CARNAHAN, Lincoln, Lieber and The Laws of War

Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military
Necessity
Author(s): Burrus M. Carnahan
Source: The American Journal of International Law, Vol. 92, No. 2 (Apr., 1998), pp. 213-231
Published by: American Society of International Law
Stable URL: http://www.jstor.org/stable/2998030 .
Accessed: 11/09/2013 08:56
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.
American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access to
The American Journal of International Law.
http://www.jstor.org
This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

All use subject to JSTOR Terms and Conditions
LINCOLN, LIEBER AND THE LAWS OF WAR: THE ORIGINS
AND LIMITS OF THE PRINCIPLE OF MILITARY NECESSITY
By BurrusM. Carnahan*
The roots of the modern law of war lie in the 1860s. Developmentsin thisdecade
began in 1862 when HenryDunant published Un Souvenirde Solferino,' whichinspired
the conclusion twoyearslaterof the firstGeneva Conventionon treatmentof the sick
and wounded.2Four yearslatercame the firstmultilateralagreementto ban the use of
a particularweapon in war.3And in 1863, beforeeitherof these agreementshad been
concluded, the earliestofficialgovernmentcodificationof the lawsof war was promul-
gated by the United States.This codificationwas issued as General Orders No. 100,
Instructionsfor the Governmentof Armiesof the United.States in the Field, more
commonlyknownas the "Lieber Code."4
Draftedbyan academic intenton drawinggeneralprinciplesof human moralityfrom
empiricalevidence,and issuedbya Presidentdeterminedto foundhispolicieson human
reason,the Lieber Code maybe consideredthe finalproductof the eighteenth-century
movementto humanizewar throughthe applicationof reason.5From thisstandpoint,
the Lieber Code's greatesttheoreticalcontributionto the modern law of war was its
identificationof militarynecessityas a general legal principleto limitviolence,in the
absence of any other rule.6This principlesoon achieved internationalrecognitionin
the St. PetersburgDeclarationof 1868.7
* Senior Analyst, Science Applications International Corp., McClean, Va.; Lt. Colonel, USAF (ret.).
'See ARTHUR NuSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 226 (rev.ed. 1954); HENRY DUNANT,
A MEMORY OF SOLFERINO (English ed. 1959).
Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Aug. 22, 1864,
2
reprintedin THE LAWS OF ARMED CONFLICTS 279 (Dietrich Schindler & JiH Toman eds., 3d rev. ed. 1988)
[hereinafter ARMED CONFLICTS]. The Convention, and the international Red Cross movement, grew out of a
proposal by Henry Dunant of Geneva, Switzerland, who witnessed the sufferingof the wounded after the 1859
battle of Solferino between France and Austria. See NUSSBAUM, supra note 1, at 224-27. In Un Souvenir de
Solfeino, Dunant called for "a special congress to formulate" an "international principle, with the sanction
of an inviolable Convention, which . . . might constitute a basis for Societies for the relief of the wounded
in the various countries of Europe." DUNANT, supra note 1, at 126.
3Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight,
Nov. 29/Dec. 11, 1868, reprintedin ARMED CONFLICTS, supra note 2, at 101.
4U.S. War Department, General Orders No. 100, Apr. 24, 1863 [hereinafter Lieber Code], reprinted inARMED
CONFLICTS, supra note 2, at 3.
See, e.g., NUSSBAUM, supra note 1, at 129-31, 139, 227; FRANK FREIDEL, FRANCIS LIEBER, NINETEENTH-
CENTURY LIBERAL 147-51, 332-35 (1947); Phillip S. Paludan, Lincolnand theRhetoric ofPolitics,in A CRISIS OF
REPUBLICANISM 73 (Lloyd E. Ambrosius ed., 1990). In contrast, Dunant's A MEMORY OF SOLFERINO, supra note
1, with its overt appeal to "noble and compassionate hearts and . . chivalrous spirits," id. at 118, represents
a 19th-centuryRomantic approach to limiting war. Many of the Romantics (including Dunant) did not reject
the Enlightenment appeal to reason as such but, rather, attempted to go beyond it to engage the emotions,
cf HUGH HONOUR, ROMvANTICISM 280-82 (1979). Just as some Romantic artists and writers seem to have
attempted to shock the public into religious faith, id. at 277-80, so Dunant, through grittydescriptions of
individual suffering after Solferino, sought to shock the public into humanitarian action.
6 Military necessity is widely recognized as one of the underlying principles of the modern law of war. See,
e.g.,MICIIAEL BOTHE,KARL PARTSCH & WALDEMAR SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS 194-
95 (1982); U.S. OF THE AIR FORCE, INTERNATIONAL LAW-THE
DEP'T LAW OF ARMED CONFLICT AND AIR
OPERATIONS, para. 1-3a(1) (AFP No. 110-31, 1976); 2 GEORG SCHWARZENBERGER, INTERNATIONAL LAW 9-13
(1968); MYRES S. MCDOUGAL & FLORENTINO P. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER 521-22
(1961); cf U.S. DEP'T OF THE ARMY, THE LAW OF LAND WARFARE, para. 3.a. (Field Manual No. 27-10, 1956)
[hereinafter FM 27-10].
7Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight,
supra note 3.
213

214 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 92:213
ORIGINS AND INFLUENCE OF THE LIEBER CODE
From the U.S. War Department'spoint of view, the Lieber Code was primarilya
responseto the expansionof theUnitedStatesArmyduringthe CivilWar.The old army
had been a band of thirteenthousandfrontierprofessionals;in the war it expanded to
a mass forceof a millionmen. The prewararmyhad been small enough, and its pace
of lifeslowenough,for'juniorofficersto learn the fundamentalsof military law and the
customsof warfromtheirmore experiencedcolleagues. The CivilWar army,however,
was led bythousandsofinexperiencedvolunteerofficers who had nowhereto turnwhen
facedwithlegal issuesrangingfromthe drafting of courtmartialchargesto the paroling
of prisonersof war. Militarylaw and the internationallegal environmentof military
operationswere unfamiliareven to officerswho had been lawyersin civilianlife.
This unsatisfactory situationstimulatedvariousreforms,includingraisingthe status
and expandingthepowersof thearmy'schieflegal officer(theJudgeAdvocateGeneral)
and deployingjudge advocate officersto the staffsof field commanders.The specific
response to the widespreadignoranceof the laws and customsof war was the General
Orders No. 100, the Lieber Code.8 The code was named for its drafter,Dr. Francis
Lieber, a professorof law at Columbia College (now Columbia University). A veteran
of combat in Europe whose own familyhad been divided by the AmericanCivilWar,
Lieber was uniquelyqualifiedto codifythe lawsbywhichthatwarshould be conducted.
As a soldier,Lieber had servedagainstNapoleon in theWaterloocampaignand partici-
pated in the GreekWar of Independence. He emigratedto the United Statesin 1827
afterfacingpoliticalpersecutionin hisnativePrussia,and by1857he had been appointed
Professorof Modern History,PoliticalScience and International,Civil and Common
Law at Columbia.9
A strongabolitionist,Lieber became an earlyand activebacker of the Union side in
the Civil War. In 1861 and 1862, he gave the U.S. Armyvaluable guidance on the
treatmentof Confederateprisonersand the handlingof guerrillasand otherirregular
forces.Arguingthat,underthelawsofwar,thefederalGovernmentcould accord individ-
ual Confederatesthe privilegesof belligerencyforhumanitarianreasons,withoutin any
wayrecognizingthelegitimacy oftheirgovernment, he solveda difficult
politicalproblem
forthe Lincoln administration.'0
Buildingon thequasi-officialrelationshiphe had developedwiththeWarDepartment,
he proposed to the General in Chiefof the Armyin November1862 thatthe President
"issue a setof rulesand definitionsprovidingforthemosturgentissuesoccurringunder
theLaw and usagesofWar." The President,he urged,"as Commanderin Chief,through
the Secretaryof War, ought to appoint a committee,say of three,to draw up a code
. . .in which certainacts and offenses(under the Law of War) ought to be defined
and, wherenecessary,the punishmentbe stated."11
See U.S. DEP'T OF THE ARMY, THE ARMY LAWYER: A HISTORY OF THE JUDGE ADVOCATE GENERAL'S CORPS,
1775-1975, at 49-52 (1975) [hereinafter THE ARMY LAWYER]; HAROLD HYMAN,A MORE PERFECT UNION 188-
93 (Sentry1975) (1973); Michael Hoffman,UnplannedbutImperative: TheOriginsoftheJudgeAdvocateGeneral's
MIL. L. REV.,Summer1979, at 129, 132-35.
CivilAuthority,
9 SeeFREIDEL, supranote 5, at 11-18, 28, 52, 294. Two of Lieber's sons servedin the U.S. Army,one losing
an arm because of wounds.The thirdson died of woundswhilein Confederateservice.
1' See RICHARD S. HARTIGAN, LIEBER'S CODE AND THE LAW OF WAR 9, 43 (1983); THE ARMY LAWYER, supra
note 8, at 61-62. LincolnregardedtheUnion as indivisible.The secedingstategovernmentsand the Confeder-
acy theyformedwere merelycombinationsof treasonousindividuals,and had no other internationalor
domesticlegal status.See,e.g.,MARK GRIMSLEY,THE HARD HAND OF WAR 11-13 (1995); James McPherson,
Lincolnand theStrategy ofUnconditional
Surrender,in LINCOLN, THE WAR PRESIDENT 31, 41 (Gabor Boritted.,
1992).
" Letter,FrancisLieber to HenryW. Halleck (Nov. 13, 1862), quotedin H-ARTIGAN,
supranote 10, at 79. The
General in Chief,Major General HenryW. Halleck, had himselfpublished a treatiseon internationallaw,
and Lieber addressedhim "as thejurist,no less than as the soldier." Id.

