Glenn’s 1914 Rules of Land Warfare marked a symbolic victory for a law that has often counted its successes in symbols. But symbols matter, and they matter because they shape the world in ways big and small. The laws of war have rarely if ever functioned like a beat cop or a stop sign. Rarely is there an impartial and stern judge standing at the ready to enforce them. Yet the laws of war shaped the way men talked about war. The entire Philippine controversy had played out in a moral vocabulary made up of terms from the laws of war. It was a venerable language, to be sure. It was one that spoke with tacit approval of terrifying acts of violence even as it denounced horrible cruelties. And it was a language that Abraham Lincoln, without quite knowing he was doing so, had transformed. Only a few years removed from the exclusion of non-European peoples from the law’s protections, Secretary of War Root and President Roosevelt felt compelled in 1902 to initiate trials of the American officers accused of violating its terms. A controversy rooted in the laws of war had forced statesmen to spend valuable political capital. A decade later, Edwin Glenn—the man who had conducted a campaign of torture and expressed disdain for the law’s core rules—would find himself speaking in the law’s terms and extending its moral language to armed conflicts in the twentieth century and into the twenty-first.
The moral mandate of Lincoln’s Civil War had crafted a common vocabulary, a way of talking about war’s grave moral stakes that could be shared by war’s fiercest defenders and its most uncompromising humanitarian critics alike. It was a language about the courage to act in a dangerous world and about the moral modesty that our weaknesses and frailties inevitably require. It was a language balanced, as Lincoln and Lieber had been, on a knife’s edge between humility and justice.
Epilogue
EVERY GENERATION HAS its law of war crisis. Some have more than one. The founding fathers confronted conflicts with Indians who fought by different rules; they battled a British Empire that viewed them as traitors instead of legitimate soldiers; and they grappled with the special dangers of a slaveowners’ republic in wartime. The first years of the early republic gave the founders little respite from such debates. George Washington spent much of his second term in office trying to secure a precarious position of neutrality in the wars of the French Revolution.
The stakes involved and the novelty of the questions at issue ensure that every new controversy in the law of armed conflict is fiercely contested. For two decades after the founding, the U.S. Supreme Court and its chief justice, John Marshall, managed an acrimonious diplomatic battle over the rights of neutral states in wartime. More than once the dispute spilled over into actual hostilities. In 1819, congressmen spent an entire month angrily debating the lawfulness of Andrew Jackson’s decision to execute two British subjects captured among the Indians in Spanish Florida. Twenty years later, efforts by New Yorkers to prosecute British soldiers on the Canadian border generated such tensions that war with Britain nearly broke out again. The same decade saw American military officers invent a set of controversial military commissions even as a sharp public debate broke out over whether the laws of war were anything more than a legitimating device for the world’s strongest states. A few years later, the first modern multilateral treaty on the laws of war generated an angry backlash by statesmen who (with considerable justification) saw the Declaration of Paris’s prohibition on privateering as a thinly veiled effort to disadvantage the United States.
In the Civil War, agonizing questions about the laws of war occupied Lincoln’s cabinet and his top military advisers from April 1861 onward. From the blockade controversy to the question of the southern privateers, from the irregular combatants who popped up across the Upper South and in border states like Missouri to slaves arriving at Union lines by the hundreds, the first year of the war posed an unending stream of problems for Lincoln and Seward and for commanders in the field. New difficulties arose throughout the war, and for months and even years after hostilities came to a close. In the decades that followed, the treatment of Indians, the atrocity-filled counterinsurgency in the Philippines, and the hammering out of a new generation of multilateral treaties in Europe all became central matters of concern for policymakers and soldiers, capturing widespread attention from the American public.
None of these episodes was more distinctive to the American experience of the laws of war than the epochal transformation of Emancipation. People around the world have experienced the moral tug-of-war between the pursuit of just ends and the adoption of humane means, for tensions between means and ends are endemic in human life and especially acute in wartime. That Americans have experienced such tensions hardly makes U.S. history exceptional. What was special about the American story, however, and what put Lincoln at its center, was the convulsive role of slavery.
For the first eighty-five years of the republic, slavery helped shape a distinctive approach to the law of war in a slave society that insisted it was also a civilized nation. The end of slavery was the quintessential event for the laws of war in American history. Emancipation seemed at the time to pose grave humanitarian risks—risks of a race war resembling the horrors of Haiti in the 1790s. And by the standards of the U.S. view of international law at the time, it was at best unclear whether the laws of war permitted it. Many thought the laws of civilized war flatly prohibited the freeing and arming of enemy slaves. Lincoln eventually moved ahead anyway. He did so rightly convinced of his cause’s superior claims of justice. And in so doing he invoked a standard of military necessity that was at odds with the humanitarian limits of the age. But Lincoln did not dismiss the laws of war. To the contrary. He infused the proclamations of September 22, 1862, and January 1, 1863, with their spirit. The laws of war helped give shape to Emancipation’s meaning, animating its ambitions and setting its limits.
