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

Editors’ Note: This post on veterans’ care as a law of war imperative is published on the fiftieth anniversary of the end of the military draft in the United States. On January 27, 1973, the U.S. Department of Defense announced that it would no longer issue draft orders, effectively ending active conscription and ushering in the all-volunteer force.

Modern history and argument suggest that the care and support of veterans of war should be a law of war imperative. The law of war began with considerations in mind for soldiers hors de combat. Law-of-war authorities have argued that the State has a duty to care for veterans. All this contributes to a new perspective on the jus post bellum, or justice after war.

The United States’ National Security Strategy of 2022 is the first to mention the nation’s obligation to veterans of war. The commitment is not just empty rhetoric. The nation’s obligation to veterans of war is at the heart of Abraham Lincoln’s call “to care for him who shall have borne the battle, and his widow and his orphan” made in his second inaugural address. This passage is the source of the motto of the U.S. Department of Veterans Affairs (VA). As 2023 marks fifty years of the United States’ all-volunteer force, now is the time to consider a truth that history and classical argument support: Veterans’ care should be a law of war imperative.

Beginnings of the Law of War

On 18 July 1918, near Soissons, France, as the First World War raged in Europe, Major Ted Roosevelt Jr. led an infantry battalion in a charge against a German machine-gun nest. During the fight, a round tore through the back of his knee, disabling him from further action. Out of the fight, Roosevelt decamped to an American military hospital in Paris, about a hundred kilometers southwest of the battlefield. The hospital was a facility of the American Red Cross. Roosevelt’s exemplum illustrates a point. The history of the International and American Red Cross reveals that the law of war began with considerations in mind for the care and support of soldiers hors de combat—veterans.

By the time of the First Geneva Convention in 1864, the care of wounded and sick was well established as an imperative of modern warfare. The very name of the treaty made its purpose clear: Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Paramount among its provisions was Article 6:

Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for…. Those who, after their recovery, are recognized as being unfit for further service, shall be repatriated. The others may likewise be sent back, on condition that they shall not again, for the duration of hostilities, take up arms. (Emphasis added.)

In her travels throughout Europe, Clara Barton heard of the International Committee of the Red Cross (ICRC) and resolved to establish a branch in the United States, which she did in 1881. Congress chartered the American Red Cross as a “body corporate and politic” in 1900. Its purpose was, in part, to “furnish volunteer aid to the sick and wounded of armies in time of war, in accordance with the spirit and conditions” of the First Geneva Convention, and to “perform all the duties devolved upon a national society by each nation which has acceded to said treaty.”

Throughout the United States’ involvement in the First World War, the American Red Cross was a veterans’ organization. “During and after the war,” as noted by historian Jessica Adler, “the army and federal government allowed private organizations, such as the American Red Cross, to play a large role in defining and executing policies pertaining to the nature and extent of hospital care for soldiers and veterans.”

It was in 1918 that the U.S. government co-opted the American Red Cross in Paris for the wartime effort to care for wounded and disabled veterans. This detail and others—including that the American Red Cross supplied the Army with 20,000 nurses during the war, and that the outpost in Paris provided prosthetic limbs to amputees—support the point that the American Red Cross was a veterans’ organization. Take it from Adler—“Perhaps no civilian organization was more integral to efforts surrounding soldiers’ rehabilitation than the American Red Cross.”

Yet the status of the American Red Cross as in part a body politic hinted at its establishment as a veterans’ organization that was not altogether private but somewhat public. “We have the legal status of ‘a federal instrumentality,’” according to the organization, “due to our charter requirements to carry out responsibilities delegated to us by the federal government.” This was as true in 1918 as it is today.

The domestic beginnings of the law of war also included considerations for soldiers hors de combat. Among the provisions of the Lieber Code were protections for the wounded and disabled. Article 49 defined “prisoner of war” to include enemy wounded or disabled, with prisoner-of-war privileges. Article 61 prohibited the killing of disabled enemy troops, while Article 71 made such killings punishable by death. Captured wounded enemy, in accordance with Article 79, were to be medically treated. Article 105 urged the exchange of wounded prisoners on the condition they not return to the fighting.

What are soldiers out of the fight and prohibited from further service but veterans?

Early Writings on the Law of War

The United States’ Department of Defense Law of War Manual notes Hugo Grotius and Emer de Vattel among the “classical publicists”—and Francis Lieber, architect of the Lieber Code, among the “recognized scholars”—that “have been widely cited and relied upon as practitioners have sought to interpret and apply the law of war.” Grotius and Vattel both considered the care and support of veterans of war as a law of war imperative.

Hugo Grotius

“[W]hen all are not engaged in arms, but only some, those, who give up their time to the calling of soldiers, and expose their lives to its hazards, have a right to be rewarded and supported by the body politic.”

—Hugo Grotius, On the Law of War and Peace, 1625

After Maurice of Nassau became leader of the Dutch Revolt, Dutch philosopher Hugo Grotius publicly criticized Maurice’s views on control of the armed forces, and Maurice had Grotius jailed. Later, Grotius escaped (smuggled out in a bookchest) and fled for asylum. His reputation having preceded him, he settled in France, set up near Paris by patronage of Louis XIII of France. It was in France that he wrote his most famous work, On the Law of War and Peace, which included the above passage on veterans’ support, and which he dedicated to the king.