1998] LINCOLN, LIEBER AND THE LAWS OF WAR 215
A little over a month later, Lieber was himself appointed, together with four general
officers,to a board charged with proposing "a code of regulations for the government
of armies in the field, as authorized by the laws and usages of war."'2 In practice, Lieber
devoted himself to codifyingthe laws and customs of war, while the other members (two
of whom had been lawyers in civil life) turned to a revision of militarylaw and made
only minor changes in Lieber's drafts.13 Afterits approval by President Lincoln, the code
was issued on April 24, 1863.14
As both "the firstattempt to check the whole conduct of armies by precise written
rules"' 15 and "a persuasivelywrittenessay on the ethics of conducting war," 1 the Lieber
Code projected its influence far beyond the ranks of the United States Army. In 1868
an international commission meeting in St. Petersburg, Russia, applied the code's princi-
ple of militarynecessity to ban the use of small-caliber explosive bullets because they
would cause "unnecessary suffering."'7 In 1870 the Prussian Government adapted the
code as guidance for its army during the Franco-Prussian War. The code also formed
the basis of the Brussels Declaration of 1874, which in turn influenced the Hague
Regulations on the Laws and Customs of War on Land of 1899 and 1907, the foundation
of the law of land warfare for the entire twentiethcentury.""
DEFININGMILITARYNECESSITY
In draftinghis code, Lieber drew upon a miscellany of historical and contemporary

precedents and documents.'9 President Lincoln's proclamations, and other public docu-
ments referringto militarynecessity,were undoubtedly among the resources he used in
defining the doctrine of militarynecessity.
In particular, the general definition of militarynecessity in Article 14 appears to have
drawn on one of President Lincoln's proclarnations. Lieber's definition reads as follows:
"Art. 14. Militarynecessity, as understood by modern civilized nations, consists in the
necessityof those measures which are indispensable for securing the ends of the war, and
which are lawfulaccording to the modern law and usages of war." Modern authorities on
the law of war continue to refer to this definition,particularlythe phrase "indispensable
for securing the ends of the war.' 20 Its origins can be traced to the President's response
to a premature emancipation proclamation issued by Major General David Hunter.
12U.S. War Department,Special Orders No. 399, Dec. 17, 1862, para. 5, quotedin id. at 85.
See FREIDEL, supra note 9, at 332-35.
14When published,the Lieber Code was officially describedas "instructionsforthe governmentof armies
in the field,prepared by FrancisLieber, LL.D., and revisedby a board of officers."The Presidentordered
that theybe published "for the informationof all concerned." See H,-ARTIGAN, supranote 10, at 106-07.
Althoughissued to all organizationsof the U.S. A-myas a general order, the Lieber Code was therefore
informational, ratherthan directive,in nature.That is, PresidentLincoln was not order-ing all membersof
the armyto complywiththe code; rather,he was issuingitas one source (albeit an officiallyapprovedsource)
of the lawsand customsof war. See FREIDEL, supra note 9, at 334-35.
15NUSSBAUM, supra note 1, at 227.
1 FREIDEL, supra note 9, at 335.
17Declaration Renouncingthe Use, in Time of War,of ExplosiveProjectilesunder 400 GrammesWeight,
supra note 3.
" SeeRegulationsannexed to Convention[IV] Respectingthe Laws and Customsof War on Land, Oct. 18,
1907, 36 Stat. 2227, reprintedin ARMED CONFLICTS, supra note 2, at 63; HARTIGAN, supra note 10, at 22. Cf
NUSSBAUM, supra note 1, at 227.
19See FREIDEL, supra note 9, at 333.
20 See U.S. DEP'T OF THE AIR FORCE, supra
note 6; McDouc.Ai & FEIICIYANO, supra note 6; FM 27-10, supra
note 6. But see BOTHE, PARTSCH & SOLF, supra note 6 (defining military necessity as the principle justifying
measures"relevantand proportionate"to securingthe promptsubmissionof theenemy).Theywould reserve
necessity.Id. at 194 n.7. On the other
the term"indispensable" to cases of "urgent" or "imperative"military
hand, MCDOUGAL & FELICIANO, supra, at 528, appear to regard "relevant and proportionate" violence to be
equivalentto "indispensable" violence.

On May9, 1862,GeneralHunter,commandingfederalforcesin Union enclavesalong

the Carolina and Georgia coasts, issued a general order declaring all slaves held in
Georgia, Florida and South Carolina to be free. Withinsix months,Lincoln himself
would issue a preliminary emancipationproclamation,but in May the timewas not yet
ripe to declare emancipationa war aim of the Union.2'
On May 19, therefore,the Presidentissued a proclamationdeclaringHunter's order
void and noting that the Governmenthad not authorized any militarycommander
to declare slaves free. He also, however,held the door open to eventualadoption of
emancipationas a uniform,nationalmilitary measure:
I furthermake knownthatwhetherit be competentforme, as Commander-in-
Chiefof the Armyand Navy,to declare the Slaves of any stateor states,free,and
whetherat any time,in any case, it shall have become a necessity to the
indispensable
maintenanceofthegovernment, to exercisesuch supposed power,are questionswhich,
under myresponsibility, I reserveto myself,and which I can not feeljustifiedin
leavingto the decision of commandersin the field.22
As an ardentenemyof slavery,Lieberwas undoubtedlyfamiliarwithLincoln's proclama-
tion of May 19 and would have been anxious to legitimizethe President'spowerto free
slavesas a military
measure,despitethe thenwidelyheld beliefthatthe federalGovern-
ment had no power over slaveryin the states,even when those stateswere in active
rebellionagainstit.Bydefiningmilitarynecessityto include all measures"indispensable
forsecuringthe ends of the war," Lieber ensured that,whateverotherlimitsthislegal
principle mightplace on militaryoperations,it would be broad enough to include
PresidentLincoln's standardformilitaryemancipation-"a necessityindispensableto
the maintenanceof the government."
MilitaryNecessityas a Restraint
Followingthegeneraldefinitionin Article14,Lieber illustratedtheconceptofmilitary
necessitywithexamples of measures that are justifiedby militarynecessity,as well as
those thatremainforbidden"according to the modernlaw and usages of war."
Art.15. Militarynecessityadmitsof all directdestructionof lifeor limb of armed
enemies,and of otherpersonswhose destructionis incidentallyunavoidable in the
armed contestsof the war; it allows of the capturingof everyarmed enemy,and
everyenemyof importanceto the hostilegovernment, or of peculiardanger to the
captor; it allows of all destructionof property,and obstructionof the waysand
channelsof traffic, travel,or communication,and of all withholdingof sustenance
or means of life fromthe enemy; of the appropriationof whateveran enemy's
countryaffordsnecessaryfor the subsistenceand safetyof the army,and of such
deception as does not involvethe breakingof good faitheitherpositively pledged,
regardingagreementsenteredinto duringthewar,or supposed bythe modernlaw
of war to exist.Men who take up armsagainstone anotherin public war do not
cease on thisaccount to be moral beings,responsibleto one anotherand to God.
Art. 16. Militarynecessitydoes not admit of cruelty-that is, the inflictionof
suffering for the sake of sufferingor for revenge,nor of maimingor wounding
except in fight,nor of tortureto extortconfessions.It does not admitof the use of
poison in anywar,nor of thewantondevastationof a district. It admitsofdeception,
but disclaimsacts of perfidy;and, in general,militarynecessitydoes not include
any act of hostility
whichmakes the returnto peace unnecessarilydifficult.
21
In addition,governmentpolicyon slaveryhad to be uniform,and not subjectto the pro-or antislavery
viewsof regionalcommanders.Beforethe CivilWar,Hunterhad been one of the fewabolitionistofficersin
the U.S. regulararmy.SeeEDWARD MILLER, LINCOLN'S ABOLITIONIST GENERAL (1997).
22
ABRAHAM LINCOLN, SPEECHES AND WRITINGS 1859-1865, at 318-19 (LibraryofAmericaed., 1989) (empha-
sis added).

Althoughnotreadilyapparenttoday,recognitionofmilitary necessityas a legal precon-

dition for destructionrepresentedan enlightenedadvance in the laws of war in the
nineteenthcentury.In the firsthalf of thatcentury,the law of nationspermittedthe
captureor destructionof anyand all propertybelongingto anypersonowingallegiance
to an enemygovernment, whetheror not thesemeasureswere linkedto military needs.
As ChiefJusticeMarshallhad noted in 1814:
That war gives to the sovereignfull rightto take the persons and confiscatethe
propertyof the enemywhereverfound,is conceded. The mitigationsof thisrigid
rule, which the humane and wise policy of modern times has introduced into
practice,will more or less affectthe exercise of thisright,but cannot impair the
rightitself.23
That the propertymighthave no military significance
was irrelevant.Military
necessity
wasnota legal prerequisitetovisitingindiscriminate
destructionon theunarmedsubjects
of an enemystate,althoughthe commentatorsagreed withthe ChiefJusticethat this
practicemightnot be a "humane and wise policy."The unfettereddiscretionto enjoy
enemy property,and to "take" noncombatantenemy nationals,24was put to rest by
Lieber's doctrineof militarynecessity.
MilitaryNecessityas a LicenseforMischief
Unfortunately, the Confederateauthoritiesdid not welcome the Lieber Code as a

