagining with trepidation the risk of future German occupation. Belgium, which had good reason for concern, argued in favor of the opposite rule. Populations rising in self-defense, the Belgians contended, ought to be given all the privileges of soldiers indefinitely.

  Lieber’s approach to the problem in 1862 cut through the knot of strong states and weak states. Martens, in particular, drew self-consciously on the functional strategy Lieber had crafted for defining soldiers and distinguishing them from criminal guerrillas. At Brussels in 1874, Martens adopted Lieber’s functional redefinition of legitimate combatants, minimizing the significance of formal commissions and official uniforms, and emphasizing instead characteristics such as command control, distinctive insignia or marks, the open carrying of arms, and the observance of the laws and customs of war. By the end of
the century, these four functional characteristics of soldiers had solidified into a widely accepted definition of the soldier, and indeed they have lasted as such into the twenty-first century.

  The American instructions of 1863 also helped men like Bluntschli and Martens distinguish themselves and the laws of war they meant to promote from the efforts of the secret pacifists at Geneva. Lieber’s personal views were far closer to those of the German von Moltke than they were to those of the Swiss Dunant. Bluntschli said of Lieber that he remained “fully aware that, in time of 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.” The code Lieber had drafted was made up of rules that could appeal to the strong states of Europe and even to the most unsentimental of Europe’s military men. Lincoln, after all, had adopted the code not to make peace but to make war. He had done so at just the moment when his nation’s wartime fortunes seemed at their nadir. And Lincoln had won his war.

  The American code had made the laws of war safe for the powerful states of late nineteenth-century Europe, just as it had for the Indian wars in the American West. In doing so, it touched off a battle over the meaning of international law in wartime. Would the laws of war be merely a tool for powerful armies? Or would accepting the idea of constraints slowly shape the conduct of strong states? Could a law of war that deferred to von Moltke also create meaningful moral limits on war’s destructiveness?

  IN A CONTEST for the soul of the law of war, Alfred Thayer Mahan would have played the Devil. An exceedingly tall man, with a bald pate, Mephistophelean beard, and baleful glare, Mahan was born on the campus of the Military Academy at West Point in 1840, the oldest child of Dennis Hart Mahan, who was the academy’s dominant figure for fifty years. From 1821 to 1871, the elder Mahan had adapted the axioms of French military strategy to instruct cadets in the conditions of American combat. He raised his children in a military spirit of rigorous and unquestioning adherence to rules. He gave his son the middle name Thayer in honor of Sylvanus Thayer, the superintendent of the Military Academy who had reorganized the school according to the professional standards of the French military model and defended its independence against Andrew Jackson’s political meddling. As a boy, the younger Mahan grew up at West Point in a household that combined what Mahan’s biographer calls “strict military obedience” with “a stern, literalist and fundamentalist form of Episcopalianism.” His father’s life was so bound up in the rigid order of the Military Academy that when Dennis Hart Mahan was at last forced out of the academy in 1871 at the age of sixty-nine, he stepped off the rear of a Hudson River steamboat into the vessel’s churning wheels and killed himself.

  It is too strong to describe Mahan’s life as a rejection of his rulebound upbringing, though some biographers have been tempted to do so. His great act of defiance—signing up for the Naval Academy in Annapolis against his West Point father’s wishes—looked more like thinly disguised emulation than rebellion. Yet one way or another, Mahan came to be known as a student not of rules but of power. Where his father had mastered the axioms of nineteenth-century tactics, Mahan became his generation’s great prophet of power at a moment in history when an increasingly strong United States had begun to wield global authority.

  In 1890, while serving as an instructor at the new Naval War College in Rhode Island, Mahan became a celebrity in the Atlantic world when he published a book entitled The Influence of Sea Power Upon History. Two years later, he published a sequel: The Influence of Sea Power Upon the French Revolution and Empire. Mahan’s thesis was that the exercise of power—and in particular the use of navies—propelled modern history. Over the next twenty years, as the world’s strongest states engaged in an arms race on the seas, Mahan became the voice of a new age of naval power. His work was translated widely and read around the world. Books and articles poured from his pen right up until his death in 1914. So great was Mahan’s influence that more than three decades later, Henry Stimson, who served as U.S. secretary of war in World War II, would remember the Navy Department of Mahan’s era as existing in “a dim religious world in which Neptune was God, Mahan his prophet, and the United States Navy the only true Church.”

  In virtually everything that he wrote, Mahan presented world history as the story of armed struggle. “Step by step,” he wrote, “man has ascended by means of the sword.” Mahan disavowed jingoism and wars of conquest. But he believed that just causes required powerful nations to use force to vindicate the right. “Power,” he contended, was “a faculty of national life” given to particular peoples by God, and God expected those peoples to exercise it righteously.

