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WORLD POLICY JOURNAL

CODA: Volume XIX, No1, Spring 2002
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On Showing "A Decent Respect"

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Invade Iraq? As we were closing these pages, the war drums were beating in Washington for unilateral armed intervention to depose Saddam Hussein’s regime in Iraq and replace it with America’s handpicked choices in Baghdad. Writing in the March 11 New Yorker, the usually well-informed Seymour Hersh reported that many senior Bush administration officials believed it was not whether, but when, the action would take place, the best bet being this fall. One rubs one’s eyes: an unfinished war remains underway in Afghanistan, U.S. advisors are now deployed across half the world, from the Philippines and Yemen to the contested gorges of the Caucasus—yet with all this happening, the Bush team seems to be bracing for a full-court invasion of Iraq, requiring at a minimum 150,000 American troops.

Put aside the symbolic matter of George W. Bush seemingly settling paternal accounts with Saddam Hussein. Ignore the logistic problems of assaulting Iraq without willing Arab allies, and pass over the parlous risks of appearing as infidel outsiders bent on installing pliable clients in a turbulent Islamic region to govern Iraq. Consider instead what America’s founders called "a decent respect to the opinion of mankind," a phrase embedded in the Republic’s birth certificate. The Declaration of Independence went on to itemize the specific affronts ascribed to George III and his ministers, the casus belli justifying a resort to armed rebellion. The declaration’s phrases grew wings, and were taken up gratefully by innumerable brave patriots elsewhere.

How curious that in this age of CNN and the Internet the Bush White House seems so tongue-tied, so incapable of making a convincing case for its use of force. The attitude seems to be that asserting, and reasserting, America’s rectitude suffices. To be sure, Americans needed little persuading that Osama bin Laden was the culprit responsible for September 11. Yet a Gallup poll in nine Muslim nations this February found that only 18 percent believed Muslims were responsible for the attacks, and three out of four persons opposed America’s Afghan campaign. Doubtless this partly reflects the media bias in the nine countries, but it bodes ill for any U.S. invasion of Iraq. Washington, after all, has yet to convince even its European allies that Baghdad assisted bin Laden’s network, or that Saddam Hussein’s menace is more than conjectural. A thought occurs: whatever happened to the time-honored tradition of publishing blue books and white papers to document an adversary’s misdeeds?

The lapse extends to rhetoric. President Bush’s one memorable phrase in his State of the Union address—"axis of evil"—provoked more confusion than enthusiasm. As noticeable in the same address was the president’s failure to mention by name the many allies that helped bring off military and political successes in Afghanistan. When he finally acknowledged their vital assistance in his March 11 speech, mentioning no fewer than 13 countries, he tellingly said nothing about the United Nations, an essential partner in the Afghan reconstruction program. This churlish silence is consistent with ongoing American penury (President Clinton is as guilty as Bush père et fils toward the United Nations). The world organization’s slashed budget is now half that of South Dakota and is $600 million less than the Tokyo fire department’s.

Whose Rules of War, Anyway?
American diplomacy’s other grievous verbal miscue concerned the protracted internment of captives of war from the Afghan campaign. Granted, people of goodwill can reasonably differ with the Bush administration’s resolution of the difficult circumstances it confronted in dealing with four different categories of detainees: (1) prisoners of war captured in Afghanistan; (2) lawful and unlawful combatants held in Afghanistan or elsewhere outside the United States; (3) illegal aliens in the United States; and (4) legal aliens with permanent resident status in America accused of complicity in terrorism. (These categories were defined and analyzed by Aryeh Neier in the February 14 issue of the New York Review of Books.)

Among those captured were dangerous killers, and a legal case for their incarceration has been made by Yale’s Ruth Wedgwood, a member of this journal’s advisory board—that unlawful combatants are not the same as prisoners of war. Yet initially, the White House barely troubled to defend mass detentions, and only did so after an outcry in Europe over prisoners held in Guantanamo Bay, Cuba, and the intervention of Secretary of State Colin Powell. Washington’s basic rejoinder was that the Third Geneva Convention, which the United States ratified in 1955, does not extend its protections to unlawful combatants. For sake of argument, even assuming this is true, in terms of public advocacy the Bush team blew a golden opportunity to educate everybody, including Americans on the history and need for those Geneva protections—which were literally initiated by the United States.

Four considerations justify the most scrupulous attention to the laws of war. First and most obviously, the protections and benefits are reciprocal, and abuse of POWs constitutes a war crime, and was so treated at the Nuremberg trials. Second, no offense figures more frequently in the State Department’s annual human rights report than indefinite detention of suspects, many of them accused of terrorist acts or beliefs. For the United States to do the same gives every foreign offender a facile alibi. Third, decent treatment of POWs discourages fight-to-the-death resistance. And finally, the very laws of war that are in contention were first put into writing by an American, Francis Lieber, an unjustly forgotten democratic hero from Prussia.

During the Civil War, Lieber drew on customary usages stemming from the age of chivalry to define the rights of POWs, including irregulars, and specify protections for civilians. Until President Lincoln promulgated General Order 100 on April 24, 1863, known since as the Lieber Code, those rules had not been codified. So impressed were Europeans that the code became the prototype for the Geneva Conventions whose prohibitions are being tested afresh. Moreover, the code also dealt with an adversary’s cultural property and sought to define licit and illicit spoils of war—also for the first time.