favorabledevelopment.To the contrary, theyused itforpropagandaagainsttheLincoln
administration.25
A copyof the code was officially
deliveredto Colonel RobertOuld, the
ConfederateAgentforExchangeofPrisoners,on May22, 1863.26OnJune 24, Confeder-
ate Secretaryof WarJamesSeddon issued a lengthydenunciationof the Lieber Code
as a "confused,unassortedand undiscriminating compilation"of "obsolete" and "repu-
diated" views.27
Seddon's centraltarget,however,was the doctrineof militarynecessity:
necessity. . . the acts of atrocityand violencewhichhave
[I] n thiscode of military
been committedby the officersof the United Statesand have shocked the moral
sense of civilizednationsare to findan apologyand defense.
23
Brownv. United States,12 U.S. (8 Cranch) 110, 122-23 (1814). As counsel beforethe Supreme Court
in the case of Ware v. Hylton,3 U.S. (3 Dall.) 199 (1796), John Marshallhad unsuccessfully relied on this
rule to argue thatstategovernments, duringthe AmericanRevolution,could "confiscate"privatedebtsowed
to Britishcreditorsbecause these were the propertyof enemyaliens. The Court rejected thisargumentas
inconsistentwiththe termsof the Treatyof Paris ending the war. SeeFRANCESRUDKO, JOHN MARSHALL AND
INTERNATIONAL LAw 26-30 (1991).
24 By the 18th century, European powersno longer enslavedcaptured enemynationalsor held them for
ransom,seeThe Antelope,23 U.S. (10 Wheat.) 66 (1825) (Marshall,C.J.),thoughthepracticewas stillcommon
in navalwarsbetweenthose powersand the Muslimprincipalitiesof NorthAfricawell into the 19thcentury,
seeROBERT ALLISON, THE CRESCENT OBSCURED/THE UNITED STATES AND THE MUSLIM WORLD 1776-1815, at
107-26 (1995). Early19th-century peace treatiesbetweenthose statesand the United Statesincludedguaran-
tees that,in the eventof anotherwar,captiveswould not be enslavedbut would be treatedas prisonersof
war. SeeTreatyof Peace and Amity,U.S.-Algiers, June 30, 1815,Art.17, 6 Stat.224; Treatyof Peace and Amity,
U.S.-Tripoli,June4, 1805,Art.16, 8 Stat.214. Slaveryin theUnitedStatesitselfwas the mosttragicand longest
lastingeffectof the doctrinethatwar captivescould be enslaved.Most of the Africansbroughtto America
were originallyenslavedas a resultof theircapturein warsbetweenthe kingdomsand nationsof WestAfrica.
See PETER KOLCHIN, AMERICANSLAVERY20 (1993). For an individualexample, see TERRY ALFORD, PRINCE
AMONG SLAvES 21-30 (Oxfordpaperback 1986). Cf. Marshall'sopinion in The Antelope,supra.
25
See FREIDEL, supranote 5, at 339.
26
Lt. Col. Ludlow to Col. Hoffman(June 6, 1863), reprinted in HARTIGAN,supranote 10, at 113. In 18th-
centuryEurope, the practicedeveloped of periodicallyexchangingprisonersof war duringthe conflictin
whichtheywerecaptured.This practicestillprevailedduringthe CivilWar,althoughitbrokedownrepeatedly.
Ould and Ludlow were,respectively, the Confederateand Union agentsforconcludingsuch exchanges,and
were the one continuing channel of communication between the two sides. Seegenerally WILLIAM HESSELTINE,
CIVIL WAR PRISONS (1930).
27
Seddon to Ould (June 24, 1863), reprinted in HARTIGAN, supranote 10, at 120.

. . . They cannot framemischiefinto a code or make an institutedsystemof

rules embodyingthe spiritof mischiefunder the name of a military
necessity.28
One prominenthistorianof the Lincoln assassinationhas even suggestedthat the
Confederategovernment mayhavesupportedclandestineoperationsto kidnapor assassi-
nate PresidentLincoln in partas a tu quoqueresponseto thisviewof the Lieber Code's
principleof militarynecessity:
It is foreignto the wayAmericanshave been taughtto thinkabout the CivilWar,
but whyshould not Southernleaders have concluded at thistime [1865] thatthe
doctrineof military necessity,so oftenand so ruthlessly
employedagainstthemby
Lincoln,justifieddirectattacksagainst him and membersof his administration?
The Union army'sown General Order No. 100 looked "with horrorupon the
assassinationof enemies," but condoned "militarynecessity,"whichit definedas
"the necessityof those measureswhichare indispensableforsecuringthe ends of
the war .... 29
The laterhistoryof the doctrinein Germanylends supportto ConfederateSecretary

Seddon's critiquethatitcould maskquestionableactivities. AdoptionoftheLieber Code
byPrussiain 1870 has been hailed as one of the earlytriumphsof the code as a restraint
on wartimebehavior.30By 1902, however,Lieber's principleof militarynecessityhad
evolved there into the doctrineof Kriegsraison, which permittedthe German armyto
violatemanyof the lawsand customsof war on the basis of military necessity.3'
This extremeformof militarynecessitywas rejected by war crimes tribunalsafter
WorldWar II, and now findsno supportamong authoritieson the law ofwar.As Article
14 of the Lieber Code stated,militarynecessityjustifiesonly those actions "which are
lawfulaccordingto the modernlaw and usages of war," i.e., thosewhichdo not violate
some specific,positiveobligationof thatlaw,such as the rule againstassassination.32
Much of the destructionincidentto warfare,however,is not governedbyspecificlegal
rules,and in the CivilWar era therewerefarfewersuch rulesthantoday.In the absence
of any positiverule of war,militaryactivity
was, and is, to be restrainedchieflyby the
doctrineofmilitary necessity.Does ConfederateSecretarySeddon's critiqueremainvalid
in such cases? Does militarynecessitymerelyembody"the spiritof mischief"so as to
28
Id. at 123-24.
29
William Hanchett,TheHappiestDay ofHis Life,in CML
WAR TIMES ILLUSTRATED, Nov./Dec. 1995, at 76,
82. The Confederategovernmentbelieved that Lincoln had approved cavalryraids aimed at capturingor
killing high Confeder-ate officials. SeeWILLLAM TIDWELL,JAMES HALL & DAVID GADDY, COME RETRIBUTION 245-
48 (1988).
311 See HARTIGAN, supranote 10, at 22; cf NUSSBAUM, supra note 1, at 227, 345 n.75.
31 See FRITS KALSHOVEN, BELLIGERENT REPRIsALs 366 (1971); JULIUS STONE, LEGAL CONTROLS OF INTERNA-
TIONAL CONFLICT 351-52 (1954). For alternative views on the application of Kriegsraisonin occupied Belgium
during World War-I, compare EYAL BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION 32-48 (1993), with
BARBARATUCHMAN, THE GUNS OF AUGUST 313-32 (1962).
32 See, e.g., U.S. DEP'T OF THE AIR FORCE, supra note 6; JAMES BOND, THE RULES OF RIOT 65-68
(1974);
STONE, supra note 31, at 352; Denise Bindschedler-Robert, ProblemsoftheLaw ofArmedConflicts,in 1 A TREATISE
ON INTERNATIONAL CRIMINAL LAw 295, 305-06 (M. Cherif Bassiouni & Ved Nanda eds., 1973). In this respect
the doctrine of military necessity is to be distinguished from absolute necessity or force majeure, either of which
might, in principle, excuse violation of any positive rule of international law, see BIN CHENG, GENERAL PRINCIPLES
OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS 71 (1953). Forcemajeureincludes only extraneous
events that make performance impossible, while necessity always involves a deliberate choice to disregard a
rule. See 1 SCHWARZENBERGER, supra note 6, at 642 (1957). Absolute necessity is also to be distinguished from
military necessity in that the existence of the state, not merely military victory, must be in peril before the
former doctrine will apply, see BIN CHENG, supra, at 71. Cf 1 SCHWARZENBERGER, supra, at 538-41. This very
high standard has rarely, if ever, been met. It is not clear whether absolute necessity would excuse violations
of the laws and customs of war. STONE, supra note 31, at 352-53, suggests that it might. Querythe impact of
absolute necessity on obligations that are jus cogens; most of the authorities on absolute necessity predate
development of the doctrine of jus cogens.

justify"acts of atrocityand violencewhichhave . . . shockedthe moralsense of civilized

nations"?Or does it,ifapplied in good faith,impose real limitson atrocity
and violence?
LINCOLN'S PRACTICE OF MILITARY NECESSITY
Anotherwayto framethese questions is to ask what PresidentLincoln believed he

was authorizingand prohibitingwhen he approved General OrdersNo. 100. Lincoln's
own decisions and practicesas Commander in Chief constitutethe best evidence on
thisissue.
In addition,thesedecisionshold morethanhistoricalinterest.The principleofmilitary
necessityremainsan importantsource of the contemporarylaw of war, even though
manyof the issues faced byLincoln and his commandersare now governedbyspecific
treatyrules. Knowingwhat militarynecessitywas thoughtto mean when the principle
was firstformulatedshould be usefulto thosewho mustapplyit in the future.
By the time he approved the Lieber Code in early1863, Lincoln had alreadygiven
considerablethoughtto the meaningof necessityin a militarycontext,and he probably
regarded militarynecessityas a general principleof law even before seeing Lieber's
draft.A lifelongproponentof reason over intuitionand emotion,33Lincoln adopted a
legal methodmarkedby "directnessof thought,"taking"the shortestdistancebetween
twolegal points."34
His mind worked in termsof basic ideas presentedas fundamentals.There was
about himno effulgent erudition,no fountainof learning,no sprayofnewthoughts
and ideas flickeringout like so manysparksfroman emerywheel. . His was the
mentalprocess of a pile driverlanding directlyon point.35
For such a mind,thedoctrineofmilitary as organiz-
necessityhad a powerfulattraction
ing principleand foundationforpoliticaland militaryaction in defenseof the Union.
"Lincoln's legal guidelinewas the preservationof the Union. He believed he had the
power to do whatwas in his soberjudgment necessaryfor thatpurpose. Whatwas not
necessaryhe would not attempt."36 Moreover," [t]he bordersof necessitywere a practi-
cal, meaningfulthingto him."37
PoliticalObjectives
The mostfundamentallimitationon military necessityrevealedin Lincoln's decisions
was thatit could be invokedonlyto attaina militaryobjective,i.e., one thatcould have
an impacton the battlefield,and nevera politicalobjective.This distinctionmayseem
absurd to thosewho accept Clausewitz'smaximthatwar is "a truepoliticalinstrument,
by othermeans."38Yet the distinctionwas centralto
a continuationof politicalactivity
Lincoln's constitutionaltheoryof presidentialwar powers.
In the 1860 presidentialelection,Lincoln and the Republican Partyhad consistently
run on the positionthat,under the Constitution,Congresscould not interfere withthe
domesticinstitutions, includingslavery,of any state,or take privatepropertywithout
compensation.39Because the Union was permanent,in his view,the statescould not
SeeDAVID HERBERT DONALD, LINCOLN 82-83 (1995); MICHAEL BURLINGAME, THE INNER WORLD OF ABRA-
HAM LINCOLN 7 (1994); Daniel Howe, WhyAbraham Lincoln Was a Whig, 16J. ABRAHAM LINCOLN ASS'N 27
(1995).
34JOHN FRANK, LINCOLN AS A LAWYER 144, 146 (Americana House 1991) (1961).
35 Id. at 144.
36
Id. at 150-51.
37 Id. at 150.
38CARL VON CLAUSEWITZ, ON WAR 87 (Michael Howard & Peter Paret ed. and trans., 1976) (1832).
"' See, e.g.,First Inaugural Address (Mar. 4, 1861), in LINCOLN, supra note 22, at 215; Speech at Cincinnati,
Ohio (Sept. 17, 1859), in id. at 59-61.