What Lincoln came to understand in the summer and fall of 1862 was that the law of war asks the seemingly impossible. It presses upon us the obligations of human uncertainty at precisely our moment of maximum moral resolve. It was only because he was certain that the preservation of the Union was a worthy end that Lincoln was willing to go to war in the first place. It was only because he was certain that slavery was wrong that he was unwilling to compromise on it in the months between his election and his inauguration. Who but a madman would willingly cause 750,000 deaths without confidence in his purpose? But because Lincoln knew that white southerners prayed to the same God he did, because he knew they felt the same conviction in the righteousness of their cause that he did in his, he acted with an acute sense of his own fallibility. These were the core premises of the Enlightenment laws of war, and they were the ideas Lincoln worked through as he decided on Emancipation. In managing the fallout from Emancipation, his administration called forth a new blueprint for the international law of war, one that is with us to this day.
IN LINCOLN’S INTERNAL deliberations in the summer and fall of 1862, the laws of war provided a framework for ethical decision making. But from the Revolution to the Philippines, the laws of war served a number of additional functions, too, sometimes for good and sometimes for ill. The laws of war facilitated cooperation between the United States and the world. That was the role of the international law idea of neutrality, which helped harmonize the tense relations between a new nation and the warring states of Europe. That was the vital role of the laws of war in April 1861 as well, when Lincoln opted for a blockade so as to coordinate his efforts with the interests of Britain and France. The laws of war also served as a basis for the criminal punishment of individuals, as in the military commission prosecutions charging violations of the laws of war in the Civil War. The laws of war promoted the power of the executive branch in the U.S. constitutional system of checks and balances, as when Lincoln claimed the power of military emancipation for himself. They advanced the partisan interests of political factions aiming to mobilize public opinion. (Henry Clay used them thus, only to be disappointed that he could not turn them sufficiently to his advantage to keep Andrew Jac
kson out of the White House.) They promoted the military discipline of American soldiers, as in Winfield Scott’s Mexico. They helped establish the professional identity of the legal and military professions, as among the Philadelphia lawyers and the West Point officers of the early republic. They promoted the interests of strong nation-states (witness Britain at the Declaration of Paris in 1856) and they offered shelter to the claims of weak nation-states (consider, for example, the United States in its fragile first years).
The laws of war do many things. And given the myriad uses to which they have been put, it ought to come as no surprise that the history of the laws of war in America has been one of repeated adaptations to fit the felt imperatives of the moment. Men like Jefferson and John Quincy Adams created (almost from whole cloth) a supposed rule against the freeing of enemy slaves. Winfield Scott stumbled upon the concept of the war crime in Mexico. The statesmen of the Civil War reversed the United States’ positions on the rules governing blockades and on the permissibility of privateering. Emancipation impelled the administration to reverse a customary American position yet again. The laws of war were thus not an unchanging body of principles. Nor were they the exclusive province of learned jurists developing rules according to some autonomous internal logic of the law. To the contrary, statesmen and soldiers, lawyers and judges, critics and diplomats forged the laws of armed conflict to do battle in actual hostilities. To paraphrase Oliver Wendell Holmes, Jr., the life of the laws of war has not been logic. It has been experience.
American self-interest powerfully influenced specific adaptations of the laws of war. Indeed, alignment between the law and the interests of those who have aimed to deploy it has been a persistent theme in the history we have seen here. How else can we explain the Civil War reversals of long-standing U.S. policies on questions of neutrality and blockades? Only if we allow for a liberal dose of self-interest in the elaboration of the laws of war can we even begin to make sense of such episodes.
In this, the laws of war are much like the law in most other domains. Historians of the law of contracts, or automobile accidents, or antitrust, or constitutions do not expect the law to develop independent of its context or untethered from the needs and interests of the most concerned parties. How could it? What kind of law would this be? We no longer think of the law as something given to Moses on a mountaintop. We know that law is made by human beings for human beings. The law thus arises out of the very social phenomena it aims to regulate. That is a pervasive fact about law of all kinds. Its contours respond to external imperatives.
