Yesterday was the 150th anniversary of the Emancipation Proclamation--the instrument by which Abraham Lincoln transformed the Civil War from a struggle against Southern secession into a moral crusade to rid the nation of the blight of slavery. In a commentary published on the New York Times Opinionator blog, John Fabian Witt, a professor at Yale Law School and author of Lincoln's Code: The Laws of War in American History, draws an interesting connection between the Proclamation and the formulation of the Lieber Code.
The Lieber Code, more formally known as Instructions for the Government of the Armies of the United States in the Field, is the forerunner of the Uniform Code of Military Justice, which governs the conduct of U.S. military personnel while also codifying the law of armed conflict for them. In a broader sense, the Lieber Code is the forerunner of the international law of armed conflict--or international humanitarian law--as a whole. In the late nineteenth century, a number of European countries modeled their own codes of military conduct after the Lieber Code, thus contributing to the convergence of views on international humanitarian law that was manifested in the 1907 Hague Conventions and the 1949 Geneva Conventions.
Witt notes that the emancipation of slaves was contrary to the laws of war as they were understood at the time. The Confederacy's president, Jefferson Davis, reacted strongly against the Emancipation Proclamation and threatened to respond by enslaving or executing any captured black Union troops while also subjecting their white commanding officers to punishment as war criminals. The Union threatened retaliation for any such responses and the Civil War seemed to be on the verge of taking a decidedly uncivil turn.
In this context, a new code of conduct for the Union armies was created by Columbia University law professor Francis Lieber. Its provisions were drawn largely from customary international law, but it defended the emancipation of slaves by the Union as a humanitarian measure and promised a vigorous defense of the rights of black soldiers. Article 58 states, "The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint."
The Union hardly had a spotless record in its conduct of war. General William Tecumseh Sherman, in fact, regarded his own cruel tactics as an essential part of bringing the war to a successful conclusion. In his September 1864 letter to the city of Atlanta, he wrote, "You cannot qualify war in harsher terms than I will. War is cruelty, and you cannot refine it; and those who brought war into our country deserve all the curses and maledictions a people can pour out." In the end, however, the Lieber Code probably helped to deter some of the inhumane conduct that might have occurred in its absence. And, without a doubt, it contributed to the international effort to codify the law of armed conflict.