220 THE AMERICAN JOURNAL OF INTERNATIONAL IAW [Vol. 92:213
secede, and relationsbetweenthe federalGovernmentand the stateswere governedby

the Constitutionthroughoutthe CivilWar.40
If the CivilWar was a war for the federalConstitution,it had to be conducted in a
manner consistentwiththatdocument.Lincoln had to demonstrateto the people of
the North,and to pro-Unionelementsin the waveringborder states,that "law would
rule thisconflict"and that"the governmentwas being steeredbya hand strongerthan
partisancaprice."41 The constitutionaldefinitionof treasonsuggestedthatindividuals
might"levywar" againstthe United States.42Once a relationshipof "war" existed,the
Presidentcould deal withAmericanrebelson the basis of the internationallaw ofwar.43
Unfortunately, thatbodyof lawplaced fewreal limitson the treatment ofenemycivilians
or theirproperty.
Hence the political appeal, to Lincoln, of the doctrineof militarynecessityas part
of the law of war. Interferencewithproperty,slavery,civilgovernmentand otherstate
institutionsfor militarypurposes could be constitutionally justifiedas an exercise of
the President'swar powers.To take the same actions forpoliticalpurposes, however,
mightgo beyondthe powerseven of Congress.The identification of a narrowlymilitary
purpose forfederalactsin relationto rebel civilianswas thereforeessential,in Lincoln's
view,to the constitutionalityof those acts. Two of Lincoln's letters,one fromearlyin
the war and the other fromits finalmonths,illustratethe continuityof his reasoning
on this issue.
At the end ofAugust1861,GeneralJohnC. Fremontdeclared martiallaw in Missouri.
He then issued a proclamationthatconfiscatedthe propertyof Missourianssupporting
the Confederatecause and freedtheirslaves.At thattime,Lincoln was makingspecial
effortsto keep Kentucky,a slavestatethathad declared itselfneutralin the war,within
the Union.44Concerned thatFremont'semancipationdecree would alienate Kentucky,
Lincoln firstsuggested,and then ordered,thatthe decree be modified.45
Lincoln laterjustifiedthisaction to Senator OrvilleBrowningin termsof both the
slaveholdersin Kentuckyand the properapplicationof military
politicalneed to mollify
necessity:
Genl. Fremont'sproclamation,as to confiscationof property,
and the liberationof
slaves, is purelypolitical,and not within the range of military law, or necessity. If a
commandingGeneral findsa necessityto seize the farmof a privateowner,fora
pasture,an encampment,or a fortification, he has the rightto do so, and to so
hold it,as long as the necessitylasts;and thisis withinmilitary law,because within
militarynecessity.But to say thatthe farmshall no longer belong to the owner,or
his heirsforever;and thisas wellwhen the farmis not needed formilitary purposes
as when it is, is purelypolitical,withoutthe savorof militarylaw about it.And the
same is trueof slaves.If the General needs them,he can seize them,and use them;
but when the need is past,it is not forhim to fixtheirpermanentfuturecondition.
That mustbe settledaccording to laws made by law-makers, and not by military
proclamations.. .
" SeeDONALD, supranote 33, at 302-03.

4' PHILLIP S. THE PRESIDENCY
PALUDAN, OF ABRAHAM LINCOLN 79, 75 (1994).
42"Treason against the United States, shall consist only in levyingWar against them, or in adhering to their
Enemies, giving them Aid and Comfort." U.S. CONST. Art. II, ?3.
43"I think the constitution invests its commander-in-chief, with the law of war, in time of war." Letter,
Lincoln to James Conkling (Aug. 26, 1863), in LINCOLN, supra note 22, at 495, 497. Cf Louis HENKIN, FOREIGN
AFFAIRS AND THE CONSTITUTION 52 (1972): "He [the President] can exercise the rights which the state-of-war
accords the United States under international law in regard to the enemy as well as to neutrals."
44SeeJAMES MCPHIERSON, BATTLE CRY OF FREEDOM 352-53 (1988); STEPHEN OATES, WITHI MALICE TOwARD
NONE 280-83 (New American Library 1978) (1977).
45See Letters, Lincoln to John C. Fremont (Sept. 2 and 11, 1861), in LINCOLN, supra note 22, at 266-67. As
modified, Fremont's proclamation affected only property and slaves directly used in the Confederate war
effort. See MCPHERSON, supra note 44, at 353.

I do not saythatCongressmightnot withproprietypass a law,on the point,just

such as General Fremont proclaimed. . . . What I object to, is, that I as President,
shall expresslyor impliedlyseize and exercisethe permanentlegislativefunctions
of the government.46
Lincoln mayappear to have repudiatedthisreasoningwhenhe issuedhis ownprelimi-

naryemancipationproclamationexactlyone yearlater.On September22, 1862, acting
on his authorityas Commanderin Chief,the Presidentdeclared thatafterJanuary1,
1863, "all personsheld as slaves" in anyarea in rebellionagainstthe U.S. Government
wouldbe "foreverfree."47Yetthereare crucialdifferences betweenFremont'sproclama-
tionand Lincoln's thatmake thelattermorejustifiableas a measureofmilitary necessity.
Fremont'sorderwould have freedslavesto punishdisloyalactivitiesoftheslaveholder,
regardlessof whetherthose slaveswere used, or were available to be used, in support
of the Confederatewar effort.Insofaras it establisheda specificpenaltyforindividual
disloyalty,the order was political and legislative,rather than military,in character.
Lincoln's order,on the otherhand, applied onlyto slavesin areas under rebel control,
whose labor was thus available to supportthe Confederatewar effort.The promiseof
freedomencouraged those slavesto escape to Union territory, denyingtheirservicesto
the Confederacy.
Lincoln's distinctionbetweenpoliticaland military measureshad a distantecho after
the so-calledChristmasBombing of NorthVietnamin 1972. On December 13 of that
year,negotiationsto end the long Americaninvolvementin the VietnamWar ended
withoutan agreement,largelybecause of the last-minuteintransigenceof the North
Vietnamesedelegation.Five dayslater,the United Statesbegan an eleven-daybombing
campaignin Hanoi and Haiphong,NorthVietnam.48 The targetsofthecampaign,known
as LinebackerII to the U.S. military but dubbed the ChristmasBombingin the popular
media,were military installationsor war-supportingindustries,all withinthe traditional
definitionof militaryobjectivesin internationallaw.49The purpose of the campaign,
however,was not to respond to a new militarythreatfromNorthVietnam.Rather,it
was to induce the NorthVietnameseGovernmentto returnto the negotiatingtable.
One officialhistorysummarizedthe purposesof LinebackerII as follows:"Heavy bom-
bardmenton a concentrated,massivescale againsttheNorthVietnameseabilityto make
warwas the method selected to bringthe point home."50
Three yearslater,HamiltonDeSaussure and RobertGlasserquestioned the interna-
tionallegalityof theLinebackerII raidson thebasisof theirpoliticalmotivation:" [C] an
air attacksever be justifiedwhen the predominantpurpose of the raid is politicaland
when political,not military, advantagesare the immediateend soughtby the specific
attacks. . . ?,5 They later suggestedthat "even attackon militaryobjectivesmaybe
46 Letter, Lincoln to Orville H. Browning (Sept. 22, 1861), in LINCOLN, supra note 22, at 268-69 (emphasis
in original).
47 Preliminary Emancipation Proclamation (Sept. 22, 1862), in id. at 368. Concern over charges that Lincoln
was usurping legislative functions, a concern he had denounced to Senator Browning a year earlier, may
account for the President's decision to include lengthy statutory quotations in the proclamation, see id. at
369-70.
4 SeeMARTIN HERZ, THE PRESTIGE PRESS AND THE CHRISTMAS BOMBING, 1972, at 6-12 (1980).
49 See id. at 23 (air bases, rail yards and shipyards, antiaircraft sites, communications facilities, vehicle repair
shops, warehouses, power plants, railway bridges, truck parks and radar installations); JAMES MCCARTHY &
GEORGE ALLISON, LINEBACKER II: AVIEW FROM THE ROCK 41-42,97-98,101, 122-23 (U.S. AirForce Southeast
Asia Monograph Series Vol. VI, monograph 8, 1979) (airfields, surface-to-air missile storage sites, petroleum
product storage, railroad yards, transformer station).
50 MCCARTHY & ALLISON, supranote 49, at 1.
l Hamilton DeSaussure & Robert Glasser, Air Warfare-Christmas 1972, in LAW AND RESPONSIBILITY IN
WARFARE 119, 133 (Peter D. Trooboff ed., 1975).

unjustifiedwhen the militaryadvantage to be gained is not significantand political

motivesforthe attackpredominate. "52
This critique,however,pressesthe distinctionbetweenmilitaryand politicalacts too
farforpracticalapplication.As Clausewitznoted,war itselfis a politicalact. Anymajor
militaryoperationwill emanate fromboth militaryand politicalmotivations.In World
War II, forexample,the "predominantpurpose" of the NormandyinvasionofJune 6,
1944, mightbe considered a militarygoal (defeatingthe German armyin France), a
politicalgoal (the unconditionalsurrenderof Germany)or a mixed goal (liberationof
France).
Similarly,in theAmericanCivilWar,the "predominantpurpose" of all federaloffen-
sive operationswas the politicalgoal of reestablishingU.S. governmentauthorityover
the states that had seceded from the Union. According to one historian,President
Lincoln's role in "shapinga nationalstrategy of unconditionalsurrenderbytheConfed-
eracy"was his mostimportantstrategiccontributionto the Union victory. This national
strategy,in turn,gave purpose to "a military strategyof totalwar."53
Finally,if the legalityof an attackturnson the motivationor predominantpurpose
of the highestgovernmentalauthority approvingit,itwillbe impossibleforan objective
observerto determinewhethertheattackwasjustifiedbymilitary necessity.Governments
do not willinglypublicize the records of their innermostcouncils, especiallyduring
wartime.
In distinguishing the militaryfromthe politicalin his letterto Senator Browningon
GeneralFremont'sdecree,Lincoln tooka morepracticalapproach.He neverspeculated
on Fremont'smotivesforfreeingtheslavesand confiscating thepropertyofrebel'sympa-
thizers.Rather,he looked to theeffects thatunderordinarycircumstances could logically
be inferredfromFremont'sactions.A military commandermayseize whateverhis com-
mand needs,and "so hold it,as long as thenecessitylasts."A fieldcommander,however,
would ordinarilyhave no need to change the ownershipof real propertyor the status
of enslavedpersonspermanently;"when the need is past,it is not forhim to fixtheir
permanentfuturecondition."54The proper punishmentfor disloyalty was a political
questionforthe legislatureand the courts,not the military.
Lincoln's distinction betweenactingformilitary advantageand actingto punishdisloy-
altyemerged more clearlyin anotherletter,writtenover threeyearslater. On January
20, 1865, Lincoln ordered the federalmilitary commanderin Arkansasto look into the
complaintof a womanwhose house and furniturehad been seized by his forcesin the
name oftheU.S. Government.The Presidentnoted thatshe claimedto ownthisproperty
"independentlyof her husband," who was a memberof the rebel army.
It would seem thatthisseizure has not been made foranyMilitaryobject,as for
a place of storage,a hospital,or the like, because thiswould not have required
the seizure of the furniture,and especiallynot the returnof furniturepreviously
taken away.
The seizuremusthave been on some claim of confiscation, a matterof whichthe
courts,and not the Provost-Marshals,or othermilitary officersare tojudge.55
Noting that the questions raised by thiscase involvedthe ownershipof the property,
whethereitherspouse was a traitor,and whetherthe husband's treasonmade thewife's
propertyconfiscable,the Presidentcontinued:
52Id. at 137.
53McPherson,supranote 10, at 40.
54Seetextat note 46 supra.
55Letter,Lincoln toJosephJ. Reynolds(Jan. 20, 1865), in LINCOLN, supranote 22, at 667, 668 (emphasis
in original).A provost-marshal is "the head of the militarypolice of any post, camp, cityor other place in
militaryoccupation,or districtunder the reignof martiallaw." BLACK'S LAW DICTIONARY 1391 (4th ed. 1951).

