The development of the modern law of war is often seen as a process of ‘humanization’.Footnote 1 In this view, the law's evolution tells a story of measured progress, from rules once dictated by state interests towards norms increasingly aimed at affecting the humane treatment of individuals, on and off the battlefield. According to this view, today's international humanitarian law represents a pinnacle of achievement of the laws of war project.
Parallel to progressive accounts, one finds a predisposition to emphasize humanitarian sentiment in earlier legal prescriptions, war practices, and writing on war, treating these as precedents lending the moral authority of history to the ‘humanity in warfare’ project.Footnote 2 Such accounts tend to accentuate the humanity in restraints legislated, practised or theorized by and for past belligerents and occupants. If progressive accounts hail the 1949 Geneva Conventions as the height of humanitarian achievement, other accounts commend the humanity expressed by the 1874 Brussels Declaration, the 1880 Oxford Manual, or the 1899/1907 Hague Regulations.Footnote 3
Nowhere is this ambivalence more patent than with the Lieber Code.Footnote 4 Frequently referred to as ‘the first modern codification of the laws of war’,Footnote 5 it was commissioned by the Union government and promulgated by President Lincoln in the midst of the American Civil War. Though authored by a private person, its impact on subsequent codification of the laws of war and its development was considerable.Footnote 6 Thus, the Lieber Code is acknowledged as the basis for the Brussels, Oxford, and Hague texts, but also commonly credited for the humanity pervading its provisions.Footnote 7
Consider the case of the law of occupation, one of the first areas of the laws of war to be codified in modern times – starting with the Lieber Code. While the Code's contribution to the development of humanitarian norms governing occupied territories is commonly acknowledged,Footnote 8 progressive historiography ascribes early modern occupation law – again, starting with the Code – with a limited humanitarian motivation or impact. It identifies the law's transformation into a truly humanitarian instrument with the 1949 Fourth Geneva Convention. Thus, Article 47 of that Convention is perceived as a provision ‘of an essentially humanitarian character; its object is to safeguard human beings and not to protect the political institutions and government machinery of the State as such’.Footnote 9 The law of occupation in the Fourth Convention is accordingly perceived as ‘primarily motivated by humanitarian considerations’.Footnote 10 Humanity in occupation today expresses a concern for the human dignity of individuals and civilian populations who find themselves under an occupation.Footnote 11
By contrast, the 1899/1907 Hague Regulations are perceived to have furnished individuals with only rudimentary protection against the occupant.Footnote 12 And, unlike Article 47 of the Fourth Geneva Convention, their Article 43 also protected ‘the separate existence of the State, its institutions and its laws’.Footnote 13 Thus, the law contained in the Hague Regulations is depicted less as the product of an effort to humanize civilized warfare and more as a legacy of a personal sovereignty era, a means of preserving the power bases of the European ancien régime as well as the European public order itself against the threats of revolution and nationalism,Footnote 14 or as a diplomatic compromise between weak and powerful states.Footnote 15 Such accounts imply that whatever concept of humanity existed in early modern occupation law was nebulous, primitive, and unavoidably limited.
Reconciling this ambivalence is possible; the Lieber Code may therefore truly represent a humanitarian achievement for its time, while at the same time foretelling subsequent progress. In other words, the Code may embody an essential link between past and present in the story of the emergence of the modern humanitarian law of occupation and, equally, in the shaping of the contemporary meaning of humanity in war. This assumes that the sense of humanity underpinning the Code's provisions on occupation is comparable and related to that informing today's law of occupation. This article challenges that assumption, however. It argues that, while the Code is undoubtedly crucial to understanding how the modern law of occupation evolved, a different sense of humanity pervades its provisions. Lieber's sense of humanity in war and occupation is not comparable to the individual-oriented sense of humanity associated with contemporary norms such as Article 27 of the Fourth Geneva Convention. Identifying his sense of humanity therefore paves the way for critical reflections on the forces, ideas, and visions that shaped the contemporary law of occupation; it also raises questions on how that law is historicized.
In order to trace Lieber's different sense of humanity, I first place his contribution to the development of the law in historical context, suggest a number of methodological imperatives for approaching the Lieber Code, and provide some background on its making. Next, I discuss the sense of humanity underpinning Lieber's political theory. Here I present his views on the relations between individuals, society, and the state; nationalism and inter-nationalism; and war and peace. These are essential for deciphering the sense of humanity underpinning the Code's provisions. I move on to demonstrate how these views inform Lieber's concept of occupation – and his sense of humanity in occupation. In evaluation of Lieber's different sense of humanity in occupation, I then argue that his humanitarian imperative was not the protection of individuals but, rather, the preservation of a modern vision of international order. In the conclusion, I discuss some implications of these findings.
Approaching Lieber
A number of preliminary matters need to be addressed before delving into Lieber's sense of humanity. First, we need to consider its historical intellectual context. We need, in other words, to assess his ideas against some baseline in the development of the modern concept of humanity in war and occupation. Next, identifying Lieber's sense of humanity requires a broad inquiry into his other works and the context of the Code's making. These help expose, and avoid, some prevalent misconceptions about the Code, its authority, and its relevance to the law of occupation.
Occupation before Lieber
The very advent of the modern occupation category commonly represents law's humanization and progress. Existing accounts trace its rise to late nineteenth-century codification of ideas and practices seeking to limit the right of conquest in the preceding two centuries: ‘The idea of occupation of enemy territory was formed when the right of conquest was rejected as too brutal’.Footnote 16 The occupation category formed a modern departure from and a limitation on conquest. Previously, conquerors were at liberty to acquire good title over territory and to ‘dispose’, as Vattel put it, of the inhabitants with equal licence.Footnote 17 The emerging new category of ‘mere’ occupation was driven, it is commonly perceived, by a desire to impose humanitarian restraints on the conqueror.Footnote 18
There was, however, another potent motive for imposing procedural restraints on conquest. In Vattel's 1758 The Law of Nations and Heffter's 1844 Das Europäische Völkerrecht der Gegenwart,Footnote 19 occupation was conceptualized as a transient, indeterminate phase preceding final decision in the field. To limit the liberties of the conqueror vis-à-vis the peaceful civilian populace and private property during and after the campaign, Vattel proposed extending civilian immunity to their property in addition to their person:Footnote 20
In the conquests of ancient times, even individuals lost their lands … the quarrel was in reality the common cause of all the citizens. But at present war is less dreadful in its consequences to the subject: matters are conducted with more humanity: one sovereign makes war against another sovereign, and not against the unarmed citizens. The conqueror seizes on the possessions of the state, the public property, while private individuals are permitted to retain theirs. They suffer but indirectly by the war; and the conquest only subjects them to a new master.Footnote 21
Vattel's allusion to humanity is visible and appealing, but he was equally concerned with ‘stability in the affairs of mankind’ and certainty in lawful acquisition by conquest.Footnote 22 Conquest, by itself, was insufficient to secure a stable transfer of title, but was a necessary preliminary to acquisition pending the outcome of the war. Rather than devising a novel category, Vattel sought to ensure order.Footnote 23
Vattel dealt with territory; post-Revolutionary Heffter was attentive to public authority. In cases not involving complete subjugation, he wrote:
By the mere occupation of the other side's territory or part thereof, the invading enemy does not immediately replace the former state authority, for as long as the invader continues the war, when it is still possible that the fortunes of the war will change. … From a legal perspective, the defeat of the enemy does not immediately bring about the complete subjugation of the enemy's state authority.Footnote 24
Heffter therefore elaborated an explicitly novel distinction between conquest and occupation. Its rationale developed Vattel's emphasis on stability and certainty: fortunes of war may still change.Footnote 25 However, he then underscored the notion that the occupation category was to serve interests of order. For Vattel, by contrast, humanity and order both drove the identification of a provisional state of affairs preceding decision on the battlefield and the notion that possession by itself, unconsolidated and therefore reversible, could not be a sufficient requirement for a stable, legally certain change.Footnote 26 This nexus between considerations of order and humanity is crucial, as we shall see, for understanding the Lieber Code's treatment of occupation.
