Francis Lieber’s Living Legacy
It is an honor to pen one of the first posts for the Lieber Institute for Law and Land Warfare’s Articles of War. This forum provides an important venue for practitioners of the law of war to engage with each other—both domestically and internationally—to articulate what the law of war is, how soldiers apply it, and how we can promote this body of law in future conflict.
The relationship of Articles of War to West Point and the U.S. Army Judge Advocate General’s Corps (JAG Corps) is significant in several ways. West Point plays a critical role in the education and training of a substantial number of our future Army leaders. West Point has also held a prominent place in the history of our nation, and as discussed below, the history of our JAG Corps.
The United States’ commitment to the law of war dates to the creation of the Continental Army on June 14, 1775. Weeks after its formation, on June 30, the Continental Congress established the Articles of War, which laid out the rules, regulations, and orders the Army would observe. Nearly all of its sixty-nine articles were concerned with maintaining the good order and discipline of the Army through courts-martial—an early indicator of how the institution of the court-martial would be intertwined, at its core, with the development of discipline.
General Washington recognized, however, that in addition to instilling discipline in his soldiers, he had to inspire respect for the laws and customs of war. In September 1775, for example, he ordered then-Colonel Benedict Arnold during his detachment’s march to Canada to “[c]heck every Idea; & crush in its earliest Stage every Attempt to plunder even those who are known to be Enemies to our Cause.” Washington demanded the same from the British Army, as demonstrated by his petitions in August 1775 to General Thomas Gage to treat American prisoners humanely. General Washington also routinely issued General Orders to the Continental Army, forbidding plunder and commanding “humanity and tenderness” to civilians in recognition that such conduct would distinguish “brave Americans” from the British and Hessians.
The Army JAG Corps also traces its history to 1775, and our own practice of the law of war and military justice has historical ties to West Point. In September 1780, the second Judge Advocate General of the Army, Colonel John Laurance, led the court-martial of British Major John André, who was captured carrying plans for the defenses of West Point. As many know, Benedict Arnold, who was promoted to major general and appointed commander of the strategic garrison at West Point, conspired with Major André to sell those plans to the British. André was captured south of West Point, tried at a court-martial by a panel of officers at Tappan, New York, and convicted of being “a Spy from the Enemy.” The court-martial recommended, in accordance with “the law and usage of Nations[,] … he ought to suffer death.” On October 2, 1780, Major André was executed by hanging.
The very name “Lieber Institute” also holds historical significance for the law of war, West Point, and the JAG Corps. The institute’s namesake, Francis Lieber, was born in Berlin and fought as a teenager for Prussia against Napoleon’s army at Waterloo, where he was severely wounded and left for dead. After recovering, he embarked on a remarkable journey that led him throughout Europe and eventually to America. By the time he reached the United States in 1827 at the age of twenty-seven, Lieber had “engaged in two wars, … received his doctorate at Jena, had acquired a healthy distaste for the police of Prussia, and had voluntarily expatriated himself.” Lieber continued his quest for knowledge and the study of war, and became a professor at South Carolina College before joining the faculty at Columbia University (then known as Columbia College), where he wrote extensively about the conduct of war.
By the time Professor Lieber advised the U.S. Attorney General in 1861 on the law governing the exchange of prisoners in the American Civil War, he had been thinking about—and importantly, acting in accordance with—the precepts of the law of war for years. Francis Lieber was a soldier-scholar-lawyer.
In 1862, Lieber was lecturing on the “Laws and Usages of War,” when he captured the attention of General Henry Halleck, then the general-in-chief of the Union Army. In response to General Halleck’s request for Lieber’s views on the belligerent status of men sent by Confederate forces disguised as civilians, Lieber produced a pamphlet titled Guerilla Parties Considered with Reference to the Laws and Usages of War that the Army printed for distribution to its own forces. Shortly afterwards, Lieber wrote General Halleck suggesting that “the President ought to issue a set of rules and definitions providing for the most urgent cases, occurring under the Laws and Usages of War, and on which our Articles of War are silent.”