The true rule for the Militaryis to seize such property as is needed for Military
uses and reasons, and let the restalone. Cotton and other staple articles of commerce
are seizable for militaryreasons. Dwelling-houses & furnitureare seldom so. If Mrs.
Morton is playing traitor,to the extent of practical injury,seize her, but leave her
house to the courts.56
CivilJustice
In 1865, as in 1861, Lincoln believed that punishment of treason was not within
militarynecessity, even though armed force might be required to suppress treason.5
Similarly,the demands of according civiljustice to loyal citizens of the United States did
not create a inilitarynecessity. Following precedents from the American Revolution, in
May 1861 the Confederate government confiscated, as enemy property,all debts owed
by persons in its territoryto creditors in federal territory,and directed that payment be
made to the Confederate treasury.58As federal armies began to take control of more
and more rebel territoryin the latter half of 1861, the administration was urged to use
militarypower to assist loyal creditors.
In his 1861 annual message to Congress, President Lincoln noted that there were "no
courts nor officersto whom the citizens of other States may apply for the enforcement
of their lawful claims against citizens of the insurgent States" in enemy territoryrecently
occupied byfederal forces,and that some had estimated the debt owed "from insurgents,
in open rebellion, to loyal citizens" as being as high as two hundred million dollars. He
nevertheless refused to regard this as a proper sphere for militaryaction:
Under these circumstances, I have been urgentlysolicited to establish, by military

power, courts to administer summaryjustice in such cases. I have thus far declined
to do it, not because I had any doubt that the end proposed-the collection of the
debts-was just and right in itself,but because I have been unwilling to go beyond
the pressure of necessity in the unusual exercise of power. But the powers of Con-
56 Letter,Lincoln to Reynolds,supranote 55, at 668.

57As Lincolnwas aware,militar-y offensesare generallyregarded
trialand punishmentforcertainwar-related
as justifiedby militarynecessity.Such offensesinclude espionage and sabotage,see,e.g.,Ex pa7teQuirin,317
U.S. 1 (1942); Lieber Code, supranote 4, Art.88; war crimes(i.e., violationsof the lawsand customsof war,
such as the murderof civiliansand prisonersof war), see,e.g.,In reYamnashita, 327 U.S. 1 (1946); Trial of
Captain HenryWirz (U.S. Mil. Comm'n 1866), in 1 THE LAwOF WAR: A DOCUMENTARY HISTORY 783 (Leon
Friedmaned., 1972); cf Lieber Code, supra,Art.59 ("A prisonerof war remainsanswerablefor his crimes
committedagainstthe captor'sarmyand people, committedbeforehe wascaptured . . ."); and assassination.
The assassinsof PresidentLincoln, for example,were triedand convictedby a militarycommissionon the
theorythattheyhad acted to aid the Confederategovernmentduringthe CivilWar. SeeU.S. War Department,
General Court-Martial Orders No. 356 (July5, 1865), in 6 A COMPILATION OF TIIE MESSAGES AND PAPERS OF
THE PRESIDENTS 342-48 (James Richardsoned., 1907).
In thewarwithMexico of 1846-1848, GeneralWinfieldScottinitiatedthe practiceof usingmilitary commis-
sionsto tryoffensesagainstthelaw ofwar.SeeK.JACK BAUER, THE MEXICAN WAR 253, 326-27 (1974). "MilitaIY
commissions,"General Halleck wrote,"differfromcourts-martial in thatthe latterare establishedbystatute
and have onlysuchjurisdictionas the law confers,whilethe formerare establishedbythe President,byvirtue
of his war power as commander-in-chief, and have jurisdictionin cases arisingunder the laws of war." In
addition,"courts-martial existin peace and war,but militarycommissionsare war courtsand can existonly
in timeof war." HenryW. Halleck, MilitaryTribunalsand TheirJurisdiction, MIL. L. REV. BICENTENNIAL ISSUE
15, 21 (1975). General Halleck was CommandingGeneral of the U.S. Armyin 1862-1864; the articlequoted
was probablywrittenin 1864. See id. at 15 note. The United States continued to use militarycommissions
throughWorld War II to tryoffensesagainstthe law of war. SeeIn reYamashitaand Ex pare Quirin, supra.
The 1949 Geneva Conventions,however,require thatprisonersof war be triedby the same courts,using the
same procedures,as trymembersof the detainingpower's own armed forces.SeeConventionon Treatment
of PrisonersofWar,Aug. 12, 1949,Art.102, 6 UST 3316, 75 UNTS 135. This requirementprobablyprecludes
the use of militarycommissionsto trymembersof the enemy'sarmed forces.
58 SeeMCPHERSON, supranote 44, at 437. This action providedshort-term financialreliefto the Confederate
war effort.By confiscatingprivatepropertyof enemycivilians,however,it also set a precedentthatLincoln
turnedagainstthe Confederacyin the EmancipationProclamation.

gress I suppose are equal to the anomalous occasion, and therefore I refer the
whole matterto Congress....59
Congress did not act, however, and as the war progressed, the U.S. Army found that
it could not operate in the midst of a civilian population and simplyignore that popula-
tion's demands forjustice. Civil chaos provoked crimes against the armyand its property,
undermined discipline within the army,and created fertileground for guerrilla activity.
Under the "pressure of necessity," federal commanders therefore established "provost
courts" to administer justice in occupied regions, and Lincoln himself approved the
creation, by U.S. militaryauthorities, of a provisional civil court in occupied Louisiana.60
Later, of course, Article 43 of the Hague Regulations declared the obligation of an
occupying commander to "take all the measures in his power to restore, and ensure, as
far as possible, public order and safety,while respecting, unless absolutely prevented,
the laws in force in the country.'"61The American army,however, had already discovered
that militarynecessity itselfoften dictated the need for such measures.
Recently,peacekeeping forces in Somalia and the formerYugoslavia have found them-
selves facing similar issues. International peacekeeping forces have occasionally exercised
law enforcement powers over a population or territory.62 If such powers are not included
in the force's mandate, however, pressure may build for the force to assume them as a
matter of necessity.
In particular, such pressure has arisen when an effectivecivilian government that the
peacekeeping force can deal with is lacking. In 1993, for example, substantial military
resources were devoted to an unsuccessful effortto arrest clan leader Mohamed Aidid
for attacks on the United Nations peacekeeping force in Somalia.63 T1e civil chaos in
Somalia undoubtedly played a role in undermniningthe discipline of the peacekeeping
forces there, some of whom committed atrocities against the very population theywere
sent to protect.64
Similar, but less serious, difficultieshave been raised by the presence in Bosnia of
persons charged with war crimes by the International Criminal Tribunal for the former
Yugoslavia. The officialpolicy of the Stabilization Force maintained by the United Nations
and the North Atlantic Treaty Organization in the former Yugoslavia is that it should
not go out of its way to apprehend such persons. On the other hand, the force has
been directed to detain these suspects if they are encountered in the course of routine
peacekeeping operations. Pressure has nevertheless mounted for the force to take a more
active role in pursuing war criminals, and on at least one occasion NATO responded to
that pressure by launching a special operation that captured one suspect and killed
another.65
During the Civil War, President Lincoln and his commanders turned to the doctrine
of militarynecessity as authorityfor provost courts when they found that their armies
r9Annual Message to Congress (Dec. 3, 1861), in LINCOLN, supranote 22, at 279, 287.
6( SeeHYMAN,supranote 8, at 199-202.
"'Regulations,supranote 18, Art.43. For extended commentaryon thisobligation,see BENVENISTI, supra

note 31.
62 SeeTHE CHARTER OF THE UNITED NATIONS: A COMMENTARY 588 (Bruno Simma ed., 1994).
63 SeeLOUIS FISHER, PRESIDENTIAL WAR POWER 153-54 (1995).
64SeeBen Barber, U.S. officersconcedeknowing WASH. TIMES, July27, 1997, at Al. " 'There was
ofatrocities,
constantpressurefromthe lootersand thieves,'Gen. Zinni said. 'Theyattemptedto snatchweapons and food.
We had to be constantlyon the alert.At nighttheycame over the walls to steal.' " Id. at A10. Lt. General
Tony Zinni had been directorof operationsof the UN forcein Somalia. Cf THE CHARTER OF THE UNITED
NATIONS, supranote 62, at 586 ("UNOSOM soldiersalso killed civilians.All thisled to a veryseriouspolitical
controversy over the mandate of the force.").
65 SeeBradleyGraham& RickAtkinson, NATORemainsUncertain AboutFuture PursuitofSuspectedWarCriminals,
WASH. POST, July19, 1997, at A16; BradleyGraham, U.S. Push AgainstBosnian War Criminals Urged,
WASH.
POST, July16, 1997, at Al5; EdwardCody & JonathanC. Randal, NATO Moveson WarCrimes Suspects,
WASH.
POST, July11, 1997, at Al; John F. Harris& Dana Priest,AllianceGetsAggressiveon Arrests,
id.