The Code's context and its making
In the Code, Lieber entwined notions of humanity and order to forge a bold vision, now largely forgotten, of the future. He constructed a comprehensive, purposive system for the legal regulation of war, in which humanity was both a foundation and a progressive end product, yet, at the same time, was consciously designed as an instrument of order. Approaching Lieber and exposing his sense of humanity in occupation therefore requires some observations on methodology.
Allusions to humanity in the Code that Lieber prepared in the midst of the American Civil War cannot be lightly assumed to correspond to any sense in which the term is used today. The Code has had an enduring impact on the development of the law of occupation, but Lieber's sense of humanity and his sense of occupation significantly differ from all that was to follow his work. These are hard to discern without a broader inquiry. One must approach the Code as one item in a broad modernist theoretical – and ideological – manifesto consisting of Lieber's other published works, teaching, and correspondence.
Lieber never wrote a general treatise on international law or a topical tome on the laws of war. What we may read in the Code's provisions on occupation must come from the study of the Code's overall scheme and from other works that he authored. His letters contain useful telltales on his motives and reasoning.Footnote 27 His Columbia Law School lectures on the ‘Law and usages of war’ and pamphlets published during and after the Civil War often read as precursors to or a putative commentary on the Code.Footnote 28 Finally, the Code draws heavily on Lieber's earlier works, most notably his Manual of Political Ethics (1838–1839).Footnote 29 These reveal the Code to be a product of a general and pre-existing ethical system, intellectual method, and political theory. They supply the insights necessary to decode Lieber.Footnote 30
What likewise compels a broad inquiry is the aforementioned historiographical ambivalence to the Lieber Code. On the one hand, his contribution to the modern law of war is universally acknowledged, and ‘founding father’ designations are common. Lieber is credited for having authored the first modern codification of the laws of war, and is no less praised, by contemporaries and present commentators, for the ‘spirit of humanity’ that ‘everywhere reigns’ in the Code.Footnote 31 They note the Code's immense impact on the subsequent codification of the law of war, including occupation;Footnote 32 it inspired and gave impetus for private development of the law.Footnote 33 Others trace its visible imprint in the 1949 Geneva Conventions and the 1977 Additional Protocols.Footnote 34 Some point out that the question of occupation is the first addressed in the Code, others that a third of its 157 provisions concerns occupation.Footnote 35
Other, progressive, accounts downplay the Code's humanizing effect. Many observe (erroneously, as I show below) that the Code was designed to deal with civil war and assume that it has limited relevance to the regulation of occupation, which is essentially an international armed conflict phenomenon.Footnote 36 Lieber's terminology – such as ‘martial law’ – facilitates such views.Footnote 37 Some critique the Code's expansive treatment of military necessity and the ‘extreme views of the rights of the military occupant over the inhabitants of occupied territory’ that it embodied.Footnote 38 Others highlight the ‘cardinal position assigned to the notion of order … [which] was so absolute that it appeared to be reified’, implying the inferiority of humanitarian values.Footnote 39 Various accounts note the low authority of a private individual. The ensuing tension commends reading the Code's provisions against a broader context and free, if possible, from ideological filters other than Lieber's own.
Finally, approaching Lieber requires some familiarity with the Code's making. For present purposes, it may be recalled that his interest in the laws of war long preceded the Civil War; but the war was what provided Lieber, who started teaching international law at Columbia College in 1857,Footnote 40 with an opportunity to put his views on war and law into the service of the Union cause.Footnote 41 After several attempts to convince Washington of the necessity of codifying the laws of war, Lieber was appointed, with four generals, to a board tasked ‘to propose amendments or changes in the Rules and Articles of War, and a Code of Regulations for the government of armies in the field, as authorized by the laws and usages of war’.Footnote 42 The Board left the laws of war to Lieber. He first proposed a 97-clause draft, requesting ‘suggestions and amendments’.Footnote 43 This he revised, based on his own thoughts and some suggestions coming mainly from General Henry Halleck.Footnote 44 The new version was discussed in Washington; some changes were made,Footnote 45 but he endorsed the final product without reserve.Footnote 46 Lincoln promulgated the Code in May 1863. It was largely the product of one man.
The Code's making clarifies that, though tasked with addressing the Civil War, Lieber authored a broader document. Many of its provisions bear the mark of the Civil War – both Lieber and Halleck were preoccupied, for different reasons, with the authority of military governorsFootnote 47 – but there can be no doubt that Lieber sought to codify regular, inter-state wars. The evidence is conclusive: of the Code's ten sections, nine deal with ‘regular war’; the last, ‘Insurrection – Civil war – Rebellion’, was not part of the February draft. It was added as ‘something of an afterthought’ and only at Halleck's insistence, based on instructions that he had previously issued.Footnote 48 Lieber ‘derelished’ the addition;Footnote 49 his ‘projet’ was to have universal relevance, and so had to cover ‘regular’ war.Footnote 50
Moreover, Lieber took care to clarify that the regular war institution of occupation could be imported to civil wars. The Code's rules were meant for regular war; but it explicitly foresees the ‘partial or entire’ discretionary ‘adoption of the rules of regular war to war rebels’ (Article 152). Among the rules that could be so adopted for rebels was that concerning ‘proclaiming Martial Law in their territory’ (Article 153). ‘Martial Law’ was Lieber's codeword for the occupant's military authority. He took equal care to emphasize that doing so or any ‘act sanctioned or demanded by the law and usages of public war between sovereign belligerents’ did not imply recognition of the rebels (Article 153).
The Code, as indicated above, was largely the product of a single author.Footnote 51 What is more, Lieber's earlier writings are manifest in many of its provisions and give crucial hints as to the Code's interpretation.Footnote 52 It was original in many respects, not least in its integrative method.Footnote 53 Bluntschli – who transposed the Code to German – hailed Lieber's personal triumph in the scholarly synthesis of ‘these opposing tendencies’, positive and natural law, the ‘union of the philosophical and historical methods’.Footnote 54 Outside the Code, Lieber indiscriminately quoted historical precedent, both classical and modern, but regularly shared with his reader an explicitly modern reasoning for the rules that he discussed.
The Code's enduring impact owes much to Lieber's synthetic methodology. For all its flaws in style and organization, it presents ‘a mature and logically consistent system, developed and systematized over many years of thinking and teaching’.Footnote 55 He did not devise rules ‘ad hoc, but rather based them on his own systematic interpretation of war and international law’.Footnote 56 As such, the Code cast many of the forms of today's law of war, its methods, philosophy, and ideology. Above all, it rationalized the modern law of war, embedding in its provisions the author's distinct sense of humanity.
Lieber's sense of humanity
Lieber's occasional allusions to ‘humanity’ in the Code and elsewhere often give rise to his appraisal as an early architect of the ‘humanity in war’ project. Yet, reading the Code as a whole, in light of his other works, reveals a unique sense of humanity that forms an integral part of an aggregate theory encompassing the individual, the nation-state, and international society. This sense of humanity compels a revision of how the Code (and the law of war) is historicized.
Humanity as condition and as vocation: the individual, society, and the state
Lieber's essays reveal a dual sense of humanity: on the one hand, an observation on conditions of human nature from which emanates a theory of the individual, society, the state, and international society; on the other, a civilizational vocation to which individuals and their organizations are subordinate. Lieber started with the individual, but framed this discussion in societal and institutional contexts. His manFootnote 57 was a rational – hence an ethical and ‘jural’ – being, who ‘consciously work[s] out his own perfection; that is, the development of his own humanity’.Footnote 58 Rationality, for Lieber, was a moral facility to distinguish between good and evil; as such, it attested to man's humanity. Humanity expressed itself in the existence of human society. Society, embedded in the human nature (that is, in rationality), was therefore a necessary attribute of humanity; it was also a necessary instrument for achieving the ‘great ends of humanity’ at individual and collective levels alike.Footnote 59 Humanity, then, was also a vocation.
