There is a superb new intervention in the effort to make sense of the place of the United States in the history of the laws of war. Helen M. Kinsella’s “Settler Empire and the United States: Francis Lieber on the Laws of War” in the American Political Science Review is a bracing, must-read exposition on how the laws of war are rooted in the dispossession and extermination of Native peoples. Kinsella takes aim at what is arguably the most significant U.S. contribution to the development of the laws of war — “General Orders, Number 100” or, as it is more commonly known, the “Lieber Code.”

Written by Prussian immigrant and political scientist Francis Lieber, the 1863 military field manual was formally adopted by the U.S. Army that same year under orders from President Abraham Lincoln. Since then, the name Lieber has become synonymous with U.S. interpretations of the laws of armed conflict. The American Society for International Law has its “Lieber Society on the Law of Armed Conflict.” The United States Military Academy at West Point has its Lieber Institute for Law & Warfare, named after both Lieber and his son, Guido Norman Lieber, who served as professor of law at West Point and later as Judge Advocate General of the U.S. Army. The literature on the Liebers and their legacy is substantial, stretching back at least as far as the historical writing of Elihu Root, who served as secretary of state from 1905 to 1909, and continuing through late-twentieth-century giants in the field like Theodor Meron. The Department of Defense’s Law of War Manual cites Lieber’s text as a crucial forerunner.

Writing about Lieber has continued apace in the twenty-first century. Recent literature on the Lieber Code, including my 2012 book, redescribes the code as arising out of the felt imperatives of Emancipation and the arming of Black soldiers. In this view, Lieber and the U.S. Army’s leaders designed the Code not to promote humanitarian restraint, but to empower righteous force on behalf of the Union and the antislavery cause.

Kinsella’s compelling article, by contrast, draws on the critical insights of the fast-growing literature on settler colonialism to argue that the Code and its author aimed to legitimize the exterminatory project of Native genocide. The Code was an “artifact of Native wars,” she contends, adding that it was “not a decisive or humanitarian break from the past,” but rather a continuation of the campaign of “Native dispossession and extermination” that had characterized U.S. history since the War of Independence and settler-colonial history for a century and more before that (p. 2).

In crucial respects, Kinsella’s article is right about each of these claims. Lieber helped establish the modern humanitarian law tradition. But he also believed that white settlers would replace Native peoples and that such replacement would represent moral progress for humanity. His famous 1863 Code carried forward long-standing ideas about combatant status and retaliation rooted in efforts to remove and kill Native people. The Code advanced fundamental distinctions in European international law between so-called “civilized” nations, on one hand, and “savages,” on the other, while presupposing that Native nations were not worthy of recognition in international law. To the contrary, Lieber thought of Native ways of war as the paradigmatic form of lawless, irrational combat, which it was the mission of international law to eradicate.

Lieber’s interpretation of the laws of war were heavily influenced by scientific racism—the pseudoscientific late nineteenth century view that biological evidence justified racist beliefs. He was a deep and abiding believer in a hierarchy of races, where “Teutonic” peoples presided over other races, a view shared by many European international lawyers and scientific racists at the time. In this sense, Lieber’s Code reflected and reproduced a virulent thread in the law of nations that preceded him by centuries and continues today.

In recent decades, the scholarly literature has rightly focused on the role of empire and racism in the history of international law. Kinsella admirably connects this literature with the crucial 1863 moment in the laws of war.

To be sure, versions of that connection already exist in the literature on the Lieber Code, though perhaps without Kinsella’s critical emphasis. Kinsella contends that my book, for example, “ignores the widespread practice of irregular war against native peoples” (p. 7), and that I miss the way the Lieber Code “criminalized Native warfare” and “facilitated the immunity of soldiers and often private citizens” when they killed Native people (p. 8). I am not so sure. The book contains chapters dedicated to both these subjects. My book described Lieber’s work as designed to empower strong states in armed conflict, which for the United States often meant Indian wars. As James Childress contended nearly a half-century ago, and as I, too, tried to emphasize, Lieber was a critic (not a supporter) of the humanitarian project of making war gentler. Moreover, the prevailing view on the Lieber text now presupposes (or should presuppose) that the laws of war in the European world were built expressly to promote and legitimize the violence of imperial states. The promotion of empire was a general background condition for the laws of armed conflict, shaping its structure and organizing its most foundational principles. The point is now inescapable in the scholarly literature.

