The United States and the Development of the Laws of Land Warfare

• Author: Captain Grant R. Doty
• Pages: 05

224 MILITARY LAW REVIEW [Vol. 156

THE UNITED STATES AND THE DEVELOPMENT OF THE LAWS OF LAND WARFARE

CAPTAIN GRANT R. DOTY1

1. Introduction

   Historian Geoffrey Best has called the period from 1856 to 1909 the law of war's "epoch of highest repute."2 The defining aspect of this epoch was the establishment, by states, of a positive legal or legislative foundation superseding a regime based primarily on religion, chivalry, and customs.3 It is during this "modern" era that the international conference became the forum for debate and agreement between states and the "multilateral treaty" served as the positive mechanism for codification.4

   While the two major "streams"5 or "currents"6 of the laws of war ("The Hague Laws" and "Geneva Laws") can trace their beginnings to this epoch, it is the history of "The Hague Laws" which most closely corresponds with this remarkable period. This article examines The Hague "stream" with a particular focus on the United States' role in codifying the laws of land warfare. Specifically, this article seeks to establish a definitive link between General Orders No. 100 issued by the United States in

   1863 (often referred to as the Lieber Code)7 and The Hague Convention IV Respecting the Laws and Customs of War on Land ratified in 1907.8

   While anticipating that this historical research would benefit political scientists interested in examining how variations in a state's relative power over a period of years affected its ability to develop and influence international laws and regimes, this analysis may also have significant legal implications. First, the Vienna Convention9 recognizes that, though a treaty's text is the primary tool jurists use to interpret and apply the conventional law emanating from a particular treaty (such as the laws of land warfare in Hague Convention IV), it also affirms the relevance of the "legislative history [or] travaux preparatoires."10 Therefore, if the link between codes is not merely circumstantial and tangential but is rather explicit and sequential, in other words if each code served as the basis for the subsequent code, the travaux preparatoires of Hague Convention IV of 1907 would logically include the entire history from the Lieber Code onward.

   Second, given that the laws of land warfare are based largely on customary law, they gain strength from evidence of "both extensive and virtually uniform" practice.11 Therefore, a more comprehensive historical awareness of the durability and depth of The Hague Law's roots can only help to enhance the legitimacy and strength of the laws themselves. Specifically, if this research confirms, as some assert, that America has played the "leading role in the codification of the laws of war"12 this could assist United States military legal advisors and manual writers in more effec-

   tively communicating the "gravity and preeminence" of particular norms to their commanders.13 Such knowledge could be of great value to American military lawyers.

   While not intending to produce a detailed genealogical analysis of each particular article in every existing code, it soon became obvious that the assignment of paternity, from one code to another, was desirable. For if it were demonstrated that an indisputable and sequential thread did exist, scholars could examine code revisions temporally and research records related to those modifications to ascertain what state, non-state, or individual actors brought about particular changes and why.

   Albeit subtle allusions to, or inference of, an inter-connectedness between codes, historians and jurists have failed, as far as I could ascertain, to offer explicit proof that a thread truly existed. Therefore, after a brief description of three preparatory conferences, which served as precedents for the more ambitious attempts at creating a comprehensive code governing the laws of land warfare, this article undertakes the task of proving paternity. This analysis will demonstrate the unambiguous evolution starting with the Lieber Code used during the American Civil War through the Russian Proposal for the Brussels Conference14 and the resulting Brussels Declaration of 1874,15 via Convention II of the 1899 Hague Peace Conference,16 and finally ending with Convention IV of the 1907 Hague Peace Conference which is still in force today.

   In addition to the implications for international law, proof of a linkage, coupled with the fact that these codes evolved exclusively within the

   proceedings of the three above-mentioned conferences, makes examination of the United States' role, or any actor for that matter, much easier. Subsequent analysis will conclusively demonstrate that the United States' role in the development of the laws of land warfare during this "stream" was insignificant.