Liberty was one of the highest ends of society; it stemmed from the condition of humanity and fulfilled the vocation of humanity.Footnote 60 Lieber recognized some natural rights but these were neither predicated nor did they express a humanist perception of the inherent dignity of the individual or a theological interpretation of creation in god's image.Footnote 61 Rather, Lieber was concerned with civil liberty, a necessary, natural attribute of man as a member of a jural polity.Footnote 62 Civil liberty consisted of protection against interference with the rights of individuals in society.Footnote 63 The greatest danger to liberty was absolutism of any kind, ‘whether Monarchical or Democratic, intelligent and brilliant or coarse’.Footnote 64 Rampant individualism of rights, unencumbered by corresponding obligations, or unchecked majority rule were as dangerous as tyranny.Footnote 65 Man's societal nature was a source for individual and collective rights and obligations; not as a logical corollary, but as a moral-normative prescription.Footnote 66
Lieber's theory of liberty rejected the French model of protection of individual rights as devoid of a ‘system of institutions’. Hailing the organic growth of institutions in England, his notion of liberty was wedded to, and preconditioned on, institutional frameworks and regulation.Footnote 67 Thus, ‘no liberty is possible without institutional polity’; he identified self-government, a notion embodied in the modern nation-state, as the institutional polity of modern times.Footnote 68 The modern nation-state was the principal institution necessary to safeguard civil liberty and meet the demands of modern conditions. The state was inherent in man's humanity and ‘necessary to his nature’; Lieber therefore rejected the social contract and the notion of the state as a necessary evil.Footnote 69 Rather, the state was indispensable, through protecting liberty, to advance the vocation of humanity, individual and collective. That was the role of the state; it was instrumental to humanity:Footnote 70
The state is aboriginal with man; it is no voluntary association, no contrivance of art, or invention of suffering, no company of shareholders; no machine, no work of contract by individuals who lived previously, out of it; no necessary evil, no ill of humanity which will be cured in time and by civilisation; no accidental thing, no institution above and separate from society, no instrument for one or a few – the state is a form and faculty of mankind to lead the species toward perfection – it is the glory of man.Footnote 71
The role assigned to the state underpins Lieber's views on authority, law, obedience, and revolution. It equally controls his approach to suffering in war, for Lieber left little room for the individual in the ‘Leviathan he had conjured up [which] might absorb all … social relationships (and thus … all the media for the realization of individuality) under its “protecting” wings’.Footnote 72 In essence, he reconciled liberty and nationalism by instrumentalizing both the individual and the state to the pursuit of modern progressive civilization, of humanity-as-vocation. Neither the state nor the individual was supreme; both were subordinate to that humanity's vocation. The state
always remains a means, yet it is the most indispensable means to obtain the highest end, that man be truly man. … On the one hand, the individual stands incalculably higher than the state; for that he may be able to be all that he ought to be, the state exists. … On the other hand, the state stands incalculably above the individual, is worthy of every sacrifice, of life, and goods, of wife and children, for it is the society of societies, the sacred union by which the creator leads man to civilization, the bond, the pacifier, the humanizer, of men, the protector of all undertakings in which and through which the individual has received its character, and which is the staff and shield of society.Footnote 73
Nationalism and inter-nationalism
If reconciling liberty and nationalism imparts the vocational, progressive, and un-individual nature of Lieber's sense of humanity, the way that he squared off nationalism and inter-nationalism (the dash is crucial) and the role that he assigned to inter-national law underscore the primacy of order in his sense of humanity. He saw no tension between nationalism and inter-nationalism; on the contrary, he considered the existence of national states a necessary condition for inter-national order in which civilization can advance. Thus, one of the ‘main characteristics of the political development’ marking modern times was:
the decree that has gone forth that many leading nations flourish at one and the same time, plainly distinguished from one another, yet striving together, with one public opinion, under the protection of one law of nations, and in the bonds of one common moving civilization.Footnote 74
The very inter-national order – the ‘multiplicity of civilized nations [with] their distinct independence’ – was one of ‘the great safeguards of our civilization’. Its virtue was its ability to create – and preserve – the conditions necessary to meet the demands of the age, the quest for ‘the Spreading Progress of our Kind’. The modern inter-national order – the existence of many nation-states – was a guarantee against a total war that would encompass and consume European civilization entirely, or the threat of hegemony, an ‘enslaving Universal Monarchy’.Footnote 75 ‘Modern nations of our family’, members of ‘one common moving civilization’, were bonded by ‘their increasing resemblance and agreement’, which produce legal, cultural, scientific, and political unities.Footnote 76 Inter-nationalization was not a fixed condition but an ongoing, self-preserving process, whose end result was not the ‘obliteration of nationalities’ (these were requisite for a ‘moving civilization’), for, if that happened, ‘civilization would be seriously injured. Hegemonies of “ancient times” were short lived. Once declining, they never recovered … Modern nations by contrast are long-lived, and possess recuperative energy’.Footnote 77
Inter-national law and the vocation of humanity
For Lieber, the modern inter-national order was as expressive of man's humanity and his faculty of reason as were the nation-state and modern society. Humanity, as an observed condition, gave rise to humanity as a calling. The existence of the nation-state and of a modern inter-national society was innate in and expressive of human nature. National and inter-national societies were, on different scales, two manifestations of the same attribute, two applications of the same principle of self-government; both were geared towards the same vocation.Footnote 78 And if, within a state, it was the role of government to preserve order by supplying protection against undue interference with liberty, protection against interference in the inter-national society was the role of inter-national law.Footnote 79 Inter-national law was essentially equivalent to government: protecting and restraining nation-states, it was an empire overseeing their relations.Footnote 80 Rather than a product of sovereign states, law was the source of their sovereignty, their protection and restraints on their conduct. Rules of modern inter-national law, innate in human nature, drew directly from the fact of modern inter-national order and aimed at preserving it.Footnote 81 Expressing the condition of humanity, their role was to promote its vocation.Footnote 82
This progressive ideology is explicit in the Code. Lieber's humanity-as-vocation required ‘the existence, at one and the same time, of many nations and great governments related to one another in close intercourse’ (Article 29). This was a fundamental feature of a stable, regenerative order, which was necessary to preclude the emergence of short-lived hegemonies and total war. Such order guaranteed a healthy, constant competition, catalyzing human progress to counter the challenges of modern conditions. This ideology formed the basis for Lieber's approach to peace and war.
War and peace
Humanity, as both an observed condition and a vocation, pervades Lieber's theory of war and the law that he devised to regulate it. Though he preferred peace to war, Lieber rejected pacifism and did not consider war as necessarily evil; he recognized the suffering that it brings, but often expressed admiration for war's virtues.Footnote 83 In his theory, war was a force that could serve virtue. Though it caused suffering, war might have a moralizing, civilizing effect on individuals and nations.Footnote 84 War could bring nations ‘to their senses and makes them recover themselves’; if just, it often catalyzed progress.Footnote 85 By the same token, long peace could have corruptive, stifling effects.Footnote 86
Both war and peace had an inter-national function, and both were to be assessed in reference to that function. Lieber's imperative for modern times was not perpetual peace but the dynamic process of mankind's progress and the advance of civilization.Footnote 87 The value of peace and war depended on their effect on the stability of the modern inter-national order as a requisite for constant competition, their contribution to a dynamic interaction producing progress and fulfilling humanity's vocation. Peace was crucial to this order and its stability; yet, at times, peace might cause the inter-national society to wane, degenerate, or disintegrate; some wars might therefore preserve or regenerate the inter-national order. War – a ‘human contest’Footnote 88 – was a necessary component of a dynamic process of human advance.Footnote 89
As part of inter-national law, Lieber's law of war was aimed at neither states nor individuals, but at enabling and preserving the dynamic inter-national order as a prescription of human progress. For Lieber, war was neither cause nor symptom of an anarchical international society, but an instrument of order. It reinforced stability and produced ‘a new set of obligations between the belligerents’. War was not in itself immoral; its morality drew largely on its service to order.Footnote 90
War's service to order and the vocation of humanity explains both Lieber's recognition of a droit de guerre of states and the restraints that he imposed on that right.Footnote 91 He identified three types of restraints on war: the first was rooted in just war theory; the second, in the relation of war to peace; and the third, in the public character of modern war. All three flow from the instrumental nature of modern war, not its innate immorality, which he rejected. In Lieber's theory and law of war, it was the instrumental nature of war that generated restraints on its conduct. Such restraints were humanitarian, but they referenced progressive, vocational humanity and the order that it required.