At the heart of Kinsella’s article is a quandary for historical explanation in international law and the law more generally. What is the right frame for understanding the watershed moment of 1863 in the laws of war? Is it settler colonialism or Emancipation?

Kinsella is dismissive of my claim that Emancipation was the “quintessential event for the laws of war in American history” (p. 11). And she is right that to make sense of Lincoln’s General Orders No. 100, we can hardly overlook settler colonialism and the violent extermination of Native peoples, both of which (as Kinsella rightly points out) were “a condition of emergence” for the Lieber Code, in no small part because they were central to the entire law of nations project (p. 2). Kinsella’s intervention is a powerful reminder of this fact, though the prior literature can hardly be said to “wholly efface” the point.

At the same time, the displacement and extermination of Native peoples – what would amount to genocide by today’s standards – long preceded Lincoln’s 1863 order and continued for decades beyond it. Warfare between the United States and Native peoples required no formal remaking of the laws of war either before, during, or after the war, in large part because the existing regime so effectively supported the settler colonial project. Lincoln could and did (as Kinsella points out) order the 1862 execution of 38 Dakota men convicted in a military commission of massacring white settlers without remaking the law of armed conflict (pp. 7-8). Massacres were committed at Sand Creek—where the U.S. Army deliberately attacked non-combatants in Cheyenne and Arapaho encampments in 1864 – and elsewhere without prompting any formal changes to the law.

By contrast, Emancipation and the arming of 200,000 Black soldiers gave Lincoln and his administration powerful reasons to formally transform the laws of war. Emancipation produced a distinctive crisis for the United States’ theretofore long-standing pro-slavery approach to the laws of war. Emancipation also yielded a series of practical controversies around the combatant privileges of Black soldiers, the legal status Black prisoners of war, and the prospect of Black uprisings behind Confederate lines.

Ultimately, histories of the Lieber Code and of the laws of war in American history need not choose between Emancipation and settler colonialism. Kinsella need not diminish the distinctive significance of the Emancipation moment to make her valuable point that Native warfare shaped the terms of Lieber’s text in much the same way it had conditioned the laws of war in the Americas (and elsewhere) for centuries. Such conflicts can hardly explain why the United States produced the Code when and how it did. But Kinsella is surely right that Native conflicts powerfully influenced the Code and the culture from which it came.

Interestingly, Kinsella’s scholarship does not yet seem to take a position on an emerging debate on what might be described as the paradox of inclusion and exclusion in the laws of armed conflict. In the early nineteenth century, the Euro-American laws of war largely excluded Native peoples from their ambit. U.S. soldiers in the age of Andrew Jackson scorned the idea that the laws of war applied to Native nations and combatants. Military men like Jackson behaved accordingly, often with brutal violence. The Lieber text, by contrast, reflected and advanced an ambitious expansion of the formal terms of the rules of war to include Native wars. Yet that expansion did not constrain violence against Native peoples so much as facilitate and legitimize it, as I have observed elsewhere (see Lincoln’s Code at pp. 332-35 especially).

From the age of Ulysses S. Grant to the era of Theodore Roosevelt, the U.S. military leaned on the laws of war to accomplish many of the same destructive ends it sought to achieve a century earlier without the formal application of the laws of war. I have argued (and others agree) that this represented a violent inclusionary turn in the American laws of war, one that General Orders No. 100 inaugurated. Inclusion in this sense was not premised on humanitarian concern – and it was not good news from the Native perspective. If the 1863 Code aimed to win the Civil War, the expansion of the laws of war to encompass Native conflicts aimed to support the United States in its late-nineteenth-century Indian conflicts. Critics of this view disagree, observing no significant late nineteenth-century turn toward Native inclusion as a strategy of empire.

Either way, the most exciting feature of Kinsella’s article is the foundational puzzle it raises for legal historical interpretation. What counts as an adequate historical explanation when the regime under study is pervasively conditioned by empire? On the one hand, empire’s ubiquity powerfully conditioned the Lieber Code, as it did virtually every development in the nineteenth-century laws of war. On the other hand, the very fact of empire’s pervasiveness limits its capacity to explain the distinctive features of something like the Lieber Code. Neither the Code’s special vices, nor its particular virtues, stand out in Kinsella’s account. And that is a loss – for it undoubtedly had plenty of both.

IMAGE: Soldiers lining up (via Getty Images)