Walking Away from Nuremberg: Just War and the Doctrine of Command Responsibility

Chapter One - Just War Doctrine and General Order No. 100

11 C H A P T E R O N E Just War Doctrine and General Order No. 100 Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God. General Order No. 100 During the third year of the Civil War, the War Department issued the Instructions for the Government of the Armies of the United States in the Field—known officially as General Order No. 100 and unofficially as the Lieber Code—to the deployed forces of the United States Army. In a 1963 edition of the International Review of the Red Cross, future World Court justice Richard R. Baxter called this military order the “first modern codification of the Law of War.”1 Nine years later, retired U.S. Army Brigadier General Telford Taylor, former American chief prosecutor at the Nuremberg war crimes trials conducted under Allied Control Council Law No. 10, noted that General Order No. 100 “remained for half a century the official Army pronouncement on the subject, furnished much of the material for the Hague Conventions of 1899 and 1907, and today still commands attention as the germinal document for the codification of the laws of land warfare.”2 The theory of war found in General Order No. 100 is distinct from the three statist philosophies arising in the period following the end of Europe’s wars of religion: modern natural law theory; legal positivism; and political realism. The Treaty of Westphalia in 1648 not only ended the Wars of Reformation but also became the historical reference point for a model of international relations centered on the early modern European shibboleths of anti-interventionism and noninterference based on a theoretical equality of sovereignty between nation states. Unlike the major schools of thought associated with this Westphalian system, General Order No. 100 marked a return to traditional just war doctrine, 12 C H A P T E R O N E a premodern and less Eurocentric philosophy of warfare that (1) viewed war as an essentially moral undertaking; and (2) placed affirmative humanitarian obligations on a specialized group of individuals, namely, the military and the promulgators of military conduct. Origins of General Order No. 100 Outside of Brussels at Waterloo in June 1815, the wars of the French Revolution came to an end. These wars marked the point of departure from the premodern to the modern in warfare. In the general vicinity of the battle, at Ligny, was a soldier in the service of the king of Prussia lying close to death from wounds he received during the final allied pursuit of Napoleon. This wounded soldier, a young Berliner named Francis Lieber, was the future drafter of U.S. Army General Order No. 100.3 After recovering from his near-mortal wounds, Lieber went on to unconventional warfare. His attempt to fight alongside Greek irregulars against the Ottoman Army was frustrated as a result of the treatment he received from his allies, a disillusioning experience that was shared by many other European volunteers who fought in the Greek war of independence .4 Between his bouts of military service, Lieber received a doctor of philosophy degree from the University of Jena and spent time in jail for liberal agitation against the increasingly conservative Prussian state. Emigrating to the United States in 1827, he later became the chair of history and political economy at South Carolina College (1835– 57). Subsequently he relocated to Columbia College in New York because of his antipathy to slavery. He was eventually appointed to a professorship of history, political science, and law. Lieber became one of the founding fathers of both American political science and, although he was never formally trained as a lawyer, American legal studies. His approach to law and politics were based upon the discipline of hermeneutics in the anti-idealistic and anti-rationalistic tradition of the German Protestant theologian Friedrich Schleiermacher and the German historian Wilhelm Dilthey. In fact, he was America’s first leading exponent of classical hermeneutics. For Lieber, laws and policies are subject to internal interpretation because they are composed in human languages whose component parts—words—have meanings that vary according to time, place, and the subjective worldview, or weltanschauung, of the original author(s). Lieber’s political and legal hermeneutics resulted in a “practical” ethic Just War Doctrine...