In our Books We’ve Read section, Just Security frequently provides in-depth summaries of books related to national security law and policy. These summaries are meant to be faithful synopses–one which the books’ authors and critics would all (ideally) agree reasonably reflects the content of the book. Accompanying each of these synopses, some of our Editors weigh in with their views of the book.
Today, we are happy to feature a book review from Just Security’s David Luban on Lincoln’s Code: The Laws of War in American History by John Fabian Witt. A response from Witt will be posted later today on Just Security.
John Fabian Witt, Lincoln’s Code: The Laws of War in American History (New York: Free Press, 2012)
Review by David Luban
Yale legal historian John Fabian Witt has written a superb, illuminating, and startling history of U.S. involvement with the laws of war, from the Revolution to the beginning of World War I. As Witt tells the story, U.S. thinking on the rules of warfare has always blended an authentic commitment to high principle with a generous measure of low pragmatism—and often low pragmatism disguised itself as high principle. A telling example is the early American understanding of whether the rules of war permit the confiscation of enemy property. U.S. jurists argued no, cloaking their arguments in the rhetoric of humanitarian progress, but Witt shows that the protection of slaveholders’ human property was uppermost in their minds. U.S. lawyers were also not above abruptly changing their principles if the national interest changed. When the young American republic chose neutrality in the European wars, its lawyers insisted that the law of sea war protects neutral shipping. During the Northern naval blockade of the South in the Civil War, U.S. lawyers swiftly reversed course and argued the opposite.
There is nothing uniquely American about the phenomenon: none other than the Dutch jurist Hugo Grotius, the “father of international law,” changed doctrines between editions of his masterpiece in synch with the changing needs of the Dutch East India Company. It was not just the Bush administration’s lawyers who cut the cloth of humanitarian law to fit the momentary needs of their client. Witt demonstrates that the pattern has recurred from the earliest days of the republic. But he is not a cynic or a debunker: he takes pains to read his subjects’ arguments carefully and takes their stated principles seriously.
The book opens with the story of how the young George Washington “became for a short while the world’s most notorious violator of the laws and usages of war” (because of a claim that his troops murdered a prisoner of war), and it ends with the astonishing history behind the 1914 U.S. Rules of Land Warfare—written by Army Colonel Edwin Glenn, who a decade earlier had been court-martialed for masterminding the U.S. campaign of water torture in the Philippines. Yet Witt explains that Washington spent the rest of his career redeeming his honor and promoting the laws of war, while Glenn conscientiously built into his Rules the very prohibition of torture he was convicted of violating. Clearly, this is a history in which ironies abound—in which both statesmen and lawyers often rise above their low interests, and just as often sink below their high professions of principle.
Between the parentheses of Washington and Glenn, Witt tells an even more astonishing story about Lincoln and the Emancipation Proclamation. As is well known, Lincoln used his constitutional authority as commander in chief to free the slaves, arguing that emancipation would further the war effort and was militarily necessary. What is less well known is that earlier in the war both the Confederates and Lincoln’s own generals and cabinet regarded emancipation as a horrifying violation of the laws of civilized warfare. In their eyes, it would unleash “servile insurrection”—in the words of a Pennsylvania newspaper, a “horrid policy of unloosing the bonds of four million slaves, and setting them against the Caucasian race,—to murder, pillage, and destroy, without stint, until their barbarous appetites may be appeased” (205). Union commanders made suppression of servile insurrections a top priority, and Union General George McClellan, an open racist, took pains to reassure Virginia whites that he would “crush any attempt” at a slave revolt—which would have meant suspending hostilities against the enemy while he turned his guns against their slaves. In McClellan’s views, emancipation inviting servile insurrection would violate “the highest principles known to Christian Civilization” (210).
It was partly to recapture the moral high ground from these critics that Lincoln commissioned Francis Lieber to draft a legal code of warfare that he could display to the world. Lincoln also understood that such a code was necessary to protect captured black Union soldiers. Lieber’s General Order No. 100—“Old Hundred”—became the model for all subsequent codifications of the laws of war, even those with very different content.
Lieber’s biography embodies all the contradictions in Witt’s subject. One of Lieber’s sons was badly wounded fighting in the Union army; a second was killed fighting for the Confederates; a third eventually became the Army’s head JAG. Lieber himself was a veteran of the Napoleonic wars who had been badly wounded; he nevertheless adored war and scorned the “simpering sentimentalist[s]” who thought war could be waged humanely. He is a very improbable patriarch of humanitarian law.
For Lieber it was an article of faith that “short, sharp” wars—wars waged fiercely and ruthlessly to bring about quicker surrender—are actually more humane than wars constrained by humanitarian rules. This was a common argument among military men and jurists, both within and without the United States; we can hear its echoes in modern debates over whether dropping the atomic bombs on Japan actually saved lives. It was Sherman’s “war is hell” argument, and Witt explains that it was an argument presaged and echoed by hard-nosed realists including Machiavelli, Frederick the Great, Clausewitz, and Moltke. And it is an argument with impressive tactical uses: Witt shows us how U.S. representatives negotiating the first Hague Conventions trotted out the sharp wars thesis to fend off humanitarian rules they disliked.
What is remarkable about the sharp wars thesis is its utter lack of empirical basis. Obviously, there is no way to test whether more or fewer lives would have been lost if a war had been fought differently under different rules. There is nothing “realist” about an argument couched in the idiom of alternate-reality fiction. Nevertheless, it played a powerful role in Lieber’s thinking, and Witt argues that the sharp wars thesis led to a code that nearly everywhere subordinates humanitarianism to military necessity—a harsh view of military necessity that by 1863 Lincoln had come to embrace as well.
Witt may overstate the ferocity of Old Hundred’s doctrine of military necessity. Lieber confines necessity claims to “those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war” (article 14). Under Lieber’s formulation, military necessity never permits law of war violations, and it restricts military necessity to measures that are genuinely indispensable. This is substantially more restrictive than the post-World War II formulation in the Nuremberg Tribunals’ Hostages case: “Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.” Hostages permits militaries to count small savings of time or money as military necessities; Lieber does not make this mistake. Nevertheless, Witt convincingly shows that Lieber managed to insert necessity exceptions into many of his rules.
Elsewhere I have argued that both Lieber’s and the Hostages formulations are too harsh, because neither takes civilian interests into account. A better approach to military necessity than either Lieber’s or the Hostages case is that taken a few years ago by Israel’s Supreme Court, which focuses on the marginal advantage of the military’s favored course of action over the next-best alternative and weighs that marginal gain against the marginal harm inflicted on civilians. Including civilian interests in the concept of military necessity may sound odd, but it is essential if claims of military necessity are going to justify violence. Inflicting grave damage on civilians in order to achieve military gains cannot be justified by claiming “military necessity” if the gain in military advantage over alternative strategy or tactics is slight. Slight advantage can justify only slight damage.
Contemporary readers will notice that many of the long-forgotten debates that Witt lucidly explains sound very similar to post-9/11 debates over the laws of war. That by itself makes Lincoln’s Code worthy of serious attention. Happily, the book has literary virtue as well: Witt writes tightly and clearly, and he knows how to tell an exciting story. The book amply deserves the prestigious prizes it has won: Columbia University’s Bancroft Prize, the Law and Society Association’s Hurst Award, and the ABA’s Silver Gavel Award. Lincoln’s Code takes the story only as far as 1914. One hopes for a sequel that tells the story of our last century’s law of war adventures.