Afterwar: Veterans’ Care as a Law of War Imperative – Part II

In a famous poster from 1917, a woman with a Red Cross armband stands behind a seated man with a bandaged head and closing eyes. She holds him in her arms. “In the Name of Mercy,” the text reads, “Give!” Yet the American Red Cross was more than just a charity seeking contributions in the name of mercy. It was also the organization the United States co-opted in the First World War to fulfill its obligation to its wounded warriors, a move consonant with, even if not attributable to, the precepts set out in the writings of Grotius, Vattel, and Kant (for an overview see Part I).

Humanity and Justice

Francis Lieber, architect of the U.S. Civil War Lieber Code, knew Vattel’s Law of Nations and Kant’s Perpetual Peaceand resented them. While Vattel and Kant and others like them had sought to limit the horrors of war for humanitarian reasons, Lieber sought to leverage the ends of war to justify the means and reworked the “laws and usages of war” to fit that idea. What emerged became the driving force of Lieber’s theory, the idea of military necessity.

Still, implied in the concept of military necessity was the principle of humanity, reflected in the idea that whatever is not militarily necessary should be avoided. “We kill in battle,” he said, “in order to remove the opposing obstacle—an armed soldier in our way; but when vanquished and disarmed, he ceases to be an obstacle in the way.”

Humanity was one of the two principles Vattel and Revolutionary Era Americans emphasized. Yet the implications for the care and support of veterans of war were more urgently a matter of justice. At the heart of the principle of justice after war is the fact that the care and support of veterans of war also constituted a recruitment-and-retention encouragement.

Still, these precepts were in relation to a State’s responsibility to its own citizen-soldiers. Lieber addressed, as did the Geneva Conventions, States’ responsibility to “protect” not only its own ex-soldiers but also those of the enemy. This idea may have come from Lieber’s own experience as a wounded veteran of the Prussian Wars of Liberation.

Lieber, the Veteran of War

After disastrous defeats in 1806 at the hands of the armies of Napoleon Bonaparte, leader of the new French republic, Prussia rebuilt its war machine and reformed its war theory. Chief among the reformers was Gerhard Johann David von Scharnhorst (a mentor to Carl von Clausewitz). Scharnhorst helped imbue the Prussian military establishment with the German Enlightenment concept of Bildung, which Kant also espoused, and which sought to balance the violence of war with intellect and intelligence.

Above all, the reforms of Scharnhorst’s Military Society sought to counter the genius of Napoleon. The Wars of Liberation, 1813-1815, would put the reforms to the ultimate test. One of the soldiers to fight with Scharnhorst’s armies in the Wars of Liberation was a young Francis Lieber, then only 15, who would go on to become Lincoln’s closest advisor on the laws of war during the U.S. Civil War.

Lieber barely lived to see Napoleon’s defeat at Waterloo. In a moment, after months of fighting, just before his unit descended into the valley where the battle would be fought, shots tore through Lieber’s neck, then his chest, leaving him severely wounded. It was there—so close to the battlefield that he could look down into the lower-ground as the fighting continued—that fellow wounded soldiers administered care: drinks of water, protection from desperate peasants who plundered the dead and dying, dressing of wounds.

Soon, Lieber was taken to a house and cared for, then transported to a local hospital in a cart alongside many wounded French. Lieber traveled from town to town by way of various waystations until reaching a hospital in Cologne, where he eventually regained health. These experiences no doubt shaped his view on the care of wartime wounded.

In 1835, twenty years after Waterloo, Lieber became a professor of history and political economy at what is now the University of South Carolina, and, in 1838, published his Manual of Political Ethics, in which he observed, “after a battle the wounded enemy is taken care of equally with the wounded friend.”

In 1857, forty-two years after Waterloo and a few years before the outbreak of the U.S. Civil War, Lieber became professor of history and political science at what is now Columbia University in New York. There he established a lecture course on the law of war. Lieber’s lectures invited much attention, with audiences estimated at a hundred people and the transcripts printed in the New York Times. In the fifth lecture, delivered 4 February 1862, Lieber said,

In early times the wounded were killed, or tortured, or allowed to die, as might please the victor. In modern warfare, the wounded on the battle-field is protected in his misfortune; the wounded enemy is a sacred person; he is of course a prisoner, but must be provided for by him into whose hands he falls. . . . The wounded of both parties should be treated the same.

Again, what are soldiers hors de combat but veterans?

