Civil Wars by David Armitage

Author:David Armitage
Language: eng
Format: epub
Publisher: Knopf Doubleday Publishing Group
Published: 2017-02-06T16:00:00+00:00

At this point, Lieber did not distinguish as clearly as Halleck would in his International Law between rebellion and civil war. A civil war could have the features of both a “true war or contentio justa” and a domestic police action against insurrection, but not all insurgents could be punished as if they were common criminals: “It is a question of expediency, and not of law or morality.”49 How to overcome this double nature of civil war—as the conduct of both true war and mere criminality—presented a dilemma that Lieber could not resolve. His lecture notes include a fragment reflecting on the various principles underpinning the laws of war as the prelude to an account of their application in civil war. They tail off inconclusively: “Now in Civil War &c &c.” Likewise, when, later in 1862, Lieber would publish a pathbreaking short treatise titled Guerrilla Parties: Considered with Reference to the Laws and Usages of War, he would deliberately not “enter upon a consideration of their application to the civil war in which we are engaged.”50

That would have to wait until Henry Halleck invited him, in August 1862, to present his views to the public “on the usages and customs of war.” Halleck’s request came at a poignant moment. In his reply to the general’s request, Lieber revealed that he had just received news of his son Oscar’s death in Richmond, Virginia, after fighting in the Confederate army at the Battle of Williamsburg. “Civil war,” he said mournfully, “has thus knocked loudly at our own door.”51 He soon began work on a short text on the laws of war, which he had been contemplating for some time—his Columbia College lectures were probably a preparation—but which now gained added impetus from Halleck’s invitation and the tragedy hanging over his family. The problem, he confided to the U.S. attorney general, Edward Bates, was the lack of authoritative precedents in the legal literature. “Civil war has been little treated by the authors on the Law of War. Nor has there ever been a Civil War with the peculiar characteristics which signalize ours.” He would, he told Bates, have to rely instead on “the authority of common sense.”52

The correspondence between Halleck and Lieber revealed just how little guidance common sense could offer at such a fraught moment. Lieber’s draft had deliberately not distinguished among civil war, rebellion, insurrection, and invasion, but Halleck asked for each to be delineated in the Code. The war was not quite into its second year when Lieber circulated what he thought was a complete draft of the Code in February 1863. A handful of copies had been printed to allow a select group of readers to annotate and comment on Lieber’s work. On one remaining copy, Henry Halleck notes a striking absence from the list of the laws of war: “To be more useful at the present time it should embrace civil war as well as war between states or distinct sovereignties.”53 Lieber might have deliberately omitted civil war in an effort to dodge difficulties he could already perceive it would create.

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