In 1633, possibly inspired by Grotius, Louis XIII planned a veterans’ home near Paris. That project was abandoned for lack of funds, but Louis XIV took up a similar project, also near Paris. In 1674, Louis XIV opened the veterans’ home, Hôtel National des Invalides.

When Louis XIV opened the Les Invalides, his purpose was, in part, to encourage recruitment and retention. As historian John A. Lynn notes, “contemporaries [argued] that provision for old and infirm soldiers would make young and able men more willing to enlist.” Les Invalides inspired another veterans’ home, founded for, in part, the same reason.

In 1677, Scotsman Roger Boyle, a veteran of the English Civil Wars and a Member of Parliament, wrote A Treatise of the Art of War, which he dedicated to his king, Charles II of England. “It is the duty of a governor also to have an hospital in his government,” he wrote. “For besides the just charity of such care, who can expect the soldiery shall frankly hazard themselves, if due provision be not made for the wounded and sick.”

In 1680, Charles II founded the Royal Hospital Kilmainham in Ireland and, two years later, the Royal Hospital Chelsea in Britain. In funding the construction of the Royal Hospital Chelsea, Charles II met resistance in parliament and instead attempted to raise money from the church. In a letter to the religious head of the Church of England from 1684, the king mentioned among the purposes of the veterans’ home the intent to “remove” what he called “discouragements.”

Emer de Vattel

“It is repugnant, not only to humanity, but to the strictest justice, that generous citizens, heroes who have shed their blood for the safety of their country, should be left to perish with want, or unworthily forced to beg their bread.”

—Vattel, Law of Nations, 1760

Law at the time of the founding of the United States included international law, what was then the “law of nations.” An important figure in the field was Swiss writer Emer de Vattel. Vattel’s Law of Nations was a watershed. “It is to the praise of Vattel,” as historian and translator Mary Campbell Smith noted in 1903, “that he did much to popularise among the highest and most powerful classes of society, ideas of humanity in warfare, and of rights and obligations of nations.”

It was Vattel who expressly regarded the support of veterans of war as a matter of “humanity” and “justice.” And it was Louis XIV’s and Charles II’s veterans’ homes, Les Invalides and the Royal Hospital Chelsea respectively, that Vattel alluded to in his passage on veterans’ care.

The homes prepared for soldiers and poor officers who have grown gray in the service, and who are prevented by weakness or wounds from providing for their wants, can be regarded as a part of military expenses. The magnificent institutions in France and England for disabled soldiers and sailors mark the honorable performance by the sovereign and the nation of a sacred duty. The care of those unfortunate victims of war is the indispensable duty of every state, in proportion to its ability. It is repugnant, not only to humanity, but to the strictest justice, that generous citizens, heroes who have shed their blood for the safety of their country, should be left to perish with want, or unworthily forced to beg their bread…. Nothing can be more just than that those citizens who avoid all the dangers of war, should bestow part of their riches for the relief of their valiant defenders.

In the Revolutionary War, Nathanael Greene, George Washington’s second-in-command general, echoed the point, as did several federal judges and Supreme Court justices after the war. Yet, more important than any influence Vattel’s Law of Nations may have had is what became, according to Washington, the Revolution’s sociopolitical necessity concerning “the obligations this country is under to that meritorious class of veteran non commissioned officers and privates who have been discharged for inability.”

Immanuel Kant

Yet another influence was the Prussian philosopher Immanuel Kant, whose writings emphasized justice after war.Although not typically included as a just war theorist similar to Grotius and Vattel, Kant was the most prominent thinker of the Enlightenment to talk of justice after war. “The rights of a state consist,” he wrote in Metaphysics of Morals (1797), “partly of their right to go to war, partly of their right in war, and partly of their right . . . after war.”

Yet, with respect to afterwar, Kant refers to matters of peace, particularly of States’ “right to constrain each other to leave [the] condition of war.” Still, Kant’s war theory contemplates the State’s duty to its citizen-soldiers, and not separate from but rather together with the State’s right of war. “As regards the original right that free states in a state of nature have to go to war with one another,” he asked, “what right has a state against its own subjects to use them for war against other states, in such a way that whether they shall go to war does not depend on their own judgment but they may be sent into it by the supreme command of the sovereign?”

It would seem to be the least among the duties of a representative government to provide care and support to the people who fight. For they, the citizen-soldiers, must always be regarded as co-legislating members of the state—not merely as means, but also as ends in themselves.

Part I Summation

The beginnings of the law of war included considerations for soldiers hors de combat. Writings on the law of war stressed the care and support of veterans of war as a government duty. Still, veterans’ care as a matter of justice after war remained neglected. After Lincoln and Lieber introduced in the United States the first modern rules of engagement based on Lieber’s “laws and usages” of war, Lincoln reaffirmed the nation’s obligation “to care for him who shall have borne the battle, and his widow and his orphan,” today the VA’s motto. Yet it remained to be seen in the First World War what would come of issues facing veterans.

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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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