But as with other areas of the law, the laws of war are not constituted solely of self-interested revisions to suit the needs of the moment. The engagement with the laws of war that has been a hallmark of the American experience from the Revolution to the present has generated a tradition with powerful continuities. Even as it has taken on new content to suit the felt needs of new situations, it has retained a recognizable continuity with the past. If the law of war were nothing but the condensed interests of particular constituencies at particular moments, it could not do the work that it does—work in which American leaders since the founding have invested heavily. The neutrality arguments of Washington and Marshall in the tenuous years of the early republic had weight to whatever extent they successfully mobilized Americans and appealed to principles thought to be shared across the Atlantic. Winfield Scott’s military commissions, controversial though they were, gained legitimacy over summary executions by participating in and being shaped by the law. The Civil War blockade promoted coordination with Great Britain by adopting a set of terms and a framework that had international legitimacy. Indeed, the advancement of American interests through the laws of war today works when and if those laws retain some modicum of the same legitimacy. If the laws of war were utterly hollow, they would have fallen out of use long before now. Disillusionment ought to have led so many of us to disregard the law as hogwash that their invocation would be pointless. But the legal regulation of armed conflict has not fallen away. It has shown stunning durability.
Writing a half century ago, the eminent Civil War historian James G. Randall pronounced the history of the customs and laws of war “a disheartening business.” It often is. But sometimes, just sometimes, there are glimmers of hope. In the end, the most remarkable feature of the history of the laws of war is the durability and persistence of efforts to make rules for the no-man’s land of battle. For despite all the skeptics and critics, despite all the abuses and self-interested interpretations, very few of us are willing to do away altogether with the idea of a shared set of rules.
IN THE DECADE since 9/11, the laws of war have pushed their way to the fore once again. Thousands of American men and women now spend their professional lives working through the knotty problems of applying the laws of armed conflict to the wars of the twenty-first century. They work in the armed forces and in the State Department, in the White House and the U.S. Attorney General’s office, in the U.S. Supreme Court and the Department of Defense. They come from nongovernmental watchdogs such as the Red Cross and human rights organizations, from private law practice and from law schools. They are soldiers, journalists, lawyers, and more. From personal experience, I can say that in universities across the country, students flock to courses on international armed conflict and its legal regulation in numbers unimagined a decade and a half ago.
Application of the international rules of armed conflict in twenty-first-century settings has yielded answers no more frequently or easily than it did in the days of Lieber and Lincoln. In trying to make sense of the controversies of our own day in light of the history of America’s first century, however, we can do away with some dubious ideas that have come to occupy prominent places in debates about the laws of war. It is not true, as is often imagined by partisans on all sides, that the laws of war were once simpler than they are now, or that they were once less controversial. It is not the case that Americans in some time of yore did not worry themselves much about the laws of war. Nor is it the case that Americans simply adhered unquestioningly to those laws. Our history is far messier than that. It is hard even to say that the stakes are higher now, even if the weapons we and our enemies bring to bear are ever more powerful. Controversies over the laws of war and novel questions of great difficulty and grave significance are as old as the republic. And that alone is a vitally important insight, for once we have dispatched the myths of the left and the right, once we have dispelled the false versions of the American past, we can see a long history of soldiers and statesmen and lawyers who struggled with many of the same dilemmas we grapple with today.
Today, the laws of war serve at least as many functions as they did 150 years ago. They mark the outer boundaries of morally acceptable behavior. Just as they did in Lincoln’s time, for example, they put torture beyond the pale. U.S. officials sometimes scoffed at such limits after 9/11, and the laws against torture did not prevent interrogation practices like the water-boarding that reprised Edwin Glenn’s water cure of a century ago. But the laws of war played important roles in the torture controversy, even if they did not operate to prevent it or punish its principal perpetrators. What the laws of war accomplished was to help organize and galvanize the critics of torture. The international law that the United States helped to create more than a century ago added immeasurably to the costs America incurred by permitting such interrogation practices to go forward—costs measured in precious international reputation and credibility.
The case of torture barely begins to exhaust the many roles for the laws of war. International standards such as those in the Geneva Conventions serve to coordinate American actions with those of our allies. Adherence to the laws of armed conflict, to take another example, shapes U.S. targeting decisions, reducing civilian casualties and assisting American efforts to win over civilian hearts and minds. The laws of war here and elsewhere serve as a useful guide to the nation’s long-term interests. And as in the nineteenth century, the laws of war
have their domestic uses, too. Presidents—Republican and Democratic alike—have invoked the laws of war to bolster expansive conceptions of the power of the executive branch. The laws of war serve as the basis for the criminal prosecution of al-Qaeda members and associated forces in military commissions at Guantánamo Bay. At the same time, they function as a way of mobilizing opposition to the use of force, both domestically and abroad.
There is another, more abstract continuity with the past as well. For despite heated controversies and raging debates, it is the international laws of war that we are still arguing about. Andrew Jackson and his partisans often sneered with contempt at those they thought of as the self-appointed guardians of international morality. Sometimes they did so with considerable justification. But even Jackson’s views of armed conflict were powerfully shaped by the law of war tradition. Much the same can be said of the lawyers and politicians who in the immediate aftermath of 9/11 sought to dismiss the laws of war as an anachronism. For they have found themselves enmeshed in arguments about those laws ever since.
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