2. Groundwork (1856-1868)

   "Until the mid-nineteenth century the law of war, although increasingly well-developed, remained, with few exceptions, in the realm of customary international law."17 While a few bilateral exceptions existed,18 it was not until 1856 that states made the first "multilateral attempt to codify in times of peace rules which were to be applicable in the event of war."19

   In what Geoffrey Best calls the first "statutory measure" of this period,20 the Declaration of Paris of 16 April 1856, consisted of four articles which abolished privateering, addressed maritime neutrality, and identified elements of a binding blockade.21 While negotiated by only seven states,22 most sea powers later acceded to this multilateral declaration.23 The United States, on the other hand, did not sign this declaration.

   The Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of August 186424 followed the Declaration of Paris. The result of a fifteen state conference, this "brief and businesslike document [of] no more than ten articles" formalized the red cross as a symbol of neutrality and proclaimed the neutrality of the sick, wounded, and those that cared for them.25 The Geneva Convention was initially signed by nine states but "in the course of time almost all the civ-

   ilized states acceded."26 The United States again did not participate nor did it accede to this convention until 1882 because of its tradition avoiding "entangling [European] alliances."27

   The final, what may be called preparatory conference-with a narrow scope, but multilateral nonetheless-was the St. Petersburg Conference of 1868.28 Asserting, significantly, "that the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy," the resulting declaration stated simply that no contracting parties would use any exploding or flammable projectile under 400 grams.29 As Roberts and Guelff note, this declaration is "regarded as expressing . . . the customary principle prohibiting the use of means of warfare causing unnecessary suffering" and "led to the adoption of other declarations renouncing particular means of warfare" at The Hague in 1899 and 1907.30

   It is in the context of these initial attempts at codifying the customs related to war that the three more comprehensive conferences (i.e., Brussels in 1874; The Hague in 1899; and The Hague in 1907) need to be

   viewed. Before proceeding, however, let us briefly examine the Lieber Code of 1863.

3. The Lieber Code:31 The Root of the Family Tree, not a "Quarry"

   The United States' role with respect to the laws of war is most obvious in the case of Francis Lieber's code or General Orders 100. On 17 December 1862, during the American Civil War, Francis Lieber and four general officers were assigned the task of "[proposing] amendments or changes in the Rules and Articles of War, and a Code of Regulations for the government of armies in the field, as authorized by the laws and usages of war."32

   By May 1863, the Adjutant General's Office issued the fruits of Lieber's efforts33 in the form of "General Orders 100: Instructions for the Government of Armies of the United States in the Field."34 Although it was issued as an order to American soldiers in an internal conflict and was therefore not international in nature, the United States Military Tribunal at Nuremberg noted that army regulations (like, one must assume, the Lieber Code) while not international law per se, "might have evidentiary value, particularly if the applicable portions had been put into general practice."35

   After an initial draft of his code had been completed on 20 February 1863, Lieber wrote General Halleck, commander of Union forces at the time and a student of international law, stating that "nothing of the kind exists in any language" and that he "had no guide, no ground-work, no text-book."36 While stating a bit dramatically that his "guides" were simply "[u]sage, history, reason, and conscientiousness, a sincere love of truth,

   justice, and civilization" it seems evident that he produced, as he had claimed, "the law and usage" of war as it existed at the time.37 As the Supreme Court established in The Paquete Habana in 1900 after the Spanish American War, evidence of such "ancient usage . . . ripening" contributes to customary law.38

   In a later letter (20 May 1863) written after the issuance of General Orders 100, Lieber told Halleck immodestly39 that "it will be adopted as basis for similar works by the English, French, and Germans . . . . [and] is a contribution by the United States to the stock of common civilization."40

   While one should always read self-appraisals skeptically, his assessment, as we will see,41 was not illusory. In addition to the fact that "similar manuals or codes were issued by Prussia, 1870; The Netherlands, 1871; France, 1877; Russia, 1877 and 1904; Serbia, 1878; Argentina, 1881; Great Britain, 1883 and 1904; and Spain, 1893,"42 its greatest impact has been on international codes.

   Representative of many recent historians and legal scholars who have written on the subject, Geoffrey Best notes that "[Francis]...