could not operate effectivelyin a lawless environment. Despite the negative reaction
that followed the futile effortto capture General Aidid in Somalia, it seems likely that
similar legal powers may be inferredwhere civil chaos prevents international peacekeep-
ers from functioning.66
Religion
Religion was another subject that President Lincoln had placed off limits to Union
commanders in the Civil War. In 1862, for example, federal militaryauthorities ordered
the Reverend Samuel McPheeters of the First Presbyterian Church in Saint Louis to
leave Missouri because of his "rebel wife,rebel relatives" and Confederate sympathies.67
Control of his church was also taken away from the regular trustees. Mr. McPheeters
went to Washington to appeal personally to the President, who thereafterwrote to the
federal commander in Missouri that, "after talking to him, I tell you frankly,I believe
he does sympathize with the rebels; but the question remains whether such a man, of
unquestioned good moral character, . . . can, with safetyto the government be exiled,
upon the suspicion of his secret sympathies."68 Despite these misgivings,Lincoln de-
ferred to the commander "on the spot . . . if, after all, you think the public good
requires his removal.' 69 On one point, however, Lincoln was firm:
But I must add that the U.S. government must not, as by this order, undertake
to run the churches. When an individual, in a church or out of it,becomes dangerous
to the public interest, he must be checked; but let the churches, as such[,] take
care of themselves. It will not do for the U.S. to appoint Trustees, Supervisors, or
other agents for the churches.70
He made the point in the last month of the war, in relation to churches in occupied
Louisiana; church property may be seized for militaryreasons, but church institutions
should not be controlled by the military.
While I leave this case to the discretion of Gen. Banks, my view is, that the U.S.
should not appoint trustees for or in any way take charge of any church as such. If
the building is needed for militarypurposes, take it; if it is not so needed, let its
church people have it, dealing with any disloyal people among them, as you deal
with other disloyal people.7'
A similar aversion to dealing with militaryproblems on the basis of religious concerns
was evidenced by the President's revocation of General Grant's bizarre order expelling
. 72
"Jews as a class" from his area of operations.
DestructionofProperty
Lincoln's letters to Senator Browning and General Reynolds reflect a distinct expan-
sion of his thought on the actions military necessity would justify.In 1861 Lincoln
"' A U.S. Departmentof Defensespokesmanhas alreadystatedthatthe NATO Stabilization Force in Bosnia

is authorizedto use "whatevermeanstheyneed to" in orderto detainindictedwarcriminals.SeeNewsBriefing
byAssistantSecretaryof Defense KennethBacon, Dep't of Defense News Release (June 11, 1996).
67 SeeRICHARD S. BROWNLEE, GRAY GHOSTS OF THE CONFEDERACY 164 (U. of Missouri1984) (1958).
68 Letter,Lincoln to Samuel R. Curtis(Jan. 2, 1863), in LINCOLN, supranote 22, at 426, 426-27.
61 Id. at 427. General Curtisresponded to the President'sunsubtlehint and revokedthe exile order. See
BROWNLEE, supranote 67, at 164.

7 Letter,Lincoln to Curtis,supranote 68, at 427. Almosta year later,Lincoln received a petitionfrom
severalcitizensof Saint Louis to restoreMcPheeters"to all his ecclesiasticalrights."Clearlyirritated,and
suspectingthathe was being drawnintoan internaldisputebetweenmembersof the congregation,he replied
byquotinghis directionsto General Curtis,and wenton to writethathe had "never interfered, nor thought
of interfering, as to who shall preach in anychurch. . .. If anyone is so interfering,
bycolor of myauthority,
I would like to have it specifically made knownto me." Letter,Lincoln to OliverD. Filley(Dec. 22, 1863), in
LINCOLN, supranote 22, at 562, 563.
71 EndorsementConcerningNew Orleans Churches (Mar. 15, 1864), in id. at 580.
72 See,
e.g.,MARK NEELY, THE LAST BEST HOPE OF EARTH 149 (1993).

conceived of militarynecessity as covering the seizure of resources primarilyfor the use

of U.S. forces. By 1865, however, he was noting that " [c]otton and other staple articles
of commerce are seizable for militaryreasons." How did seizure of "staple articles of
commerce" come to be considered a matter of militarynecessity?
At the beginning of the war, Lincoln recognized militarynecessity as a limitation on
the old doctrine that all private or public property of the enemy could be confiscated.
This restraintgradually loosened as the war progressed. Thus, in his proclamation calling
out the militia after the fall of Fort Sumter, the President ordered that "the utmost care
. . .be observed. . . to avoid any devastation, any destruction of, or interference with,
property, or any disturbance of peaceful citizens in any part of the country."73A year
later, however, he ordered federal commanders to "seize and use any property,real or
personal, which may be necessary or convenient for their several commands, as supplies,
or for other militarypurposes."74 A year after that, defending the Emancipation Procla-
mation as a proper war measure, he argued that depriving the enemy of usable resources
was justified by militarynecessity:
The most that can be said, if so much, is, that slaves are property. Is there-has
there ever been-any question that by the law of war, property, both of enemies
and friends, may be taken when needed? And is it not needed whenever taking it,
helps us, or hurts the enemy? Armies, the world over, destroy enemies' property
when they can not use it; and even destroy their own to keepitfromtheenemy.75
The seizure and destruction of cotton was a logical step in the expansion of military
necessity. Union armies seized cotton not for their own use, or because of its intrinsic
militaryvalue to the Confederate army, but to deny it to the enemy as an "article of
commerce." As an agricultural region with littlemanufacturing capability,the Confeder-
acy relied on exports, primarily of cotton, to finance foreign purchases of arms and
other war mat6riel. Lincoln was therefore claiming a right, under militarynecessity, to
destroy not merely militarygoods, but economic resources that could buy those goods.
This right was upheld by a U.S.-British arbitral tribunal after the war. Several claims
were submitted for the destruction of British-ownedcotton by federal raiding parties in
the South. The United States successfullydefended the destruction as justified by military
necessity,in light of the special position of cotton as the South's staple crop.76Other cases
upholding the destruction of British-ownedeconomic resources in the South include the
burning of a sawmill that had provided ties for Confederate railroads77 and the razing
of an iron and brass foundry.78
By the end of the Civil War, then, the scope of destruction authorized by military
necessityextended not only to propertyof direct militaryuse, but, as Lincoln had written
to Conkling, to any propertythat "helps us, or hurts the enemy," including the economic
infrastructuresupporting the enemy war effort. The destructive implications of this
doctrine were not fully realized until the development of strategic bombing in the
twentiethcentury.79
73ProclamationCallingMilitiaand ConveningCongress (Apr. 15, 1861), in LINCOLN, supranote 22, at 232.

74 Lincoln, order to Edwin M. Stanton (July22, 1862), in id. at 342, 342-43.
75 Letter,Lincoln toJamesC. Conkling (Aug. 26, 1863), in id. at 495, 497 (emphasisadded).
76 See Report of the U.S. Agent,6 PAPERS RELATING TO THE TREATY OF WASHINGTON 52-53 (1874). The
widelyrecognizedpositionof cottonin the Southerneconomyhad also led even conservativeUnion generals
like McClellan to approve itsdestruction.SeeGRIMSLEY, supranote 10, at 55-56.
7 See Cox's Case (U.S. v. Gr. Brit.), 6 PAPERS RELATING TO THE TREATY OF WA?HINGTON, supra note
76, at 51.
78 SeeSmyth'sCase (U.S. v. Gr. Brit.),id.
79 Article2 oftheHague Convention[IX] on Bombardment byNavalForcesin Time ofWar,Oct. 18, 1907,36
Stat.2351, reprintedin ARMED CONFLICTS, supra note 2, at 811, retreatedfromCivilWar practicebyauthorizing
destructiononlyof "militaryor navalestablishments, depots of armsor war mattriel,workshopsor plantwhich
could be utilizedforthe needs of the hostilefleetor army."Article24(2) of the draft1922/23 Hague Rules

The Expanding Limits ofMilitaryNecessity

After beginning the Civil War with a promise to respect private property and not
interferewith slaveryin the rebellious states, President Lincoln eventually supported, as
militarynecessities, the destruction of cotton, railroads and other economic resources,
and the freeing of all slaves in rebel areas. The continually expanding reach of military
necessity might seem to support Confederate Secretary of War Seddon's assertion that
the doctrine was merely codified mischief. This progression was not an inherent process,
or a case of Lincoln's gradually learning the "true" limitsof militarynecessity.Rather, the
proper limits of militarynecessity changed as Lincoln's national war strategydeveloped.
The historian James B. McPherson has identified four stages in this development. At
first,Lincoln viewed the war as a domestic insurrection whose suppression would require
little more than a police action. This limited war strategywas based on the assumption
that a majorityof Southerners were loyal to the Union, and had merely been swept away
by the passions of the moment when theyvoted for secession.80 This strategyended with
the Union defeat at Bull Run, Virginia, in 1861. It was replaced by a second limited war
strategythat aimed at conquering and occupying Confederate territory, without altering
slaveryor other fundamental Southern institutions.8'In 1862 this strategy-was abandoned
in the face of Confederate victories in battle, to be replaced in turn by a strategythat
focused on the destruction of the Confederate armies. Almost simultaneously, the final
stage was reached, extending to the destruction of any resources, including the institution
of slavery,that supported those armies, and the utilization of any resources, including
the enlistment of freedmen, that could support the federal armies.82 In the starkest
terms, private property and Southern institutions would be destroyed as a means of
destroyingSouthern armies.
THE CONTINUINGLIMITS OF MILITARYNECESSITY