Just war
For Lieber, war was neither the realist's fact of force nor the humanist's vestige of barbarity requiring charitable moderation through law, but rather a moral and legal procedure ‘waged with justice not less than by force’.Footnote 92 His version of just war tradition had the basic premise that, to be just, war must have a just cause and that it was necessary to pursue that cause:
A just war implies that we have a just cause, and that it is necessary: for war implies sufferance in some parties, and it is a principle of all human actions that, in order to be justified in inflicting sufferance of any kind, we must not only be justified, but the evil must be necessary.Footnote 93
A just cause was insufficient; circumstance must render it necessary to pursue it.Footnote 94 As is often the case with just war doctrines, neither Lieber's criteria nor his examples of just causes produce a sufficiently close, objectively workable category.Footnote 95 Yet he did not fall into the tradition's most obvious snare, elegantly avoiding the issue of objective/subjective assessment of justness: ‘there are wars where the right is on both sides’; in other words, ‘both sides in a war may be objectively right’.Footnote 96
Restraints in war had little to do with the justice or injustice of the cause per se. Justice or injustice of cause was not the source of obligations towards the enemy, nor did it mandate inhumane treatment. Article 67 of the Lieber Code states that:
The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant.
This statement on the equality of belligerents cannot, however, be construed as insulating the manner of fighting from war's causes. On the contrary, Lieber saw a direct nexus between the right to wage modern war and obligations concerning means and methods employed in its pursuit. For him, modern war was instrumental, ad bellum and in bello alike; its instrumental character was the basis for restraints on both recourse to war and the manner of fighting. As Article 30 provides,
[e]ver since the formation and coexistence of modern nations, and ever since wars have become great national wars, war has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations and restrictions on principles of justice, faith, and honor.Footnote 97
While the rules apply to all belligerents, for Lieber the causes and aims of the war were highly relevant to the determination of legality of conduct in bello. His law of war imposed limits on the manner of waging war by a belligerent as was necessary to the accomplishment of its war aims: ‘I must injure him as enemy, that is, so far as he is there to oppose me in obtaining the ends which I consider as the next object of the war’.Footnote 98 The justice or injustice of the cause was irrelevant, but the nature of the cause dictated the scope of what was permissible.
Modern war was instrumental: not ‘its own end, but the means to obtain great ends of state, or to consist in defense against wrong’.Footnote 99 For Lieber, those ‘great ends’ were a major source of restraint on the waging of war: ends limited permissible violence to what was necessary for victory. If war was instrumental, so was the right to wage war; in consequence, the Code permitted belligerents only such means, methods, and practices as were necessary for meeting their war aims, but proscribed those that were not (Article 68).Footnote 100 Much like today's distinction between jus ad bellum and jus in bello, the rules were the same for all belligerents; unlike current doctrine, the content and detailed application of the rules, per Lieber, varied between belligerents, depending on their respective war aims.
Lieber's notion of just war implies that human suffering may be necessary and justified by a just and necessary cause.Footnote 101 It also implies that constraints on the manner of fighting were not necessarily or directly concerned with the mitigation of human suffering. Moreover, the justness of a cause itself was not the source of obligations in war, even if the cause of war – war's instrumentality – was relevant to determining the legality of the manner of pursuing war and, presumably, to what was humane in war. This raises the question of the purpose of and basis for restraint in war. In both cases, the answer has to do with war's instrumental nature.
War and peace as instruments of order
The right to wage war, and the right to choose the means in war, were also constrained by war's instrumentality to the modern inter-national order. Since war could preserve and invigorate the dynamic inter-national society in its march of progress, it was neither antithetical to civilization nor a moral abnormality, but only an exception to the ‘normal state of civilized society’ – that is, peace.Footnote 102 Departures from peace, however, are temporary. To be moral and justifiable, to serve its inter-national public function, war had to be geared towards return to the normal order of things: ‘the ultimate object of the war … among civilised nations is always peace’,Footnote 103 so that ‘Peace of some sort must be the end of all war – a return to the normal state. They who would carry on war for its own sake are enemies to civilization and to mankind’.Footnote 104
Modern war, as the destruction it wrought and the suffering it caused, drew its very legitimacy from its service to that overarching goal: peace, not as its own end, but as an instrument of order, progress, and civilization. When Lieber stated that ‘peace is the end of war’, he did not merely describe the formal practice of terminating wars in a treaty of peace, but rather commented on war's legitimacy.Footnote 105 War's exceptional legitimacy drew on its instrumentality to order. Lieber therefore used ‘return to peace’ as a restrictive yardstick of war's legitimacy in bello. As an instrument of order, the conduct of war was constrained by the degree to which it facilitated (or jeopardized) the achievement of peace: thus, military necessity ‘in general … does not include any act of hostility which makes the return to peace unnecessarily difficult’ (Article 16).Footnote 106 Today, we draw law's legitimacy from its role in facilitating the resumption of peace;Footnote 107 for Lieber, return to peace was a yardstick of legality but at the same time legitimized war – and its more vigorous pursuit.
For, at the same time, the instrumentality of war to inter-national order legitimized and required the energetic pursuit of war. This notion, prevalent in Lieber's writing throughout his life, underscores in Article 29 (succinctly containing Lieber's theory on the nexus between the inter-national order), the instrumentality of war and peace, and in bello rules:
Modern times are distinguished from earlier ages by the existence, at one and the same time, of many nations and great governments related to one another in close intercourse. Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace. The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.
The nexus to order is distinct and unequivocal; short, intense wars are a surety against protracted suffering once war breaks out:
being an exceptional state of things, the shorter … [war] is the better; and the intenser it is carried on, the shorter it will be. The gigantic wars of modem times are less destructive than were the protracted former ones, or the unceasing feudal turbulence …Footnote 108
Moreover, they guarantee the scarcity of war. Lieber advised, on a point of morality: ‘First, settle whether the war be just; if so carry it out vigorously; nothing diminishes the number of wars so effectually.’Footnote 109
This prescription encapsulates Lieber's sense of humanity. If justified and required at all, greater violence is not only just but also meritorious as a humanitarian imperative: vigorously pursued wars are, in Article 29, ‘better … for humanity’.Footnote 110 Albeit exceptional, war is required for preserving the modern inter-national order; because it is exceptional, it must be limited to that which is necessary to its conclusion. When Lieber references humanity, he addresses a collective condition, or vocation, of humankind, not a standard measuring the position of individuals.Footnote 111 The humanitarian imperative that emerges from the instrumentality of war to order is war's finality.