Reminiscent of Machiavelli roughly three hundred years before, Lieber, engaging in discourses of his own, also invoked the ancient Roman historian Titus Livy. As reported, “in commencing his second lecture on this subject, [Lieber] quoted a passage from Livy, that—‘There are also rights of war as well as peace, and we so maintain that wars ought not only to be carried on by force, but also by justice,’—and remarked that he was willing to deliver all of his lectures with this motto at the head.” Here was another expression of the concept of Bildung. “[I]t is a blessed thing that even in a time when men are arrayed against one another to kill and destroy,” he said, “that humanity cannot be perfectly rejected.”

Humanity was a principle characterized in the negative, that is, in terms of what not to do. Yet, as urged in Lieber’s writings, the dictates of humanity also counseled in favor of an affirmative responsibility to protect.

“Protection” as an affirmative responsibility also appears in the Geneva Conventions. Now, the ICRC carries out its “exclusively humanitarian mission,” which is not only to “protect the lives and dignity of victims of armed conflict and other situations of violence,” but also “to provide them with assistance.” Providing veterans of war with assistance—in particular, among other things, treatment for post-traumatic mental health challenges—is needed now as much as if not more than ever, and for all veterans of war, “to whatever nation they may belong.”

Considerations at Home and Abroad

Far from being a matter lost to antiquity, Kant’s concept of justice after war has remained relevant in treatments concerning the jus post bellum. Perhaps the most prominent scholar to write on the jus post bellum is Canadian philosopher Brian Orend (who, notably, earned his doctorate from Columbia and now teaches at Canada’s University of Waterloo). However, notwithstanding Orend’s work, the jus post bellum remains underdeveloped. Worse, considerations for justice after war fail to account for issues concerning veterans.

This shortcoming is indeed a failure. As James Dubik, a retired three-star general of the U.S. Army has observed:

Traditional jus in bello principles arise from the tension between winning and fighting well…. This traditional account is necessary but insufficient, for it leaves out the moral responsibilities of those sending citizens-who-become-soldiers to war in the first place.

Dubik’s observations suggest that veterans’ care should be a part of not only justice after war, jus post bellum, but also jus in bello. Considerations obtain at home and abroad.

At home, ultimate responsibility for a State’s armed forces is with the head of state by way of the national government. This is reflected in Hague IV: “The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the Laws and Customs of War on Land.” These instructions, as with the Lieber Code and laws of war since, would have the force of law for the armed forces to which they apply.

Add to that the notion of commanders’ responsibility. The law of war expects—and even takes for granted—that commanders are responsible for the conduct of their forces. Each military organization within the State’s armed forces were, as they are today, “To be commanded by a person responsible for his subordinates.”

The point is, if precepts concerning veterans are incorporated into the law of war, they will become instructions issued to States’ armed forces, instructions that have the force of law. If such provisions are part of the law of war, they can be imposed on the States’ armed forces by way of the head of state. This has implications for justice of war, in war, and after war.

Also important are the obligations “to respect and ensure respect” for the law of war “in all circumstances” and the corollary of “dissemination.” “In order to implement the law of war and effectively protect the victims of armed conflicts,” according to the ICRC, “the contents of its rules must first be made known.” Making known the issues facing veterans of war is an important purpose of recasting the care and support of veterans of war as a law of war imperative.

Similar considerations obtain abroad. “The care of those unfortunate victims of war is the indispensable duty of every state,” Vattel said, “in proportion to its ability.” Yet many States and non-States alike have little to no ability to care for their veterans of war. Let the international community of States take up the burden to care for veterans of war as an expansion of its humanitarian mission.

To the international community of States: Mandate guidance for the care and support of veterans of war at home; begin work on a new convention concerning the care and support of veterans of war abroad; let the care and support of veterans of war constitute a ground for granting refugee and asylum status.

Conclusion

Irrespective of whether it was permissible under international law for newly-promoted Lieutenant Colonel Roosevelt to return to the war after treatment at the Red Cross hospital in Paris, he did. Later breveted to Colonel, he led the 26th Infantry Regiment in the Meuse-Argonne Offensive, pushing the Germans to the Belgian border until the armistice on November 11th.

Soon after the war, Roosevelt also led the campaign to establish what would become the American Legion. Yet, before the establishment of the Legion, the purpose and activities of the American Red Cross during the First World War made that organization as well a veterans’ organization. The narrative suggests an association between the dictates of the law of war and the care and support of veterans of war.

It is at least for the sake of the principle of humanity that the care and support of veterans of war should be a law of war imperative—humanity, to be sure, as well as justice. Voiced in the writings of Grotius, Vattel, Kant, and Lieber, humanity and justice counsel in favor of establishing the care and support of veterans of war as a law of war imperative.

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Maj T. Nelson Collier is a reserve Marine currently serving as an attorney advisor in international and operational law and the law of war.

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