It has recently been suggested that the "object of [a] war" is no longer a suitable
factor to consider in assessing the militarynecessity of an action, because "its meaning
may be indefinitelyextended," which permitsgreater destruction as the war aims expand
on one or both sides.83 While superficially appealing, this suggestion, if generally
adopted, could easily have the opposite effectto that intended. Applying militaryneces-
sitywithout regard to the political goals of the conflict would inevitably authorize all
of Air Warfarewere similarlyrestrictive of attacksagainst economic infrastructure,authorizingdestruction

onlyof "factoriesconstitutingimportantand well-known centresengagedin themanufacture ofarms,ammuni-
tion or distinctively
militarysupplies; [and] lines of communicationor transportation used for-militarypur-
poses." ARMED CONFLICTS, supra,at 207, 210. The Hague Rules neverenteredintoforce,and weredisregarded
by all sides in WorldWar II. See,e.g.,MCDOUGAL & FELICIANO, supranote 6, at 640-52. The currentstateof
the law is summarizedin the officialU.S. Air Force publicationon the law of war as follows:
Controversy existsoverwhether,and thecircumstances underwhich,. . . objects,such as civiliantranspor-
tationand communicationssystems, dams and dikes can be classifiedproperlyas military objectives.The
inherentnatureof the object is not controllingsince even a traditionally
civilianobject,such as a civilian
house, can be a militaryobjectivewhen it is occupied and used by militaryforcesduring an armed
engagement.A keyfactorin classification ofobjectsas militaryobjectivesis whethertheymake an effective
contributionto an adversary'smilitary action so thattheircapture,destructionor neutralizationoffersa
definitemilitary advantagein the circumstancesrulingat the time.. . . Destructionas an end in itselfis
a violationof internationallaw,and theremustbe some reasonable connectionbetweenthe destruction
of propertyand the overcomingof enemymilitary forces.
U.S. DEP'T OF THE AIR FORCE, supranote 6, para. 5-3b(2) (citationomitted).
8 SeeMcPherson,supranote 10, at 41-42.
XlSee id. at 43-44.
82 See id. at 45-48.
83 Henri Meyrowitz, ThePrincipleofSuperfluous
Injuryor Unnecessary INT'L REv. RED CROSS, Mar.-
Suffering,
Apr. 1994, at 98, 106-07.

destruction that could be linked in any way to militaryadvantage; in the eyes of the law,
all wars would be total wars.
To be sure, the objects of wars have always tended to expand or shift in ways that
permit greater destruction at the end of conflicts than at the beginning. Yet this process
has not always been taken to its logical extreme, and even toward the end of lengthy
conflicts, certain levels of destruction may be considered unnecessary in light of the
belligerents' goals. If militarynecessitywere completely cut offfrom the objects of war,
these residual restraintswould presumably be jettisoned as well.
As an example, consider again the strategic stages Professor McPherson identified in
the American Civil War. At each stage of strategy,militarynecessity dictated the imposi-
tion of differentlimits on the destruction and seizure of civilian property. Even at the
final stage, destruction was not indiscriminate and militarynecessity did not amount to
Kriegsraison.The fundamental distinction between combatants and noncombatants was
maintained throughout the war.84Even in the final stage, President Lincoln insisted on
a rational connection between militaryaction and defeat of the enemy. He consistently
rejected militaryinterference with religious institutionsand the destruction of property
merely to harass or punish persons of opposing loyalties.
The status of private houses and their furnishings is one "bright line" that most
Union officers and soldiers observed.85 As Lincoln stated, "Cotton and other staple
articles of commerce are seizable for militaryreasons. Dwelling-houses & furniture are
seldom so."86
In Virginia, General David Hunter's burning of the home of former Governor John
Letcher in 1864 was widely criticized in both the North and the South. Confederate
forces then burned Chambersburg, Pennsylvania, in retaliation.87Thereafter, President
84 SeeGRIMSLEY,supranote 10,at 222-25. After reviewingthehistoricalevidence,Grimsleyrejectscharacteriz-

ing the CivilWar as a "total war" in the 20th-century
sense.
85 Seeid. at 174-79, 198-99. The marchof Sherman'sarmythroughSouth Carolinawas an exception.The
averagefederalsoldierregardedSouth Carolina as responsibleforthe war,and destructionof privatehouses
was farmore widespreadthan it had been in Georgia,or would laterbe in NorthCarolina. Id. at 201-02.
86 See textat note 56 supra.Even General Sherman,whose campaignsin Georgia and the Carolinas have
become a bywordfor "hard," destructive war,ordered thatprivatehomes were not to be molested:
Soldiers mustnot enter the dwellingsof the inhabitants,or commitany trespass;but, duringa halt or
camp, theymaybe permittedto gatherturnips,potatoes,and othervegetables,and to drivein stockin
sightof theircamp. To regularforaging-partiesmustbe intrusted[sic] the gatheringof provisionsand
forage,at any distancefromthe road traveled.
BuRKEDAVIS,SHERMAN'SMARCH31 (VintageBooks 1988) (1980) (quoting Sherman'sField Orders,Nov. 14,
1864). Unfortunately, General Sherman did littleto enforcethisorder,and may have correctlyconcluded
thatitsenforcementwould be impossiblein a volunteerarmyof individualistic 19th-centuryAmericans.Most
of the lootingand destructionof privatehomes on Sherman'smarchwas carriedout by unofficialforaging
parties.SeeGRIMSLEY, supranote 10, at 191-93; DAVIS,supra,at 36-37. One of the weaknessesof the Lieber
Code was thatit did not deal witha commander'sresponsibility for ensuringthathis soldierscomplywith
the laws of war. The issue was not widelyrecognizeduntilthe war crimestrialsfollowingWorld War II. See,
e.g.,The High Command Case, 15 ILR 376, 384-92 (U.S. Mil. Trib. Nuremberg,1948); In reYamashita,327
U.S. 1 (1946). QuerywhetherSherman would be responsibleunder contemporaryconcepts of command
Some of Sherman'ssubordinategeneralsdid punish lootingin a fewcases, seeDAVIS,supra,at
responsibility.
42-43, and even Sherman himselfmade some effortsto preventlooting and returnstolen property,id. at
189-90. During the nightof February17-18, 1865,when Columbia,South Carolina,was burned and looted,
370 looterswere arrestedand 30 wounded by militaryguards. On the other hand, in at least one incident
General Shermanhad directknowledgeof the destructionof an abandoned privatehome (it was set on fire
as he leftafterhavingslept there) and took no action to punish those responsible,see id. at 142. For the
currentstateof internationallaw on thisissue,see W. Hays Parks,Command Responsibility
forWarCrimes, MIL.
L. REv.,Fall 1973, at 1.
87 See GRIMSLEY, supranote 10, at 179-80. Hunter claimed that the house had been burned in lawful
retaliationforLetcher'seffortto inciteguerrillawarfarein Hunter's rear:
I found here a violentand inflammatory proclamationfromJohn Letcher,latelyGovernorof Virginia,
incitingthe populationof the countryto riseand wage a guerrillawarfareon mytroops,and ascertaining

1998] LINCOLN, LIEBER AND THE LAWS OF WTAR 229
Lincoln asked General UlyssesGrantto conclude an agreementwithConfederateCom-

manding General Robert E. Lee "for a mutual discontinuanceof house-burningand
otherdestructionof privateproperty.'88
By proposing,even at the lateststagesof the CivilWar, thatspecial considerationbe
given to the treatmentof privatehouses, Lincoln was takinga position that would
continueto liveinto the twentieth century.The 1907 Hague Regulationson land warfare
specifically forbadebombardmentof undefended"dwellings,"as did the 1907 Conven-
tion on naval bombardment.89 The commissionofjuriststhatdraftedthe 1923 Rules of
Air Warfaresimilarlylisted "dwellings" as immune fromair attackif situatedoutside
the neighborhood of land operations.90Most recently,Protocol Additional I to the
Geneva Conventionscites"a house or otherdwelling"as the typeof objectsthatshould
be "presumed" not to be military objectives.9:
One need not go back as far as the CivilWar to see how a close link between the
objectivesof war and the principleof militarynecessitycan restraindestructioneven
late in a lengthyconflict.For example, duringmost of the Korean War of 1950-1953,
irrigationdams in NorthKorea were not subjectto aerial attack.By 1953, however,an
apparentimpassehad been reachedin thePanmunjomtrucenegotiations.The targeting
staffat U.S. Far EastAirForce (FEAF) proposedattackingthesedamsso thattheresulting
floodingwould destroymuch of theNorthKorean rice crop. The CommandingGeneral
of FEAF, however,was unwillingto approve attacksagainstenemyfood crops as such,
thoughhe did approve air strikesagainstdams located where the floodingwould cut
enemylines of communication.Attacksagainstfood crops were considereda possible
option if the enemyshould entirelybreak offthe trucenegotiations.92 In fact,a truce
was concluded in 1953, and food was neverdirectlytargeted.
Throughoutmost of the Korean War, the United Nations command did not regard
destructionof the irrigationdams, in legal terminology,to be a militarynecessity.In
the finaldaysof the conflict,when it became clear thatheavierdestructionof military
objectiveswas necessaryto meet the goals of thewar,some attackswereauthorized,but
therewas stillno militarynecessityforattackingfood crops as such.
A similarset of eventsoccurrednineteenyearslater,at the end of U.S. participation
in the Vietnamconflict.As noted above,93a considerablenumberof militarytargetsin
the vicinityof Hanoi and Haiphong had neverbeen subjectto air attack.When peace
negotiationsbroke down in October 1972, PresidentNixon in effectdecided thatthis
new situationcreated a militarynecessityforthe destructionof those targets,and they
were attacked.
that afterhavingadvised his fellow-citizensto this course the ex-Governorhad himselfignominiously

takento flight,I ordered his propertyto be burned under myorder,publishedMay 24, againstpersons
practicingor abettingsuch unlawfuland uncivilizedwarfare.
Reportof Major General David Hunter (Aug. 8, 1864), in 37 WAR OF THE REBELLION: A COMPILATION OF THE
OFFICIAL RECORDS OF THE UNION AND CONFEDERATE 1, at 96, 97 (RobertScotted., ser. 1, 1891).
ARMIES, pt.
88 Telegram,Lincoln to Lt. General Grant (Aug. 14, 1864), in LINCOLN, supranote 22, at 427, 428.
89
SeeRegulations,supranote 18, Art.25; ConventionConcerningBombardmentbyNaval Forces in Time
of War, supranote 79, Art.1.
'9 SeeRules of Air Warfare,supranote 79, Art.24(3).
91SeeProtocolAdditionalto the Geneva Conventionsof 12 August 1949, and Relatingto the Protectionof
Victimsof InternationalArmedConflicts,opened Dec. 12, 1977,Art.52, 1125 UNTS 3, reprinted
jor signature in
ARMED CONFLICTS, supranote 2, at 621.
9 See ROBERT FUTRELL, THE UNITED STATEs AIR FORCE IN KoRrA 1950-1953, at 666-69 (rev. ed. 1983).
The FEAF staffargued thatthe rice,mostofwhichwas destinedforthe enemyarmed forces,was a legitimate

militarytarget,a positionwithrespectableroots in the Lieber Code, supranote 4, Article17: "War is not
carriedon by arms alone. It is lawfulto starvethe hostilebelligerent,armed or unarmed,so thatit leads to
the speedier subjectionof the enemy."
93 Seetextat notes 48-50 supra.