The public character of modern war
Third, Lieber drew restraints on the instrumental conduct of modern war from its public character. This, too, drew heavily on the relationship between nationalism and inter-nationalism. The entirety of Lieber's work on war demonstrates a deliberate effort to limit the legal institution of war, ad bellum – and, consequently, war rights, in bello – to a class of participants. He explicitly rejected as illegitimate uncontrolled war over fief, creed, or throne; violence for private ends; and war controlled by religious or medieval class ethics.Footnote 112 Rather, through a pervading distinction between public and private war, he reconstructed war to fit modern conditions and the needs of the nation-state.Footnote 113
Thus, the Code addresses ‘the law and usages of public war between sovereign belligerents’ (Article 153); war is defined only as ‘public war’ – ‘a state of armed hostility between sovereign nations or governments’.Footnote 114 The public aspect of modern war served Lieber to impose further restraints on the waging and the manner of war, for it narrowed the class of just causes and legitimate war aims, and so, too, the scope of legitimate destruction. Permissible injury to the enemy flows from ‘that which serves the public good, and what is not allowed is that which serves private ends’.Footnote 115 The collective, public character of war restrains its conduct but also justifies suffering and destruction:
I have not the right to injure my enemy privately, that is, without reference to the general object of the war, or the general object of the battle. We do not injure in war, in order to injure, but to obtain the object of war. All cruelty, that is, unnecessary infliction of suffering, therefore, remains cruelty as among private individuals. All suffering inflicted upon persons who do not impede my way, for instance surgeons, or inoffensive persons, if it can possibly be avoided, is criminal; all turning the war to private ends … as, for instance, the satisfaction of lust; the unnecessary destruction of private property is criminal … for I do not do it as public enemy, because it is not serviceable to the general object of war, it is not use, but abuse of arms, which, nevertheless, I only carry in consequence of that public war.Footnote 116
Just causes are reasons of state; wars are ‘but the means to obtain great ends of state’ (Article 30); therefore, only public ends can justify war and give rise to war rights. This public instrumentality of war is crucial to deciphering the ‘public enemy’ status and treatment of non-combatants (or ‘noncombatants’, as Lieber wrote the term) in the Code; we shall return to it shortly.
Deriving restraints from the public character of modern wars underlines the revolutionary currents in the work of an ostensible conservative.Footnote 117 Rather than an inadvertent servant of the old European regime, Lieber here appears as a disciple of Edmund Burke and a voluntary draftsman of international order dedicated to consolidating, in the nation-state, a monopoly of external force and its attendant entitlements.Footnote 118 He wields restraint not as a shield of the individual but as a sword against past wars by private sovereigns, nobility, and men of the cloth;Footnote 119 it is his answer to these, but also to the totality of modern war, with its marshalling of all national resources and harnessing of science and industry. Lieber sought to restrain war; he did so by imposing on war a cast of instrumentality that was tailor-made to fit the modern nation-state. Instrumentality reined modern war into legal reason but, at the very same time, it espoused and justified the expanded aims of modern national wars.
Military necessity
The three types of restraints emanating from war's instrumentality combine to form Lieber's doctrine of military necessity. If the Code's main achievement has been to systematize the modern law of war, nowhere is this more patent than in that doctrine. It was Lieber's central method to constrain – that is, humanize – war.Footnote 120 This perception of military necessity as a limiting principle is, however, at odds with current literature that posits military necessity and humanity as opposing values, the balance of which yields norms that are, on the one hand, pragmatic and expedient and, on the other, humane. The sense of humanity emerging from Lieber's works serves as a reminder that military necessity is also permissive.
The Code's first section – the same that contains its concept of occupation – lays the general principle of military necessity (Articles 14–17). Here the language is both permissive (‘military necessity admits, allows’) and prohibitive (‘does not admit’). This choice of words is more than a structural device; it reflects an understanding of the essentially dual character of military necessity. It is permissive, as it ‘consists in the necessity of those measures which are indispensable for securing the ends of the war’ (Article 14). For Lieber, modern war itself is instrumental, not ‘its own end, but the means to obtain great ends of state’ (Article 30). Yet the ‘ultimate object of all modern war is a renewed state of peace’ (Article 29). Military necessity permits only that which is necessary for attaining war aims in order to secure the speedier return to peace. Hence the sanctification of the finality of war and the advocacy of sharp, brief, vigorous wars as a humanitarian imperative. Starvation, for example, is permitted ‘so that it leads to the speedier subjection of the enemy’ (Article 17); likewise, ‘it is lawful, though an extreme measure’ to force back non-combatants expelled from a ‘besieged place’ in order to increase demand for limited provisions and ‘hasten’ surrender (Article 18).
The same instrumental rationale makes military necessity also prohibitive, limiting the choice of means and methods in war. Lieber's premise is that in modern wars ‘the killing of the enemy is [not] the object’, but that the ‘destruction of the enemy [is a] means to obtain that object of the belligerent which lies beyond the war’. The conclusion that follows is that ‘Unnecessary or revengeful destruction of life is not lawful’ (Article 68). Hence the prohibition on cruelty, ‘the infliction of suffering for the sake of suffering or for revenge’ rather than for military advantage, or the prohibition on ‘wanton’ destruction or devastation:Footnote 121 recourse to such practices is not required to secure the aims of war, and does not qualify as militarily necessary.
The dual nature of necessity is essential to Lieber's sense of humanity. Lieber drew restraints on war from war's instrumentality – to just cause, and hence war aims; to war's finality and the restoration of inter-national order; and to the public character of war. The scope of actual restraint, however, was as wide or as narrow as the war aims. Lieber's just war theory, under which just causes are abundant, and both belligerents may be objectively just, leaves room for the widest war aims. All that was necessary to accomplish a belligerent's war aims and victory was permitted, in fact mandated: it was expedient, just, and lawful. Military necessity comprised all ‘measures which are indispensable for securing the ends of the war’ (Article 14, with an important proviso that I discuss below). If ‘the injury done in war beyond the necessity of war is at once illegitimate, barbarous, or cruel’,Footnote 122 then that which is necessary is, necessarily, humane.
The counter-argument is, of course, that military necessity is relevant only in the absence of specific prohibition.Footnote 123 This finds some support in the proviso in Article 14: ‘Military necessity … consists in the necessity of 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’. Yet the language, though apparently clear, does not really resolve the matter: are measures ‘which are indispensable for securing the ends of the war’ required to be also ‘lawful according to the modern law and usages of war’ or are they, ipso facto, ‘lawful, etc.’?Footnote 124 In fact, absolute prohibitions are scarce in the Code; even provisions whose text appears unqualified are subject to Lieber's circular hierarchy of values.Footnote 125 The counter-argument ignores the bases of Lieber's military necessity, namely the various aspects of war's instrumentality, and the sources of restraint in the Code and in Lieber's theory. Even if absolute prohibitions can be identified in the Code, and if lawfulness is cumulative to necessity, nothing in the Code suggests that this is grounded in humanity or human dignity in the sense used today.
When it came to war, and to the law of war, Lieber's sense of humanity was flexible and relative to various facets of war's instrumentality. It had no fixed boundaries and little autonomous meaning. It therefore had little existence independently of that which is necessary to the ends of war. Its content was not immutable; Lieber's sense of humanity in war was not a value opposed to military necessity, but rather a derivative of the belligerents' war aims – and subordinate to them. In that, Lieber's ‘humanity’ is quite dissimilar to the contemporary associations of the term. In the Code, humanity in the sense of the ‘dignity and worth of the human person‘Footnote 126 is neither a direct nor a significant source of restraint on the conduct of belligerents. Lieber's sense of humanity was rational in method, not sentimental in proclivity.Footnote 127 Fundamentally, his sense of humanity in war was instrumental to humankind's progressive vocation and the order – societal, national, and inter-national – necessary to attain it.
From humanity as a commentary on attributes of human nature, Lieber constructed a theory in which humanity was ultimately to serve as mankind's progressive, civilizational vocation. Though individuals stood at the foundation of this theoretical edifice, they also carried its full weight: Lieber's humanity-as-vocation left little room for any variety, however rudimentary, of individual humanity or entitlement under any doctrine of human dignity.Footnote 128 Lieber instrumentalized and subordinated the individual to humanity's vocation: order and the progress of civilization. What remains to be seen is how Lieber's sense of humanity informs his sense of occupation.
Humanity in occupation
Lieber was familiar with his predecessors' attempts to restrain the liberties of conquest. His successors, acknowledging their debt to his Code, would use his formulae – in the Hague Regulations and beyond – to give the modern law of occupation a more humane face.Footnote 129 But his sense of humanity in war, instrumental to the order of modern nation-states, translated to a concept of occupation that was itself subordinate to requirements of vocational order. Though different – in fact, diametrically opposed – notions of humanity now explain the law and concept of occupation, the Lieber Code had crucial impact on their formation, fundamental assumptions, and expression.