  Law was a thin reed in Mahan’s stormy battles for justice and civilization. Laws were mankind’s feeble attempt to codify universal moral imperatives. As a guide to moral action, he observed, they were often badly misleading. Some laws were simply unjust. In the pre–Civil War republic, Mahan liked to say, men of principle had defied fugitive slave laws. And rightly so. Nations, Mahan argued, had an even greater obligation to do justice in the face of misguided laws, for nations had a far greater capacity than individuals to use force in the name of righteousness, regardless of what the law said. Mahan conceded that it was dangerous to encourage lawbreaking. But he could come to no other conclusion than that it was a nation’s inescapable duty to evaluate its moral obligations without undue deference to the dictates of the law.

  Mahan’s low regard for law made him a striking choice when, on the eve of a new century, Secretary of State John Hay selected Mahan as a delegate to a conference in The Hague convened by Czar Nicholas II to hammer out a new international law of war and peace. And yet for Hay, the choice was a natural one. Thirty-five years before, Hay had served as President Lincoln’s private secretary. Now Hay chose a man very close to the ideas of war and law that Francis Lieber had infused into the code of 1863 and that Lincoln had developed over the course of his presidency. Lieber, too, had rebelled at elaborate legal schemes that sought to substitute themselves for first principles of justice. Now Mahan, by force of his ideas and his overpowering personality, became the dominant member of the American delegation at the conference that would turn the code Lincoln issued in 1863 into the founding document of the twentieth century’s laws of war.

  IN AUGUST 1898, the Russian foreign minister Count Muraviev surprised diplomats to the Romanov court by handing out a proposal for a conference on European disarmament and peace. (Ethan Allen Hitchcock, nephew and namesake of Civil War general Ethan Allen Hitchcock, accepted the message for the United States.) News of the czar’s initiative quickly electrified resurgent peace movements around the world. In the United States, in particular, where pacifists were still recovering from the blow of the Civil War, the inheritors of the antebellum peace societies reacted with a special jolt of enthusiasm. Here at last, in a conference convening the great states of the world, might be a forum that could live up to the grandeur of their ambitions.

  The enthusiasm of hopeful pacifists, however, was matched by the cynicism of diplomats and military men. Mahan saw the czar’s call for the Hague conference as a defensive reaction to the new fact of U.S. power after the brief Spanish-American War of 1898. The American ambassador in St. Petersburg wrote to Secretary of State Hay warning that the United States should discount “the humanitarian aspect” of the Russian proposal. In “the ordinary Russian mind,” he said, “the semi-oriental influences and traditions of the people have bred in them a slight regard for the value of human life.” Others speculated that the czar’s ministers were desperate to find a way to slow a European arms race with which the Russian treasury could no longer keep up. No wonder Andrew D. White, the longtime American diplomat chosen as the leader of the American delegation, expressed a “hopeless skepticism” about the conference’s prospects.

  In May 1
899, delegations from twenty-six countries gathered in The Hague. They represented twenty European states, as well as four from Asia (China, Japan, Persia, and Siam), plus two from the Americas (Mexico and the United States). The delegates met at the House in the Wood, a seventeenth-century summer palace built just outside of town for the wife of the Dutch Stadholder, Prince Frederick Henry of Orange. It was a stately brick mansion with crisp white window frames and exquisite gardens. Over the door to the conference room hung an allegorical painting (by a protégé of the Flemish painter Rubens) of the Peace of Westphalia, the system of seventeenth-century treaties that had brought an end to the brutal Thirty Years’ War and initiated the modern system of European states.

  But not even a felicitous site could overcome the obstacles standing in the way of agreements on most of the conference’s agenda items. When the delegates turned to the business at hand, it quickly became clear that arms agreements of the kind the czar’s ministers seemed to desire would be impossible to attain. Any agreement to freeze in place an existing technology, or to reduce the growth of arms budgets, would create winners and losers. No such agreement could gain the unanimous consent of the delegations. Secretary Hay, for one, had instructed the U.S. delegation flatly that they were not to enter into any arms limitations discussions because the U.S. level of armament was so low compared to European powers.

  Proposals for the peaceful arbitration of national disputes fared only slightly better. Arbitration was a favorite of the American peace movement, which saw the United States as international arbitration’s great champion. Twice in the nineteenth century—once after the War of 1812 and then again after the Civil War—the United States had successfully arbitrated disputes over British conduct in wartime. But arbitration, too, faced high hurdles at the conference. In particular, Germany opposed the idea of obligatory arbitration (Mahan did too), and the German position forced the Hague Peace Conference to adopt a watered-down system of purely voluntary arbitration. The English jurist Thomas Erskine Holland dismissed it as amounting “to really nothing.”