By the spring of 1863, Lieber and a board of officers finalized—and President Lincoln approved—the “Instructions for the Government of Armies of the United States in the Field.” The instructions were also known as General Order Number 100 or, more informally, as the Lieber Code. As many have noted, the promulgation of the Lieber Code is generally regarded as the first time in modern history that a nation has codified the law of war to regulate the conduct of its forces in battle. Indeed, the Lieber Code garnered much interest in Europe and provided the foundation for much of the Hague Regulations of 1899 and 1907—laws that still govern the conduct of battle today.
But perhaps one overlooked point in the storied history of Lieber is a common qualification of those who developed the Lieber Code. They were soldiers, practitioners of war who were the most concerned with regulating conduct in armed conflict. Lieber had been a soldier and was the father of three men fighting in the Civil War. His son Guido Norman Lieber, who was an officer in the Civil War, later served as a professor in the Department of Law at West Point, and ultimately became our Corps’ longest serving Judge Advocate General from 1884 to 1901.
This brings us to our final, and most important point, about the ultimate importance and significance of Articles of War. The last two decades have witnessed an explosion in the number of forums dedicated to the law governing conflict, whether couched as national security law, the law of war, the law of armed conflict, international humanitarian law, or—as some argue—international human rights law. Normally, an increased number of experts contributing to a field of study is positive, and in the study of the law of war, or the law of armed conflict, or international humanitarian law, it usually is. But, as LTG Pede has said elsewhere, there is a real danger in the sheer volume and density of writing, publishing, and commentary on the law of armed conflict. Some actors even deliberately flood the “literature zone” to generate a “weight of community” phenomenon. This volume of literature presents the very real possibility that people will no longer be able to tell the difference between what the law is, and what some want the law to be. Between the law as it is—an instrument to reduce the horror of war—and what it is not—a prohibition of war.
Let us be clear: The contributions of scholars and non-governmental organizations to the study of the law of war is essential, and often causes us as army to critically examine ourselves in sometimes uncomfortable ways we might not otherwise do. However, the present volume of discourse can lead to misperceptions of what the law actually is. After all, State practice occupies a prominent role in how customary international law is formed. And that practice is a consequence of the advice given by judge advocates and practitioners in the Department of Defense.
Yet, outside perspectives are essential. This is where our practitioners must engage with academia, non-governmental organizations, and the public. Such engagement will make us better—better at understanding the law, better at applying the law, and better at advising our commanders in combat. There is then the undeniable obligation charged to our judge advocates and lawyers within the Department of Defense to know where the law ends and where aspiration begins. We have no doubt this publication will enhance the study of the law of war and give a valuable perspective to all—students, scholars, and soldiers.
In closing, we hope the true impact of Articles of War is on the cadets studying to become officers and leaders. Our nation’s military leaders have always been well versed in, and dedicated to, the application of the law of war. Our deep-seated national respect for the law is the light we follow that has often distinguished us from our foes. Emphasizing the rule of law is imperative in the education of cadets. This is not a new concept—remarkably enough, in 1859, Francis Lieber received the support of General Winfield Scott—himself trained as a lawyer—to have the law of war taught to cadets at West Point. Although Lieber’s efforts did not come to fruition then, over 160 years later, an institute bearing his name and a publication dedicated to his passion now exist to further his work.
Francis Lieber’s work—now our work—is essential to those of us called to the noble profession of arms. War is a brutal and ugly business. General of the Army Dwight Eisenhower said, “I hate war as only a soldier who has lived it can, only as one who has seen its brutality, its futility, its stupidity.” But in war, our legal and moral obligation is to minimize suffering to the greatest extent possible, while also defeating our enemy. As our Chief of Staff, General McConville drumbeats—winning matters—there is no second place in combat. This delicate balance between humanity and lethality has no better home for study than West Point, the Lieber Institute, and Articles of War. We look forward to the next chapter to be written in advancing the study and practice of the law of war, and we especially encourage our Army, leaders, and lawyers alike, to use this forum to sharpen the quill and your mind.
Lieutenant General Charles N. Pede is the 40th Judge Advocate General of the United States Army, having assumed the position in 2017.
Colonel Joshua F. Berry, U.S. Army, is the Deputy Chief of the National Security Law Division, Office of The Judge Advocate General.