The Code's concept of occupation
Despite its curious terminology,Footnote 130 the Code's occupation provisions raise a strong sense of familiarity. Thus, martial law in the Code – ‘simply military authority exercised in accordance with the laws and usages of war’ (Article 4) – is ‘the immediate and direct effect and consequence’ of the presence of ‘a hostile army’ in territory (Article 1). The Code, much like today's law, recognizes that, since occupation stems from a hostile presence, it exists independently of proclamations or other formalities,Footnote 131 and corresponds to the temporal and spatial limitations of that presence.Footnote 132 Likewise, the Code's discussion of the legal effects of occupation appears akin to subsequent treatment. Under Articles 3 and 6 of the Code, the functions of the existing government cease, and the ‘military rule and force’ of the ‘occupying military authority’ substitutes ‘the domestic administration and government in the occupied place or territory’; ‘criminal and civil law’ is suspended, replaced by the occupant's legislative authority ‘as far as military necessity requires’ (Article 3).Footnote 133 Local law continues to ‘take its usual course’ (Article 6) at the discretion of the occupant. As with later instruments on the law of occupation, the Code recognizes the material needs of the occupying army, ‘its safety, and the safety of its operations’ (Article 10).Footnote 134 The dissimilarities between the Code and its progeny, however, are more instructive.
The occupant's duty to restore and maintain public order and public life
Striking in its absence from the Code is the fundamental duty of the occupant to restore and maintain public order and public life in occupied territory. Having rendered existing state institutions ‘incapable of publicly exercising its authority’ in the occupied area, the Occupying Power is today required to assume the role of government as provider of order and security.Footnote 135 The occupant's duty to administer the territory positively is now perceived as a humanitarian justification of its authority:Footnote 136 it is central to the contemporary sense of humanity in occupation.
The Code contains all elements used to construct this duty in the 1874 Brussels Declaration, itself the basis of the Hague Regulations: the authority of the occupant stemming from the fact of its presence and control; the curtailing of public power; and the substitution of existing law and authority by military law and authority.Footnote 137 Yet the Brussels text imports a sense of purpose connecting the occupant's entitlement to its obligation: it is ‘[w]ith this object’ – namely, to restore and ensure public order, and so forth – that the occupant has authority. The Hague Regulations described ‘replacement’ and ‘substitution’ of public power as a transition; the Brussels text an intermediary, semi-continuous transition;Footnote 138 in the Code, no such transition is envisaged. Under Article 3, the occupant's authority does not derive from that of the ‘legitimate power’. Its existence requires no justification:Footnote 139 it is original, unrestrained by limits on the authority of the ousted government.Footnote 140
The occupant's authority, per Lieber, was not encumbered by any sense of purpose directed at the inhabitants' entitlement to public order. Indeed, the notion of a general public duty owed by the occupant to the inhabitants is entirely missing from the Code.Footnote 141 When Lieber observed that ‘Martial Law affects chiefly the police and collection of public revenue and taxes’ (Article 10), he referenced only the occupant's right, not its public duty, to police (that is, maintain public order in) occupied territory: it ‘refers mainly to the support and efficiency of the army, its safety, and the safety of its operations’ (Article 10) – not to the role of the occupant as surrogate, temporary sovereign charged with safeguarding the civil liberty of the inhabitants by reason of having replaced the sovereign.Footnote 142
Whereas, in the Code, the existence of the occupant's original authority required no justification, its exercise did require grounding in military necessity: martial law ‘consists in the suspension’ of law and domestic administration, and its substitution by military rule, and the dictation of ‘general laws’ ‘as far as military necessity requires’ (Article 3). Given Lieber's concept of military necessity, its invocation in relation to the exercise of the occupant's authority implies that while not constrained by the authority of the former government the exercise of that authority is limited – and legitimized – by the occupant's war aims, to which occupation itself is instrumental.Footnote 143 The reference to military necessity also explains the express mention of ‘humanity’ as guiding the occupant's exercise of authority. Humanity in Article 4 does not import an independent entitlement to human dignity on the part of individuals. Rather, humanity entirely depends on that which is necessary to accomplish war aims. Given the sources of Lieber's concept of military necessity and his sense of humanity in war, it is hard to see how can Article 4 be interpreted any differently.Footnote 144 Humanity in occupation, as in war, was contingent on the necessary.
The absence of the duty to administer the territory signifies that Lieber did not prioritize order within the occupied territory as service to the human dignity of the occupied. His sense of humanity in occupation was rooted in the instrumentality of occupation to the occupant's war aims. War aims serve, for the occupant, as a source of both authority and restraint. Order is a humanitarian value in occupation, but under a different sense of humanity, illustrated by the Code's treatment of the occupied.
Non-combatants: status, restraints on treatment, and protection
An equally instructive dissimilarity to subsequent law is the absence from the Code of a standard of protection akin to that of ‘humane treatment’ of civilians in occupied territories in Article 46 of the 1907 Hague Regulations and, more elaborately, Article 27 of the Fourth Geneva Convention.Footnote 145 Notwithstanding the allusion to ‘humanity’ in Article 4, it is hard to find in the Code a civilian status predicated on a human dignity ideology. Rather, the treatment of non-combatants is instrumental, not a goal on its own. Restraints on the occupant are not predicated on the status of non-combatants, nor do they present a standard of protection ideologically comparable to what the law offers today.
Status: the non-combatant as enemy
The Code contained ‘little that dealt explicitly with a belligerent's obligations towards civilians’.Footnote 146 It spoke of ‘non-combatants’, ‘persons’, ‘citizens’, and ‘inhabitants’; more significantly, it lacked non-combatant status, at least as a source of treatment.Footnote 147 This flows directly from Lieber's theories of war and politics and the role to which they reduced individuals in the quest for vocational humanity. Since modern war draws its legitimacy from its public character, it is an affair of the collective. As such, the civilian of a belligerent is never an uninvolved bystander. Rather, he is the enemy. ‘Public war’ is a contest between states or nations ‘whose constituents bear, enjoy, suffer, advance and retrograde together, in peace and in war’ (Article 20). Article 21 spells out the consequences: ‘The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.’
The individual non-combatant was an enemy not so much by virtue of formal nationality or allegiance as by being a member (‘constituent’) of the whole. For Lieber, the treatment of non-combatants was predicated on a sense of collective responsibility. As parts of the whole, non-combatants contributed to, and must also suffer with, the whole. War was not hardship visited upon hapless civilians who ‘find themselves … in the hands’ of the occupant (Fourth Geneva Convention, Article 4). As members of collective society, innate in and expressive of their humanity, and so possessed of concomitant rights and obligations, they enjoyed the ‘fruit’ of war and paid its price.Footnote 148 ‘Individual citizens’ of the enemy, therefore, ‘cannot be made to suffer in person and property, as individuals. As such they are not the enemies in truth’;Footnote 149 but as members of the collective, they are made to suffer so, for they are the enemy.Footnote 150
The collective responsibility of non-combatants in public war provides the theoretical basis, moral justification, and a legal measure for their suffering. Lieber's base legal standard for assessing the treatment of non-combatants justifies that the ‘hardships of the war’ should fall on them by reason of the political organization inherent in their humanity.Footnote 151 That standard was permissive, but also a source of restraint.Footnote 152 The harshness of this base standard may be mitigated: elsewhere, Lieber articulated the collective responsibility of non-combatants in functional terms, assessing whether they, notionally or actually, contributed to their nation's war effort or impeded the enemy's war aims. The functionality test opens, as we shall see shortly, the possibility of finer distinction and some leniency in treatment.Footnote 153 Nonetheless, constraints on war practices affording protection to non-combatants are couched in instrumental terms.
As far as status is concerned, Lieber assesses non-combatants not as individuals, but by their instrumentality. Non-combatants are not the objects of his humanity; subordinated to war aims, they are its subjects.Footnote 154 Their suffering – the ‘moral and physical calamities of conquest’Footnote 155 – if only ‘serviceable to the general object of war’, is necessary and justified; as such, it is humane.Footnote 156 Humanity is not individual entitlement inherent in a non-combatant's status; rather, it is a source of collective liability.
