The new AQ magazine: miracles from Khorasan

[ by Charles Cameron -- there's a similar report from Oliver Cromwell's New Model Army, fwiw ] . I have commented before on the use of miracle stories by Abdullah Azzam as quoted in Inspire magazine, and an African equivalent found in Gaidi Mtaani, the Shabaab magazine, to engage the devotion and loyalty of pious […] Read more »

Posts from my Coursera classes 2 — angles on the Taliban

[ by Charles Cameron -- a follow-up post, includes the "brother against brother" issue & Afghan Taliban  ] . ** Following up on my previous post in this series, I’ll begin with some comments specific to the Taliban that address the issue of dehumanization I raised there… and conclude with some comments on “brother against [...] Read more »

The Day After Assad: What to Expect Based on Events in Post-Saddam Iraq

By: Robert Tollast and Nathaniel Rosenblatt Regardless of whether Britain and France arm the rebels, Syria faces more challenges than Assad’s rule. An interview with Nathaniel Rosenblatt from Caerus Ascociates by Robert Tollast. &... Read more »

Old Hundred and the American Way of Wartime Law

Thanks to a coincidence of film release debates, Lincoln and Django Unchained have prompted no small outpouring of commentary on the relationship between law, race, and violence private and public both. Lest anyone fear I’m about to hijack this blog for pop culture commentary, I bring these films up because the problem of slavery, and its role in the military contest for the fate of the Union, played an integral role in the development of modern laws of war. There can be no doubt that emancipation in America required horrific carnage, and for precisely this reason the U.S. went to great lengths to find a framework to restrain it without compromising its obligation to prosecute and win an eminently just war.

John Fabian Witt’s Lincoln’s Code provides a compelling account of the evolution of the laws of war in America, not simply within the Civil War but from the Revolution through the occupation of the Philippines. Central to its story though, as the title implies, is the critical role of General Orders No. 100 not simply within the context of American history and warfare, but international humanitarian law worldwide.

Franz Lieber, who wrote “Old Hundred,” was perhaps the exact opposite of the prevailing stereotype of an international lawyer as one might expect. He was a Prussian and a soldier, who’d been shot through the neck at Namur and yet still felt drawn towards the “indelible horrors” of war, which provided the “rich dew” of historical progress. It was precisely because of this inherent moral component to war that Lieber saw fit to revise and crystallize the ethics of warfare for an age of mass combat – a desire almost certainly enhanced by Lieber’s several sons who fought on both sides of the Civil War.

Lieber, interestingly, was likely America’s first Clausewitzian of any major influence. He’d been familiar with his fellow Prussian’s work perhaps before most Germans. In Lieber’s Manual of Political Ethics, Lieber explains war’s object is to “compel him to peace at my will.” With the aims of a war providing justification to these means, conceptions of military law underwent a radical shift from Enlightenment standards morally indifferent to the aims of combatants. Lieber, as Clausewitz implied, saw these 18th century standards as customary artifacts from a bygone era, but rather than dismissing laws of war as a concept, he sought to recast them in order to simultaneously advance the Union’s war aims while ensuring war’s hardness retained some justice.

The elevation of justice, however, was not identical with humanitarianism. No. 100 forbade torture, poison, assassinations, cruelty towards prisoners and any other sort of violence beyond military necessity. It also permitted the execution of illegal combatants, reprisal killings for hostile violations, and the expropriation or destruction of hostile property under a wide range of circumstances.

In the context of emancipation, the codification of new laws of war mattered a great deal. Jefferson and other founders sympathetic slavery endeavored to redefine the laws of war, as they did a great many other things, to prevent the use of emancipation as a weapon against the United States. For most of young America’s history, it gravely feared British or other foreign incitement of slave revolts, and consequently ensured the Enlightenment humanitarian law protected slaves like any other civilian property. Even among critics of slavery, the classically-educated hoped America would avoid the servile wars past empires faced.

Lincoln, even as he became convinced of the military and moral necessity of emancipation by the bayonet, still hoped to avoid such insurrections while protecting the legitimacy of uniformed black combatants in the Union ranks. Hence the strong penalties on fighting outside a military hierarchy – it would deter not simply Confederate partisans but avoid extending sanction to rebelling slaves (it’s also notable that many former pacifists vocally embraced using slave revolts against the South).

The modern iteration of the laws of war, then, grew in part out of a desire to undo a codified injustice at odds with the new contemporary political reality. What had, in the past, appeared as a humanitarian protection, was extended in order to provide safety for a gross injustice that permitted brutal killings of what should have been legitimate combatants. The Lieber Code provided recourse but it defined them within the limits of the law.

There is no practice so odious as American slavery now receiving protection under the cloak of humanitarianism. But a great deal of behavior morally repugnant in the 19th century – the use of perfidy to protect partisans and guerrillas and assassination – now exists as a new, frightening reality for proponents of international humanitarian law’s value. In the Civil War, defining the laws of war was synonymous with enhancing the ability of the combatants to prosecute just war aims, even as it hardened the prohibitions on unjustifiable acts.

Indeed, one of the great lessons of the Lieber Code is that a country can use the laws of war in a Clausewitzian fashion to better relate violence to policy and enhance the prosecution of the war effort. Indeed, not only can they do so with military success, but in a manner that actually accepts and even elevates a country’s international legitimacy, as the Lieber Code did when the country which razed Atlanta found its orders codified in international humanitarian law. While there is much more to it than this quasi-review offers, Lincoln’s Code is effective not simply as history but as a sobering reminder for strategic theorists to take seriously the laws of war, and to reflect on the opportunities today for reshaping them in a manner conducive to victory in a just war.

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