This is not the place to discusswhetheror not the previousU.S. assessment(i.e., that
attackingHanoi and Haiphong was not militarily necessary)was correct.The point is
that such a judgment had been honestlymade by PresidentJohnson,and that this
decision effectivelylimitedcertaintypesof destructionuntil the last daysof American
participationin the VietnamWar.
CONCLUSION: THE PRINCIPLE TODAY, AND IN THE FUTURE
In militarymanuals and academic texts,militarynecessityis formallyacknowledged

as one oftheprimary foundationsofthemodernlawofwar.One wouldexpect,therefore,
thatthe principlewould have been frequentlyinvokedwheneverthatbody of law has
facednew challenges,such as protectingthe environmentduringcombator responding
to the widespreadabuse of land mines in the 1980s.
In fact,however,the principlehas been notablyabsentfromdiscussionof theseissues.
That military necessitywas originallya limiton stateaction,and should stillfunctionas
a limit,seemsto have been forgotten. The moderndenigrationof military necessitygoes
back at least to the NurembergtrialsafterWorldWar II, wheresome defendantsargued
thatmilitary necessityjustifiedtheiratrocitiesagainstcivilianpopulations.94In an echo
of Confederatecriticisms of 130 yearsago, militarynecessityis widelyregardedtodayas
an insidiousdoctrineinvokedtojustifyalmostanyoutrage.As a result,the principlehas
not been allowed to playthe creativerole thatit is capable of playing.
The U.S. Government'sresponse to the land-minecrisisservesas an example. This
humanitariancrisisarose fromthe indiscriminatewartimeuse of antipersonnelland
mines,whichhave endangeredciviliansforyearsor even decades afterthe conflicthas
ended. Partof the U.S. responseto thissituationwas a presidentialprohibitionon the
use of antipersonnelland mines by the Americanarmed forces,unless the mines are
fittedwithdevicesthatwillneutralizethemaftera set period of time.95
The onlyexceptionto thispolicyallowsthe use of permanentland minesin defense
of the Korean DemilitarizedZone (DMZ). Since 1953 thiszone has followedthe course
of the cease-fireline that ended hostilitiesbetween North and South Korea. In the
contextof a long-standing, heavilyfortifiedde factodemarcationline separatinghostile
armies,permanentland mines have obvious militaryadvantages,while the danger to
civilians is low.
On itsface,thispolicyappears to be a clear exampleoftheapplicationof theprinciple
of militarynecessity.The President'smilitaryadviserspresumablytold him that such
mineswere necessaryin Korea but not elsewhere,and the Presidentacted accordingly.
Nowhere,however,is thisor any otherlegal principleinvokedas a basis forthe policy.
The President'sban on land-mineuse is nothingmore thana policy,albeitone adopted
in the hope of encouragingthe negotiationof a legallybindingban on antipersonnel
land mines.As evidenceof United Statespracticein internationallaw,itsjuridicalvalue
is low,since itsadoption was not anchored to any acknowledgedlegal obligation.
From a juridical standpoint,the land-minepolicywould have been much stronger
had it been clearlybased on the principleof militarynecessity.Suppose the President
had adopted a slightlydifferent approach. He mighthave announced that,in view of
thesurgein civiliansufferingproduced bytheindiscriminate use ofland minesin recent
conflicts,he had asked the Secretaryof Defense and theJointChiefsof Staffto apply
the principleofmilitary necessityto reassessingthe military
need forpermanentantiper-
sonnel mines.In response,he could say,theyhad advisedhimthatin onlyone location-
94 See,e.g.,In reVon Leeb (High Command Case), 15 ILR 376, 397 (U.S. Mil. Trib. Nuremberg,1948); In
reList (Hostages Trial), id. at 632, 646-47 (U.S. Mil. Trib. Nuremberg,1948).
95 SeeStatementby PresidentBill Clinton (May 16, 1996), in New U.S. MinePolicy,
DEFENSE ISSUES No. 40.

the Korean DMZ-was the use of such weapons still necessary. As formulated in the
Lieber Code and contemporary militarymanuals, militarynecessity permits only that
degree of force necessary to defeat the enemy.96In accordance with the country's obliga-
tions under international humanitarian law, the President would therefore order an end
to the use of permanent antipersonnel mines by the United States Armed Forces. As
an act reflecting obligations under an existing legal principle, thisjuridically stronger
approach would have been a mightierblow against the use of antipersonnel land mines.
Discussions of environmental warfarehave also seen a reluctance to apply the principle
of militarynecessity as a limitation on state action. Afterthe 1991 Persian Gulf war, the
U.S. Congress requested that the Defense Department assess various issues that had
arisen during that conflict, including the legality of Iraqi "environmental terrorism."
Afterconsultation with allied governments,the Department reported that Iraq's deliber-
ate release of crude oil into the Persian Gulf was a war crime under existing international
law because it had caused unnecessary destruction of property under Article 23(g) of
the 1907 Hague Regulations.97While not incorrect, this analysis focused on a collateral
effect (loss of property) rather than the central problem (injury to the gulf ecosystem).
It is the equivalent, on the international level, of charging a gangster with failure to pay
income taxes rather than with the extortion, usury, drug dealing and other crimes that
gave rise to the income. What is even more disturbing is that this analysis may suggest
that the wild animal and plant life of the gulf are entitled to no protection under the
customary laws of war, because they are neither the public property of any government
nor the private property of any person.
Iraq's environmental attack appears to have served no militarypurpose whatsoever,
and was a palpable violation of the principle of militarynecessity. Yet the principle was
not invoked in this part of the Defense Department's report to Congress, even though
it would have stated a broader and more appropriate legal basis for denouncing Iraq's
action.
Today, militarynecessity is widely regarded as something that must be overcome or
ignored if international humanitarian law is to develop, and its original role as a limit
on militaryaction has been forgotten.As a result, the principle has not been applied in
new situations where it could serve as a significant legal restraint until more specific
treatyrules or customs are established.
The reminder that militarynecessity can limit the destruction of war, beyond serv-
ing as a justification for destruction, is the most important legacy of Lieber's develop-
ment and Lincoln's application of militarynecessity over 130 years ago. The combina-
tion of political prudence, moral care and military realism with which Lincoln used
military necessity should serve as a model for military and civilian officials so that
the principle may again be applied in situations not governed by any specific rule of
humanitarian law.
96
See U.S. DEP'T OF THE NAVY,THE COMMANDER'SHANDBOOK ON THE LAW OF NAVAL OPERATIONS, para.
6.2.5.5.2 (Naval Warfare Pub. No. 1-14M, 1995); FM 27-10,supra note 6, para. 3.a.; Lieber Code, supra note
4, Art.14.
97 See Department of Defense Report to Congress on the Conduct of the Persian Gulf War-Appendix on
the Role of the Law of War,31 ILM 612, 636-37 (1992); Regulations,supra note 18, Art.23(g).


CARNAHAN, Lincoln, Lieber and The Laws of War

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

CARNAHAN, Lincoln, Lieber and The Laws of War

Enviado por

Direitos autorais:

Formatos disponíveis

Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

ORIGINS AND INFLUENCE OF THE LIEBER CODE

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

In draftinghis code, Lieber drew upon a miscellany of historical and contemporary

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

On May9, 1862,GeneralHunter,commandingfederalforcesin Union enclavesalong

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

Althoughnotreadilyapparenttoday,recognitionofmilitary necessityas a legal precon-

Unfortunately, the Confederateauthoritiesdid not welcome the Lieber Code as a

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

. . . They cannot framemischiefinto a code or make an institutedsystemof

The laterhistoryof the doctrinein Germanylends supportto ConfederateSecretary

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

justify"acts of atrocityand violencewhichhave . . . shockedthe moralsense of civilized

LINCOLN'S PRACTICE OF MILITARY NECESSITY

Anotherwayto framethese questions is to ask what PresidentLincoln believed he

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

secede, and relationsbetweenthe federalGovernmentand the stateswere governedby

" SeeDONALD, supranote 33, at 302-03.

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

I do not saythatCongressmightnot withproprietypass a law,on the point,just

Lincoln mayappear to have repudiatedthisreasoningwhenhe issuedhis ownprelimi-

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

unjustifiedwhen the militaryadvantage to be gained is not significantand political

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

Under these circumstances, I have been urgentlysolicited to establish, by military

56 Letter,Lincoln to Reynolds,supranote 55, at 668.

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

"'Regulations,supranote 18, Art.43. For extended commentaryon thisobligation,see BENVENISTI, supra

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

"' A U.S. Departmentof Defensespokesmanhas alreadystatedthatthe NATO Stabilization Force in Bosnia

BROWNLEE, supranote 67, at 164.

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

conceived of militarynecessity as covering the seizure of resources primarilyfor the use

73ProclamationCallingMilitiaand ConveningCongress (Apr. 15, 1861), in LINCOLN, supranote 22, at 232.

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

The Expanding Limits ofMilitaryNecessity

THE CONTINUINGLIMITS OF MILITARYNECESSITY

of Air Warfarewere similarlyrestrictive of attacksagainst economic infrastructure,authorizingdestruction

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

84 SeeGRIMSLEY,supranote 10,at 222-25. After reviewingthehistoricalevidence,Grimsleyrejectscharacteriz-

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

Lincoln asked General UlyssesGrantto conclude an agreementwithConfederateCom-

that afterhavingadvised his fellow-citizensto this course the ex-Governorhad himselfignominiously

The FEAF staffargued thatthe rice,mostofwhichwas destinedforthe enemyarmed forces,was a legitimate

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

CONCLUSION: THE PRINCIPLE TODAY, AND IN THE FUTURE

In militarymanuals and academic texts,militarynecessityis formallyacknowledged

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

This content downloaded from 131.114.212.96 on Wed, 11 Sep 2013 08:56:36 AM

Você também pode gostar