Treatment: protection of non-combatants
Nor does the Code's concept of protection correspond to contemporary views of entitlement rooted in human dignity. Its treatment of non-combatants was predicated mainly on their classification as enemy. True, the Code acknowledges the emergence of a practice by which unarmed individuals are spared. Immediately after classifying even non-combatants as enemies, it states:
22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.
23. Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war.Footnote 157
These and other provisions may offer non-combatants in occupied territory a measure of protection. Yet whether historical observation or statement of law (with Lieber's method, it is hard to tell), they do not entail status-based protection of non-combatants as an imperative transcending their enemy character. Nor do they posit protection of individual dignity autonomous from what is necessary to meet the ends of war.Footnote 158 The emergent practice of protection that Lieber records is subordinate to military necessity and, through it, to war aims. Thus, the ‘unarmed citizen is to be spared in person, property, and honor’, yet only ‘as much as the exigencies of war will admit’ (Article 22).Footnote 159 In these provisions, unlike their equivalent in subsequent codifications, protection does not represent a specific compromise between the rights of the occupant and those of the occupied population; rather, it is entirely contingent on what is necessary to accomplish the aims of the war.Footnote 160
Protection of non-combatants' person or property is not only subordinate; it also appears quite illusory.Footnote 161 We saw how subjection of the enemy allows subjecting its population, in Articles 17 and 18, to starvation and siege tactics. Similarly, commanders may give notification prior to bombardment to allow the evacuation of non-combatants ‘especially the women and children’, but it is perfectly legal and justifiable not to do so: ‘Surprise may be a necessity’ (Article 19); if private citizens are ‘no longer … carried off to distant parts (Article 23), public officers declining to take an ‘oath of temporary allegiance or an oath of fidelity’ may still be expelled (Article 26); for ‘civilized nations’, retaliation – presumably, including against non-combatants – is the ‘sternest feature of war’; yet it is permitted in order to preclude ‘repetition of barbarous outrage’ (Article 27). In the final analysis, the inoffensive individual is hostage to ‘the overruling demands of a vigorous war’ (Article 23).
Such severities demonstrate the subordination of non-combatant protection to the vast requirements of military necessity; they do not permit reading into the Code any system of mitigation of harm to non-combatants based on human dignity. Lieber's concept of non-combatant protection is not predicated on their status, but rather on their instrumentality.Footnote 162 This instrumentality is manifest in the adjectives and modifiers that the Code uses to describe non-combatants and in the consequences that it prescribes. Being ‘unarmed’ (Article 22) or ‘inoffensive’ (Article 25) is not a guarantee of protection. Thus, notwithstanding the Article 25 suggestion that ‘protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions’, the Code systematically upholds and expands these exceptions.
Yet the instrumentality of non-combatants and their treatment to war aims does not sufficiently explain the Code's limited scope of protection. If their protection depended only on the extent of their contribution to the war effort, or the degree to which they impeded the occupant's war aims, a simple actual contribution test would be apt; protection of non-combatants based on this test, though subordinate to necessity and narrow in scope, could tangibly mitigate the suffering of non-combatants in occupied territory. Such a test would also, to some extent, mitigate the harshness of collective responsibility of non-combatants embedded in their enemy character: under an actual contribution test, non-combatants could elect to remain unarmed and inoffensive and so gain the protection of the occupant. Lieber, however, did not give non-combatants this choice; he implicated them as enemies by using a broader test that included potential contribution. The citizenry furnishes the ‘means of carrying on the war’; and so, they are the ‘unarmed enemy … supplying the means for the war, directly or indirectly’.Footnote 163 The conduct of non-combatants, however harmless, is insufficient to assure them protection; hence the relations that the Code foresees between the Occupying Power and the population under its control.
Submission and the instrumentality of occupation
In a handwritten note discussing the Women Order, Lieber observed that it was ‘obvious that the conquered must conduct themselves decently … toward the victor’.Footnote 164 This vignette illustrates the role that the Code assigns to non-combatants in occupied territories. In order to gain its protection, they must manifest submission to the occupant.Footnote 165 The submission requirement is mentioned in Section X on ‘a war of rebellion’; yet it borrows explicitly from conditions in a ‘regular war’. Under Article 155 of the Code:
All enemies in regular war are divided into two general classes – that is to say, into combatants and noncombatants, or unarmed citizens of the hostile government. The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize with the rebellion without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy without being bodily forced thereto.
Article 156 lists the considerable consequences of lack of submission: ‘common justice’ and ‘plain expediency’ require the protection of the ‘manifestly loyal citizens … against the hardships of the war as much as the common misfortune of all war admits’. But ‘stricter police’ applies ‘on the disloyal citizens’ on whom ‘the burden of the war’ is thrown; commanders may ‘expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal’ to the government.
Protection of person and property is not an entitlement based on non-combatant status or individual humanity. Still, submission is required of the populace. The same requirement applies in occupied territories: ‘protection’ pertains only to the ‘inoffensive individual’, the ‘inoffensive citizen’; by contrast, the property of the offensive citizen may be forfeited (Article 38).Footnote 166 Lieber emphasized the significance of submission immediately after the provisions setting the enemy character of non-combatants and their protection; in Article 26:
Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance or an oath of fidelity to their own victorious government or rulers, and they may expel everyone who declines to do so. But whether they do so or not, the people and their civil officers owe strict obedience to them as long as they hold sway over the district or country, at the peril of their lives.Footnote 167
Submission of the population, then, may result in protection. Lack of submission may result in loss of life and property, or deportation. Yet submission, whether rendered voluntarily or upon demand, is insufficient to guarantee protection. The occupant is not bound even then to accord ‘the protection which, by the modern law of war, the victor extends to the persons and property of the conquered’.Footnote 168 Protection is, essentially, a matter of utility or discretion. There is no balance between the occupant's interests and those of the populace. There is no reciprocal relationship: the occupant's position, and authority, is unilateral. Lieber assigns non-combatants individually, and the occupied population collectively, no independent value, and recognizes in them no interest.
Occupation according to Lieber: instrumentality to imperatives of order
The Occupying Power's duty to administer the territory, and a status-based concept of protection predicated on human dignity, represent the two conceptual bases for humanitarian restraints in subsequent developments of the law of occupation. In the Hague Regulations, the duty temporarily to administer the territory expresses the role of the occupant as a provider of surrogate order, and serves as a humanitarian justification of its authority. The Fourth Geneva Convention retains this conceptual base, but emphasizes protection based on human dignity and elaborates restraints on treatment of civilians. Their absence from the Lieber Code is not coincidental. The Code's concept of occupation does not represent a stage antecedent to these conceptual bases of humanity in occupation. Rather, in the Code, Lieber reacted to the emergence of these conceptual bases – human dignity and transient, surrogate order – for restraining the liberties of conquest.
In identifying the whole citizenry of the belligerents as enemies, Lieber directly rejected Rousseau's doctrine, which became a theoretical keystone of the sense of humanity in occupation under present-day law. In The Social Contract, Rousseau argued:
War is then a relation, not between man and man, but between State and State, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers; not as members of their country, but as its defenders. Finally, each State can have for enemies only other States, and not men; for between things disparate in nature there can be no real relation.Footnote 169
Rousseau and Lieber alike harnessed reason to find in the public nature of modern war a vehicle of moderation. Both used the necessity device to restrain war among civilized nations. Yet, while Rousseau discerned in ‘the practice of civilized people’ the principle that once enemies ‘lay [their arms] down and surrender, they cease to be enemies or instruments of the enemy and become once more merely men, whose life no one has right to take’,Footnote 170 Lieber's non-combatant, even if unarmed, even if inoffensive, forever retains his or her enemy character and is ‘made to suffer’ on account of the place that he or she occupies in the political organization of the inter-national order, itself an expression of his or her humanity. For Lieber, there could be no autonomous, individual ‘civilian’ status as a basis of protection.