Lieber distilled the code from his own battlefield experiences. Born in Prussia in 1798, he fought against Napoleon as a teenage rifleman in a German regiment at Waterloo in 1815, and was wounded in the neck at Namur. This was the noontime of romantic nationalism, and Lieber’s early life sprang from the pages of Goethe and Schiller—student years at Berlin and Jena, quarrels with Prussian authorities, enlistment (like Byron) in the Greek War of Independence, evenings with the scientific explorer Alexander von Humboldt and the poet-musician E. T. A. Hoffmann, study in Rome with the renowned diplomat-historian Barthold Niebuhr, imprisonment in Prussia as a suspected democratic troublemaker, which propelled his flight, by way of Britain, to the United States in 1827.

A multilingual polymath, Lieber brimmed with plans for ascent, the most audacious being to publish in Boston what he felt the Republic obviously needed—a good, cheap encyclopedia. Thus was launched the Encyclopedia Americana, the first volume of which appeared in 1829, and a whole set of which Lieber later presented to his friend and fellow constitutional liberal, Alexis de Tocqueville. Thereafter, Leiber made a name for himself as a prolific political philosopher, as a "publicist" (a word he coined) who promoted prison reform, and as a professor, first at South Carolina College and then from 1857 at Columbia College in New York. By then, he and his wife Matilda had three grown sons and, like the country, the family divided as the Civil War broke out. Fighting for the Union were Norman and Hamilton (who lost an arm at Fort Donelson), and joining the Confederate Army was his oldest son, Oscar (killed at the Battle of Williamsburg).

During the 1860 presidential campaign, Lieber spoke out for Lincoln and against dis-union, and explained his decision to his son Oscar: "My dearest Boy," his letter began, "and if I knew a more endearing term, that I term I would use now to address you. I feel your grief most bitterly..." It was thus an acutely personal matter when Lieber was asked in 1862 by Gen. Henry W. Halleck to advise on the vexing legal status of pro-Confederate guerrillas. Were they protected by the customary laws of war?

Lieber offered his views in a 16-page essay that Halleck immediately distributed to his officers. He contended that irregular forces should not be lumped together, that the lack of a uniform was not decisive. He cited Froissart’s Chronicles and Wellington’s experiences in the Peninsular War against the French to distinguish between "the freebooter, the marauder, the brigand, the partisan, the free-corps, the spy, the rebel, the conspirator, the robber and especially the highway robber, and the rising en masse, or the ‘arming of peasants.’" Robbers and their ilk were common criminals, and were to be treated as such, while spies or any who concealed their true belligerent role were liable to execution. But, Lieber went on:

I believe it can be said that the most recent publicists and writers on international law agree that the rising of the people to repel invasion entitles them to the full benefits of the law of war, and that the invader cannot well inquire into the origin of the armed masses opposing him, that is to say, he will be obliged to treat the captured citizens as prisoners of war, so long as they oppose him in respectable numbers, and have risen in the yet invaded or unconquered portions of the hostile country. Their acting in separate bodies does not necessarily give them a different character. Some entire wars have been carried on by separate bands or capitaneries, such as in the recent war of independence of Greece.

Lieber carefully distinguishes between guerrillas and self-constituted, unpaid bands of armed men who belong to no organized army, or who take up arms and lay them down at intervals, or who carry on petty warfare by means of raids, extortion, or massacre. As applied to Afghanistan, Lieber’s words would argue for treating Taliban forces differently than Al Qaeda fighters, since the former are defending their country—and it makes no difference, following Lieber, whether Taliban soldiers lack uniforms, or whether their government had little international standing or recognition. Neither did the Greeks who fought for independence against Ottoman Turks, and neither did Marion’s swamp fighters in the Carolinas, recently glorified in a Hollywood epic, The Patriot, starring Mel Gibson.

In truth, it is the spirit as much as the letter that distinguishes the code that Lieber was called upon to prepare in 1863 for the Union armies. Animating all its articles is a plea for restraint and humanity in dealing with prisoners and noncombatants. "Men who take up arms against one another in public war," enjoins Article 15, "do not cease on this account to be moral beings, responsible to one another, and to God." Other articles read:

All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death... (Article 44).
As martial law is executed by military force, it is incumbent on those who administer it to be strictly guided by the principles of justice, honor and humanity— virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed (Article 4).

Admittedly, the spirit, if not the letter, of the code was flouted by Union forces as in Sherman’s march to the sea, always on the claim, which Lieber allowed, of military necessity. Yet he qualified that claim with these words:

Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy, and, in general, does not include any act of hostility which makes the return to peace unnecessarily difficult (Article 16).

Lieber died in 1872, just long enough to see the beginning of an international movement, bolstered by the parallel establishment of the International Committee of the Red Cross, to restrain the dogs of war. It is a rebuke to our age that the Lieber Code has been more honored in the breach than the observance. Yet it shines today as a lodestar for the United States, deserving of explicit recognition by the White House and Pentagon, as the war against terrorism continues, or widens. It was good that belatedly in March the Pentagon spelled out more clearly procedures for its military tribunals, but as the columnist William Safire and others have noted, there remains grim vagueness about the right of appeal and length of detention of POWs.

Karl E. Meyer

Note

I have drawn gratefully in this essay on the admirable biography by Frank Friedel, Francis Lieber: Nineteenth-Century Liberal, published in 1947 by the Louisiana State University Press. The text of Lieber’s paper for General Halleck is in Lieber’s Miscellaneous Writings, published by Lippincott in 1880. The text of General Order 100 can be found at www.yale.edu/lawweb/avalon/lieber.htm. Space is lacking here for a full discussion of his entry on "Assassination," which raises important questions about the use of this deadly instrument.

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