At the same time, the Code was a reaction to the emergence of a category of occupation as a transient phase restricting other liberties of the conqueror. Lieber was familiar with Rousseau's repudiation of the legality of acquisition by conquest, Vattel's attempt to contain the liberties of the conqueror to the public sphere, and Heffter's distinction between conquest and ‘mere’ occupation, during which the occupant did not acquire sovereignty.Footnote 171 He was equally acquainted with French Revolutionary practices leaving the decision on the disposition of the territory to liberated populations.Footnote 172 His successors combined some or all of these trends to restrain the liberty of the conqueror by imposing a duty to provide temporary and surrogate order, however harsh, as a humanitarian commodity. In so doing, they underlined the incidence of occupation to the war aims of the occupant.Footnote 173 Lieber, however, was predominantly concerned with order of another sort altogether, external to conditions in the occupied territory and predicated on an altogether different sense of humanity. For him, occupation was not an incident of war any more than conquest, or the fate of individuals, were. Rather, it was instrumental to the belligerent's war aims.
The Code uses occupation and conquest almost interchangeably.Footnote 174 While it may appear to accept a distinction between these categories, careful reading reveals that its provisions do not sustain such a distinction in substance.Footnote 175 Lieber described a temporary concept of occupation, but its provisional nature was not preparatory to the possible reversion of the territory to the original sovereign. Rather, it was preparatory to making conquest complete if the victor but chose to follow that path: Lieber recognized a right of conquest, unlimited.Footnote 176 Thus, even if commanders should leave to the treaty of peace the final settlement of some matters,Footnote 177 all the ‘victorious government’ has to do to in pre-emption is to proclaim ‘that it is resolved to keep the country … permanently as its own’ (Article 33). Lieber therefore sought to reinstate, not limit, the right of conquest.Footnote 178
Having learned of the Anglo-French declaration of war on Russia in April 1854, Lieber was riled by the evident general good feeling
for Louis Napoleon in England. It is disgraceful to England … It is so unEnglish to repeat and retrumpet a word of that crowned scamp, and call his Speech ‘The age of conquest is past,’ a noble dictum, and all that. Fudge! The age of conquest is not past, as we shall presently see; and whether he says so or not is not worth the snap of a finger.Footnote 179
Just how reactionary were his views on conquest is evident in his 1871 campaign to refute the fashionable claim that Prussian annexation of Alsace-Lorraine required popular consent. Lieber dismissed plebiscites as a ‘recent Bonaparte innovation’, non-binding in law, invariably rigged by those in control, involving no true democratic process, and unsuitable to people wanting democratic culture.Footnote 180 Rather, he argued, Prussian annexation would serve European peace and stability(!).Footnote 181 He urged his collaborator Bluntschli – Swiss by birth, Prussian by choice – to ‘be firm, keep Alsace and Lorraine’.Footnote 182 Lieber found no more use for protection of collective rights – self-determination in this case, cultural property in Article 36 – than he did for individual entitlement to human dignity.
For Lieber, the transience of occupation did not imply any limitation on the occupant's authority, either in favour of the ousted government (as under the Hague Regulations) or in favour of the inhabitants (as in the Fourth Geneva Convention). Such notions were irreconcilable with the occupant's original authority. Rather, the transience of occupation confirmed its original character. Lieber's concept of occupation embodied a rejection of emerging theories that identified a quasi-contractual relationship between the occupant and the inhabitants, exchanging temporary obedience for protection.Footnote 183 Even if lack of submission justified the harshest measures, submission of the populace did not in any way bind the occupant's hands: protection was discretionary. After all, commanders could make public servants in the occupied territory take either ‘the oath of temporary allegiance’ or ‘an oath of fidelity to their own victorious government or rulers’ (Article 26). Lieber would have wholeheartedly endorsed Oppenheim's 1917 dictum: ‘a just and humane, albeit stern and not indulgent, rule is apt to reconcile the population to their inevitable fate and make them submit to it, although they may chafe under its yoke’.Footnote 184 ‘Fate’, here, meant a new master. In the Code, there could be no duty towards the populace limiting the occupant's authority in any way: that authority was not incidental to temporary possession of the territory, but rather instrumental to its conquest. A ‘conquering or occupying power’ was ‘the victorious government’ (Articles 9 and 26).
For Lieber, restraints on the occupant and its authority drew on, and were designed to serve, the same purpose as any other restraint on belligerents. His sense of occupation and conquest was embedded in his sense of humanity, in its service to vocational order. The Code therefore prioritized the finality of war in occupied territory. Within the territory, the occupant's temporary authority was preparatory to the new order that the conqueror would impose once it had ‘resolved to keep the country … as its own’ (Article 33). It was not a means of instating a surrogate, provisional order. Despite his sympathy to national liberation, Lieber was suspicious of resistance ‘after having been conquered’.Footnote 185 The harsh treatment that the Code prescribes for the spy or war rebel in occupied territory is rooted in the ‘peculiarly dangerous character’ of the activities of ‘this renewer of war within an occupied territory’.Footnote 186 The authority of the occupant, unconstrained, serves the reinstatement of peace, stability, and a permanent order within the territory: conquest brings the war to its conclusion.Footnote 187 The conqueror's authority serves humanitarian imperatives – in Lieber's sense of humanity.Footnote 188
Outside the territory, Lieber's concepts of occupation and conquest were sine qua non to inter-national order and the constant ‘human contest’ that it generates to catalyze human progress under modern conditions (Article 29). If war catalyzes a healthy competition between modern nations, conquest – through which the victor's will, territorial or otherwise, is imposed on the vanquishedFootnote 189 – is the instrument that harnesses war to order and progress. Without the right of conquest, the occupant cannot accomplish its war aims, and war cannot regenerate the inter-national order. Recognition of the right of conquest, and consequently, the broad authority of the occupant, are essential to the progress of human civilization and the vocation of humanity. Here lies the justification for both the unfettered liberty of the conqueror and civilian suffering. Neither is incidental; both are instrumental to victory through occupation. Once victory has been decided, and the conqueror allowed to accomplish its aims, peace can be reinstated and order restored.Footnote 190 For the vocation of humanity, conquest was an imperative of progressive humanity, both logically and as a matter of historical necessity.Footnote 191
Conclusion
Lieber's sense of humanity, embedded in his political theory, did not concern individuals; rather, it was instrumental to a progressive, civilizational vision of inter-national order that could meet humanity's vocation. Neither accounts that mark the Code's humanity nor those identifying therein a rudimentary version of humanity in war can capture Lieber's unique sense of humanity or, indeed, the role that it played in his law of occupation. His sense of humanity in occupation was not a precursor of contemporary notions of human dignity restricting the authority of the occupant; rather, it was a reaction inimical to ideological trends that would later generate them. Nonetheless, it remains embedded, hidden but potent, in the contemporary law of occupation, providing an enduring but questionable humanitarian justification for the occupant's authority.
The relevance of Lieber's different sense of humanity is not limited to historical anecdote. Historicizing the Code as an antecedent to or affirmation of today's human dignity conceals its essential difference; with no understanding of this difference, our ability to appraise today's law critically is impoverished. International humanitarian law, the law of occupation included, has certainly changed significantly over the last century and a half. But it is disconcerting to realize that a highly similar language depicting an essentially identical concept of occupation, then and now, is capable of supporting such ideologically divergent approaches. The transience of occupation lends itself with equal facility to both authoritarian, conquest-based order and the human dignity creed. Both offer ample justification for the occupant's authority.
This compels critical reflection: one wonders, for example, whether the current law of occupation, notwithstanding its association with the human dignity creed, likewise serves political or ideological imperatives of order. So does the instrumentality of occupation: doctrine today asserts, as in the Preamble to the 1977 First Additional Protocol, that the law applies without regard to ‘the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict’.Footnote 192 Lieber underscored the instrumentality of occupation to the occupant's war aims; his law of occupation meant to render them service. Does occupation remain instrumental today, or is it an incident of war? What goals, other than humanitarian, does it render service to? Whatever the answers to these questions, reducing the complex history of international humanitarian law to celebration or derision of the humanity of the past is not likely to reveal them.
